National Veterans Legal Services Program v. United States

January 23, 2019 • Legal Briefs
By Brett Max Kaufman, Ben Wizner, and Ilya Shapiro

When people lack the means to hold their government accountable, tyranny flourishes. The First Amendment secures the public’s right to access public information, acting as one of many safeguards against government officials’ abusing their authority. James Madison famously quipped that “Popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” Court records are one such form of information, and the right to acquire them serves as an important check on the judiciary.

The Administrative Office of the U.S. Courts (AO) runs the Public Access to Court Electronic Records (PACER), charging fees for people to access court records online. In the 1990s, PACER fees were much higher than the cost of providing the service; the AO overcharged and used the fees to subsidize other aspects of judicial administration. As a solution, Congress passed the E‐​Government Act, which authorizes fees only “as a charge for services rendered” and “only to the extent necessary” to “reimburse expenses” incurred. Despite that law, the AO still runs a large surplus from PACER and spends it on different projects.

The National Veterans Legal Services Program challenged the validity of those fees. The case is now before the specialized U.S. Court of Appeals for the Federal Circuit, where Cato has joined the ACLU and several other organizations on an amicus brief.

The Supreme Court uses a two‐​pronged “experience and logic” test to determine whether a right to access specific types of records is protected under the First Amendment. The experience prong asks if the public has traditionally had access to a type of record, while the logic prong asks whether such access plays a “significant positive role” in a governmental process. Since there is a long history of public access to court records, and this access acts as a check on the judiciary, it seems clear that a government action that impedes public access to judicial records, like PACER fees, must be narrowly tailored to meet a compelling interest. Here, the government has not met that burden of proof. Instead, the AO claims that it has congressional authority to impose unnecessary costs—an idea that even the author of the statute has refuted.

Although society and technology develop over time, rights—such as the right to access court records—are unchanging. The Federal Circuit should reject the government’s interpretation of the E‐​Government Act because it would raise a substantial constitutional question about congressional authority to intrude on the First Amendment, and should instead affirm the idea that people have the right to access court records without having to pay prohibitive costs.

About the Authors
Brett Max Kaufman
Ben Wizner
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.