North Jersey Media Group, Inc. v. Ashcroft

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-8-2002
North Jersey Media v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-2524
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PRECEDENTIAL
Filed October 8, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2524
NORTH JERSEY MEDIA GROUP, INC.;
NEW JERSEY LAW JOURNAL
v.
JOHN ASHCROFT, Attorney General
of the United States; MICHAEL CREPPY, HON.
John Ashcroft, Attorney General of the
United States and Michael Creppy, Chief
Immigration Judge of the United States, Appellants
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-00967)
District Judge: Honorable John W. Bissell, Chief Judge
Argued: September 17, 2002
Before: BECKER, Chief Judge, SCIRICA and
GREENBERG, Circuit Judges.
(Filed: October 8, 2002)
ROBERT D. McCALLUM, JR.,
ESQUIRE
Assistant Attorney General
CHRISTOPHER J. CHRISTIE,
ESQUIRE
United States Attorney
GREGORY G. KATSAS, ESQUIRE
(ARGUED)
Deputy Assistant Attorney General
SHARON SWINGLE, ESQUIRE
ROBERT M. LOEB, ESQUIRE
Attorneys, Appellate Staff
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, NW
Washington, DC 20530-0001
Counsel for Appellants
STEVEN R. SHAPIRO, ESQUIRE
LUCAS GUTTENTAG, ESQUIRE
LEE GELERNT, ESQUIRE (ARGUED)
American Civil Liberties
Union Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
LAWRENCE S. LUSTBERG,
ESQUIRE
SHAVAR D. JEFFRIES, ESQUIRE
Gibbons, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102-5497
EDWARD BAROCAS, ESQUIRE
American Civil Liberties Union of
New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, NJ 07102
2
DAVID COLE, ESQUIRE
Georgetown University Law Center
60 New Jersey Avenue, NW
Washington, DC 20001
NANCY CHANG, ESQUIRE
SHAYANA D. KADIDAL, ESQUIRE
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012-2317
Counsel for Appellees
DAVID A. SCHULZ, ESQUIRE
Clifford, Chance, Rogers & Wells
200 Park Avenue
New York, NY 10166
Counsel for Amicus-Appellees
OPINION OF THE COURT
BECKER, Chief Judge.
This civil action was brought in the District Court for the
District of New Jersey by a consortium of media groups
seeking access to "special interest" deportation hearings
involving persons whom the Attorney General has
determined might have connections to or knowledge of the
September 11, 2001 terrorist attacks. This category was
created by a directive issued by Michael Creppy, the Chief
United States Immigration Judge, outlining additional
security measures to be applied in this class of cases,
including closing hearings to the public and the press.
Named as defendants in the suit were Attorney General
John Ashcroft and Chief Judge Creppy. The District Court
found for the media plaintiffs and issued an order enjoining
the Attorney General from denying access, from which he
now appeals.
The District Court’s order was accompanied by an
opinion which provides the framework for this appeal, at
the heart of which lay a number of conclusions. First, the
Court held that the case was governed by the test
3
developed in Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980), a murder case in which the trial judge had
ordered that the courtroom be cleared of all persons except
witnesses. In striking down the closure order, the Supreme
Court noted an "unbroken, uncontradicted history" of
public access to criminal trials in Anglo American law
running from "before the Norman Conquest" to the present.
It emphasized that it had not found "a single instance of a
criminal trial conducted in camera in any federal, state, or
municipal court during the history of this country." Id. at
565-73. The Supreme Court held that the right of the press
and public to attend criminal trials "is implicit in the
guarantees of the First Amendment." Id. at 580. While the
Court acknowledged the State’s argument that the
Constitution nowhere explicitly guarantees the public’s
right to attend criminal trials, it nonetheless held the right
implicit due to the fact that the Framers drafted the
Constitution against a backdrop of popular access.
