The case centres on interviews with Northern Irish Republicans and Loyalists, stored at Boston College and subpoenaed last year on behalf of the Police Service of Northern Ireland under an international agreement. The subpoena stemmed from an investigation into the 1972 abduction and killing by the IRA of alleged informant Jean McConville.
A lower-court judge has already cleared the way for some of the transcripts from the so-called Belfast Project to be handed over. But, frustrated by the lack of forcefulness with which the university has challenged the subpoenas, two interviewers have themselves appealed.
Eamon Dornan, attorney for researchers Ed Moloney and Anthony McIntyre, told the First Circuit Court of Appeals that the US State Department had conducted a security assessment of threats to Mr McIntyre's US-born wife, and that Mr McIntyre "has been branded an informer in some parts" for conducting the interviews. "Boston College has institutional concerns, but the stakes for my clients are demonstrably higher," he said.
Chief Judge Sandra Lynch raised the question of whether the First Amendment to the US Constitution, which protects journalists against being forced to surrender their notes, would provide "an academic privilege akin to" that protection.
"There's not a recognised privilege that would protect someone from giving evidence, absent a strong countervailing interest," responded US government attorney Barbara Healy Smith. She added that the lower court judge had considered any First Amendment claim in the case brought by Boston College.
Boston College has also appealed part of the lower court's decision, challenging its ruling that the oral histories genuinely cast enough light on the killing of Ms McConville to outweigh the threat posed to academic freedom.
That appeal has been pushed back to September, and decisions in both cases are likely to be months away.