Of course, the government is quite boldly going for it in arguments against the First Amendment all the time, these days, so I take that boldness as part and parcel of a larger assault on civil society. In 2012, the pattern is well established: Yes, government is going to boldly go for it and argue against our First Amendment "privileges." (See also.)
In any case, my plan was to read the government's brief this morning and then write a long post about it. But the government destroyed my plans with the raw power of their comedy gold, and now I'm just going to start posting as I go through the awful thing. The government's novella is below, if you feel like tasting your own bile. While laughing! It's sort of a repulsive comedy effect, and someone should add the U.S. Attorney's Office for the District of Massachusetts to this page. They've earned it.
Start with this great piece of narrative juxtaposition, from pg. 25 (of the PDF file, which is numbered as pg. 13 in the brief). First, the government's novella concludes a paragraph with the argument that Moloney and McIntyre shouldn't be permitted to intervene: "Their interests were fully and forcefully advanced by Boston College." So the researchers shouldn't be allowed to participate in any effort against the subpoenas, because BC is already waging the whole fight -- the university is "fully and forcefully" contesting any issues that its researchers could possibly raise.
Very next sentence, starting the following paragraph, with emphasis added: "The district court’s proper denial of appellants’ motion to intervene forecloses review of the merits of the court’s ruling on the motion to quash, as neither Boston College nor the government appealed that ruling."
So BC's interests are the interests of its researchers; there can be no sunlight between them, because BC is "fully and forcefully" fighting out all the issues the researchers might raise. And, anyway, why are we still talking about this stuff the researchers keep bringing up -- doesn't the court realize that BC already gave up on this part?
Boston College is fully and forcefully advancing the interests of its researchers by not appealing the ruling the researchers wish to appeal. Back to back sentences. Not the first time I've wondered: Does the government require that its lawyers be willfully obtuse as a condition of hiring, or is it something they learn on the job?
Much more throughout the day, as time permits.
Govt Brief 11-2511