In its opinion in this case, the District Court rejected the
Government’s argument that administrative hearings in
general, and deportation hearings in particular, are not
subject to the Richmond Newspapers two-part"experience
and logic" test because they are of a fundamentally different
nature. Instead, the Court applied that test, which asks
first whether a particular proceeding has a history of
openness, and then whether openness plays a positive role
in that proceeding. With respect to the experience inquiry,
the District Court relied especially on a line of Third Circuit
cases which has applied Richmond Newspapers to find
access to a number of auxiliary criminal proceedings, as
well as to civil cases. The Court also relied on two cases in
which we applied Richmond Newspapers to determine
whether access should be granted to administrative
proceedings, although we concluded in each instance that
there was no access. In short, the District Court reasoned
that these cases supported application of Richmond
Newspapers, and, applying Richmond Newspapers, found
that there was a sufficient history of open deportation
proceedings to satisfy the Richmond Newspapers experience
test.
Turning to the logic prong, the District Court held that
policy considerations strongly favored media access.
4
Significantly, however, in evaluating the logic prong, the
Court did not consider the policies militating against media
access, including those identified in a declaration filed by
Dale Watson, Counterterrorism Chief of the Federal Bureau
of Investigation, which explained the danger of security
breaches entailed in opening the hearings. In brief, the
Watson Declaration represents that insight gleaned from
open proceedings might alert vigilant terrorists to the
United States’ investigative tactics and could easily betray
what knowledge the government does -- or does not--
possess. Watson submits that even details that seem
innocuous in isolation, such as the names of those
detained, might be pieced together by knowledgeable
persons within the terrorist network, who could in turn
shift activities to a yet-undiscovered terrorist cell. Because
immigration judges cannot be expected accurately to assess
the harm that might result from disclosing seemingly trivial
facts, Watson explains, seeking closure on a case-by-case
basis would ineffectively protect the nation’s interests.
Although existing caselaw on the logic prong has
discussed only the policies favoring openness, we are
satisfied that the logic prong must consider the flip side of
the coin. Indeed, the Supreme Court seems to have
contemplated this, for in formulating the Richmond
Newspapers test it asked "whether public access plays a
significant positive role in the functioning of the particular
process in question." Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 8 (1986) (emphasis added). Any inquiry into
whether a role is positive must perforce consider whether it
is potentially harmful. The District Court, however, failed to
consider the Watson Declaration under its logic inquiry,
examining it only in conjunction with the Newspapers’
argument that the Creppy Directive failed strict scrutiny, a
position that it endorsed.
While we believe that the notion that Richmond
Newspapers applies is open to debate as a theoretical
matter, we must yield to the prior precedent of this Court,
and hence will apply it to the facts. We note, however, that
we are not bound by dicta in those decisions, including the
most far reaching, Whiteland Woods, L.P. v. Township of
West Whiteland, 193 F.3d 177 (3d Cir. 1999), which we
discuss at length infra.
5
The only Circuit to deal with these issues has resolved
them in favor of the media. See Detroit Free Press v.
Ashcroft, 2002 U.S. App. LEXIS 17646 (6th Cir. 2002).
However, we find ourselves in disagreement with the Sixth
Circuit. In our view the tradition of openness of deportation
proceedings does not meet the standard required by
Richmond Newspapers, or even its Third Circuit progeny.
Deportation procedures have been codified for
approximately 100 years but, despite their constant
reenactment during that time, Congress has never explicitly
guaranteed public access. Indeed, deportation cases
involving abused alien children are mandatorily closed by
statute, and hearings are often conducted in places
generally inaccessible to the public. While INS regulations
promulgated in 1964 create a rebuttable presumption of
openness for most deportation cases, we conclude that a
recently-created regulatory presumption of openness with
significant statutory exceptions does not present the type of
"unbroken, uncontradicted history" that Richmond
Newspapers and its progeny require to establish a First
Amendment right of access.
The most difficult case for the government is FMC v.
South Carolina State Ports Authority, 122 S. Ct. 1864
(2002). In holding that state sovereign immunity bars an
administrative agency from adjudicating a private party’s
complaint against a nonconsenting state, the Supreme
Court recognized that "formalized administrative
adjudications were all but unheard of " during the Framers’
time. Id. at 1872. It nevertheless found that because
Federal Maritime Commission adjudications so strongly
resemble civil suits, they "are the type of proceedings from
which the Framers would have thought the States
possessed immunity when they agreed to enter the Union,"
id., and it concluded that state sovereign immunity applies.
