RCFP, media groups challenge FISA ruling

Posted November 27, 2013

A FISA court decision to deny standing to a legal challenge from a law school clinic violates the First Amendment right of access to court proceedings, which all members of the public share equally, and casts an unnecessary shadow over a judicial process already shrouded in secrecy, the Reporters Committee and 25 media organizations argued in a brief to the Foreign Intelligence Surveillance Court Tuesday.

In September, the FISA court denied standing to the Media Freedom and Information Access Clinic (MFIAC) at Yale Law School, which is working with the American Civil Liberties Union to gain access to FISA court decisions regarding the legal basis of NSA surveillance programs. In addition to challenging the court’s standing decision, the Reporters Committee friend-of-the-court brief calls on the court to grant motions from MFIAC, ACLU and ProPublica to release those opinions.

“Public access to court proceedings is the linchpin of public acceptance of the legitimacy and credibility of judicial institutions. This right has long been understood as one held by the public at large under the First Amendment and at common law, with the news media often acting as a proxy – but never a substitute – for the general public,” the brief argued. “This Court’s decision on September 13, 2013 to exclude the Media Freedom and Information Access Clinic at Yale Law School (MFIAC) from that right by concluding that the group lacked standing, and to adopt a narrow test under which it found that the ACLU had standing, interferes with the most basic constitutional commandments and common-law traditions underlying the laws of access to courts, and is particularly problematic in a court already so closed off from public view.”

“Though the news media traditionally are at the forefront of access cases, public interest groups such as the ACLU and the Yale law clinic, as proxies for the public, should have no less standing to fight for that fundamental right,” said Reporters Committee Executive Director Bruce D. Brown. “Precedential opinions of the FISA court should be available for public oversight – regardless of who is asking for them.”

Joining the Reporters Committee on the brief were the American Society of News Editors; Atlantic Media, Inc.; Bay Area News Group; Belo Corp.; Bloomberg L.P.; Courthouse News Service; The E.W. Scripps Company; First Amendment Coalition; Gannett Co., Inc.; Hearst Corporation; Investigative Reporters and Editors; Investigative Reporting Workshop at American University; The McClatchy Company; Media Consortium; The National Press Club; National Press Photographers Association; National Public Radio, Inc.; The New York Times Company; The New Yorker; North Jersey Media Group Inc.; Online News Association; POLITICO LLC; Radio Television Digital News Association; The Seattle Times Company; and The Washington Post.