Taking Aim At the Privilege   

Microsoft tries unsuccessfully to obtain notes and tapes from two authors.

When Microsoft needed to bolster its defense in the antitrust suit filed by the Justice Department, it subpoenaed a manuscript written by two business school professors recounting Microsoft's and Netscape's battle for supremacy in the Internet software marketplace. "Competing on Internet Time," a book published last month, was based on extensive interviews with Net-scape executives.

Not satisfied with the manuscript alone, Microsoft also demanded background notes and tapes from the authors, David Yoffie of Harvard University and Michael Cusu-mano of the Massa-chusetts Institute of Technology. They resisted, arguing that a scholar's First Amendment privilege to protect confidential sources and information, similar to a reporter's privilege, should apply. The professors claimed that business executives would not speak candidly to academic researchers if those researchers could be forced to identify them.

In October in Boston, U.S. District Judge Richard Stearns chose not to address the constitutional issue but quashed the subpoena, finding that Microsoft could get the same information simply by talking to the Netscape executives. A Microsoft spokesman told the Wall Street Journal an appeal to the 1st U.S. Circuit Court of Appeals was "likely."

This isn't the first time an academic has tried to invoke a First Amendment privilege. In 1993, doctoral candidate Rik Scarce was jailed for five months by a federal judge in Spokane, Washington, after refusing to testify before a grand jury concerning his interviews with an animal rights activist suspected of taking part in a raid on a university laboratory.

The 9th U.S. Circuit Court of Appeals upheld the trial judge's order, even though it assumed, without explicitly finding, that scholars enjoy a privilege analogous to the journalist's privilege. Citing the Supreme Court's 1972 ruling in Branzburg vs. Hayes, the 9th Circuit said the Constitution gives neither scholars nor journalists the right to withhold relevant information sought in good faith by a grand jury.

If Microsoft takes its case to the federal appeals court in Boston, the 1st Circuit will have an opportunity to revisit its own ruling on scholar's privilege, issued in 1972, shortly before the Supreme Court decided Branzburg. In that case, Samuel Popkin, a Harvard assistant professor who had written extensively on the Vietnam War, was held in contempt when he refused to testify before a federal grand jury investigating the illegal dissemination of the then-classified Pentagon Papers. Like Scarce and the business professors, Popkin claimed the Constitution protected him from disclosing his confidential sources.

The 1st Circuit acknow-ledged that making scholars testify about confidential sources, particularly government officials, could undermine the flow of information to the public. It allowed Popkin to refuse to speculate about who in Massachusetts might have had contraband copies of the Pentagon Papers, stating that "scholars ought not to go to prison for refusing to give their opinions or beliefs." But it declined to bestow on academics a broader constitutionally based privilege.

In his concurring opinion, Judge Bailey Aldrich questioned whether Popkin's bid for an all-encompassing scholar's privilege would serve the public interest. "Perhaps I am old-fashioned, but I was taught that a scholarly study was valuable to the extent that it disclosed its sources. How does Popkin know that he, and hence his public, is not being hornswoggled by a source?"

That question has been asked about journalists who rely on undisclosed sources. In September, the influential 2nd U.S. Circuit Court of Appeals in Manhattan sent shock waves through media circles when, in Gonzales vs. NBC, it held unequivocally that the constitutional privilege applies to confidential materials alone.

The panel not only rejected the argument that subpoenas interfere with newsgathering, but suggested that, "to the extent that the threat of subsequent analysis of editorial decisions increases the accountability of editors for their presentation of the news, such scrutiny is likely to make the final news product more complete, accurate and reliable."

The panel left intact an earlier precedent recognizing a First Amendment privilege for confidential material. But another court may, in the future, seize upon that casual reference to the salutary effects of disclosure to justify abolishing any privilege for reporters and scholars alike.

Meanwhile, some journalists continue to debate the use of confidential sources as an ethical matter. That may be an intellectually intriguing exercise, but it reminds me of Nero fiddling while Rome burned. Only this time, the First Amendment is at stake.