We recognize that, at least since the 1960s, formalized
deportation proceedings have borne an undeniable
procedural resemblance to civil trials, and that, read
broadly, Ports Authority’s language might therefore suggest
that the same First Amendment rights exist in each
context. While we find the issue debatable, as we explain
more extensively infra, we believe that Ports Authority’s
6
approach was inextricably tied to its underlying premise
that sovereign immunity shields nonconsenting states from
complaints brought by private persons, regardless of where
private persons bring those complaints. In contrast, we find
that there has never been a fundamental right of access to
all government proceedings. Even today, many are closed
by statute, including such frequent and important matters
as Social Security hearings. Without a fundamental right of
access comparable to nonconsenting states’ right to
freedom from private claims, we decline to loose Ports
Authority from its Eleventh Amendment moorings.
We also disagree with the Sixth Circuit as to the import
of the Richmond Newspapers logic prong. We note
preliminarily that, in the jurisprudence developed thus far,
the logic prong does not appear to do much work in the
Richmond Newspapers approach, for we have not found a
case in which a proceeding passed the experience test
through its history of openness yet failed the logic test by
not serving community values. Under the reported cases,
the second prong of the Richmond Newspapers test has
been applied to inquire whether openness plays a positive
policy role in a given proceeding. But, as we have explained,
that calculus perforce must take account of the flip side --
the extent to which openness impairs the public good.
This case arises in the wake of September 11, 2001, a
day on which American life changed drastically and
dramatically. The era that dawned on September 11th, and
the war against terrorism that has pervaded the sinews of
our national life since that day, are reflected in thousands
of ways in legislative and national policy, the habits of daily
living, and our collective psyches. Since the primary
national policy must be self-preservation, it seems
elementary that, to the extent open deportation hearings
might impair national security, that security is implicated
in the logic test. When it is factored in, given due
consideration to the attorney general’s statements of the
threat, we do not believe that the Richmond Newspapers
logic prong test favors the media either.
As we will now explain in detail, we find that the
application of the Richmond Newspapers experience and
logic tests does not compel us to declare the Creppy
7
Directive unconstitutional. We will therefore reverse the
Order of the District Court.
I. BACKGROUND
A. The Creppy Directive
Shortly after the attacks of September 11, 2001, the
President ordered a worldwide investigation into those
atrocities and related terrorist threats to the United States.
Over the course of this ongoing investigation, the
government has become aware of numerous aliens who are
subject to removal from the United States for violating
immigration laws. The Immigration and Naturalization
Service has detained and initiated removal proceedings
against many of these individuals.
The Department of Justice, which oversees the INS, has
identified some aliens whose situations are particularly
sensitive and designated their hearings "special interest"
cases. According to Dale L. Watson, the FBI’s Executive
Assistant Director for Counterterrorism and
Counterintelligence, the designated aliens "might have
connections with, or possess information pertaining to,
terrorist activities against the United States." (Watson Dec.)
For example, special interest cases include aliens who had
close associations with the September 11 hijackers or who
themselves have associated with al Qaeda or related
terrorist groups.
The Department of Justice has reviewed these
designations periodically and removed them in many cases
that it determined were less sensitive than previously
believed. For those cases that retain the "special interest"
designation, however, Chief Immigration Judge Creppy
issued a memorandum (the "Creppy Directive")
implementing heightened security measures.1 The Directive
_________________________________________________________________
1. The Immigration and Nationality Act charges the Attorney General
with the "administration and enforcement" of"all [ ] laws relating to the
immigration and naturalization of aliens." 8 U.S.C. S 1103(a) (1994). The
Act authorizes the Attorney General to remove aliens from the United
States for various reasons, including violation of the immigration laws.
