The Supreme Court's 2013 decision in Clapper v. Amnesty International USA dealt with the government's electronic surveillance authority under the Foreign Intelligence SurveillanceAct (FISA) Amendments. In a 5- 4 opinion, the Court held that a variety of U.S. persons, including attorneys and media organizations, did not have standing to challenge the constitutionality of the FISA Amendments because the plaintiffs' fear of future unlawful surveillance was not "certainly impending." Depending on how lower courts choose to interpret Clapper, the decision could have a significant impact on the doctrine of fear-based standing, which allows plaintiffs to establish standing based on fear of future injury. While Clapper could be read as a directive to severely limit the scope of fear-based standing, it could also be reconciled with past precedent or limited to the foreign affairs context. However, the most accurate reading of the decision reveals that the Clapper Court devised a slightly stricter standing doctrine where the "certainly impending" test should be flexibly applied. This theory is supported by footnote five of the opinion, which references an alternative and more lenient "substantial risk" standing inquiry. This Note argues that lower courts should apply the more lenient footnote five test when hearing a constitutional challenge to a statute where the alleged fear of future harm is a threat of prosecution or the "chilling"of First Amendment rights
McDowell, Amanda M.
"The Impact of Clapper v. Amnesty International USA on the Doctrine of Fear-Based Standing,"
Georgia Law Review: Vol. 49:
1, Article 6.
Available at: https://digitalcommons.law.uga.edu/glr/vol49/iss1/6