Volume 112

The Common Law and First Amendment Qualified Right of Public Access to Foreign Intelligence Law

by Laura K. Donohue

This common law right [of public access] is not some arcane relic of ancient English law. To the contrary, the right is fundamental to a democratic state. . . . Like the First Amendment, . . . the right of inspection serves to produce “an informed and enlightened public opinion.” Like the public trial guarantee of the Sixth Amendment, the right serves to “safeguard against any attempt to employ our courts as instruments of persecution,” to promote the search for truth, and to assure “confidence in . . . judicial remedies.” Footnote #1 content: United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976) (third omission in original) (footnotes omitted) (first quoting Grosjean v. Am. Press Co., 297 U.S. 233, 247 (1936); and then quoting In re Oliver, 333 U.S. 257, 270 n.24 (1948)), rev’d on other grounds sub nom. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978).


For millennia, public access to the law has been the hallmark of the rule of law. To be legally and morally binding, rules must be promulgated. Knowledge of the law serves as the lynchpin for democratic governance. As philosopher Jeremy Bentham explained,

Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance. Footnote #2 content: 1 JEREMY BENTHAM , RATIONALE OF JUDICIAL EVIDENCE , SPECIALLY APPLIED TO ENGLISH PRACTICE 524 (1827)

Nearly every modern jurisprudence theorist follows suit. John Rawls considered publicity of a society’s legal tenets to be a formal constraint. Footnote #3 content: See JOHN RAWLS , A THEORY OF JUSTICE 130, 133 (1971). John Finnis stated that the justness of a law depends upon whether it has been made publicly available. Footnote #4 content: See JOHN FINNIS , NATURAL LAW AND NATURAL RIGHTS 270–73 (2d ed. 2011). H.L.A. Hart’s famous “rule of recognition” required that citizens and officials know what the law is and how it is being implemented.  Footnote #5 content: See H. L. A. HART, THE CONCEPT OF LAW 100–01 (2d ed. 1994). Lon Fuller’s eight principles, which define law, include, inter alia, the requirement that rules be widely promulgated to ensure that society knows their remit.  Footnote #6 content: See LON L. FULLER, THE MORALITY OF LAW 39, 51 (1964). He emphasized the importance of consistency between the law as written and applied. For Fuller, a failure to meet the requirements “does not simply result in a bad system of law; it results in something that is not properly called a legal system at all.” Footnote #7 content: Id. at 39.

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