First Amendment advocacy groups do have the right to argue for access to sealed information from the secretive Foreign Intelligence Surveillance Court, a court ruled Friday afternoon.
The Foreign Intelligence Surveillance Court of Review — the highest of the surveillance review courts, below the US Supreme Court — rejected the Justice Department’s argument that outside groups shouldn’t be able to petition the FISC at all under the First Amendment to get access to sealed portions of opinions.
The court did not address whether the groups that petitioned for access, the American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School, can get the information they’re after. Instead, the court tackled a critical threshold issue: Whether the groups had standing to come before the court in the first place to ask for that access. Press freedom advocates saw the case as an important test of how much the FISC’s mostly closed doors could be open to the public.
The three judges who sit on the Court of Review agreed with a lower court’s conclusion that the ACLU and Yale media freedom clinic had shown that their claim of a First Amendment right of access to the information at issue was “judicially cognizable” — that is, that a court could recognize it. The court found that the petitioners had to only clear the “low bar” of showing that their claim wasn’t “completely devoid of merit” or “wholly insubstantial and frivolous.”