8
requires immigration judges "to close the hearing[s] to the
public, and to avoid discussing the case[s] or otherwise
disclosing any information about the case[s] to anyone
outside the Immigration Court." It further instructs that
"[t]he courtroom must be closed for these cases -- no
visitors, no family, and no press," and explains that the
restriction even "includes confirming or denying whether
such a case is on the docket or scheduled for a hearing." In
short, the Directive contemplates a complete information
blackout along both substantive and procedural
dimensions.
In closing special interest deportation hearings, the
Government’s stated purpose is to avoid disclosing
potentially sensitive information to those who may pose an
ongoing security threat to the United States and its
interests. The Government represents that "if evidence is
offered about a particular phone number link between a
detainee and a number connected to a terrorist
organization or member," the terrorists "will be on notice
that the United States is now aware of the link" and "may
even be able to determine what sources and methods the
United States used to become aware of that link." (Watson
Declaration.) Equally important, however, is "information
that might appear innocuous in isolation [but that] can be
fit into a bigger picture by terrorist groups in order to
thwart the Government’s efforts to investigate and prevent
terrorism." (Id.) For example, information about how and
_________________________________________________________________
Id. at S 1231. It also permits him to prescribe "such regulations . . . as
he deems necessary for carrying out his authority," id. at S 1103(a)(3),
and provides for removal proceedings to be conducted by immigration
judges within the Executive Branch "under regulations prescribed by the
Attorney General." Id.
Pursuant to this authority, the Attorney General in 1964 promulgated
a regulation governing public access to removal and other administrative
hearings that has remained substantially unchanged. It mandates the
closure of certain hearings, such as those involving abused alien
children, and permits the closure of all other hearings to protect
"witnesses, parties, or the public interest." 8 C.F.R. 3.27 (2002) (modern
codification). The Creppy Directive was issued pursuant to this
regulation.
9
why special interest aliens were detained "would allow the
terrorist organizations to discern patterns and methods of
investigation"; information about how such aliens entered
the country "would allow the terrorist organization to see
patterns of entry, what works and what doesn’t"; and
information "about what evidence the United States has
against members of a particular cell collectively" would
reveal to the terrorist organization which of its cells have
been significantly compromised. (Id.)
The Government offers a litany of harms that might flow
from open hearings. Most obviously, terrorist organizations
could alter future attack plans, or devise new, easier ways
to enter the country through channels they learn are
relatively unguarded by the Department of Justice. They
might also obstruct or disrupt pending proceedings by
destroying evidence, threatening potential witnesses, or
targeting the hearings themselves. Finally, if the
government cannot guarantee a closed hearing, aliens
might be deterred from cooperating with the ongoing
investigation. See infra.
B. Present Litigation
From November 2001 to February 2002, reporters for the
New Jersey Law Journal and Herald News ("the
Newspapers") were repeatedly denied docket information for
and access to deportation proceedings in Newark’s
Immigration Court. On March 6, 2002, the Newspapers
filed a federal court challenge to the Creppy Directive,
asserting that its mandated policy of closing every"special
interest" case precluded the case-by-case treatment the
First Amendment requires. They argued not only that
individualized inquiries are proper and practical, but also
that because the Directive permits special interest
detainees themselves to disseminate information concerning
their proceedings, its veil of secrecy is ineffective at best.2
_________________________________________________________________
2. Although the Creppy Directive did not itself prohibit aliens and their
counsel from themselves disclosing information about special interest
hearings, a recently promulgated regulation authorizes immigration
judges to issue protective orders and seal records as necessary to protect
sensitive "law enforcement or national security information." See 67 Fed.
Reg. 36799, 36799 (May 28, 2002). As this regulation took effect on the
day the District Court rendered its decision, it played no role in that
opinion.
10
The District Court applied the two-part First Amendment
analysis set forth in Richmond Newspapers, Inc. v. Virginia,
448 U.S. at 555, and found that since the promulgation of
the modern immigration regulations, see 8 C.F.R.
S 242.16(a) (1964), there has been a "presumption of
openness for deportation proceedings," or at a minimum,
there has been "no tradition of their presumptive closure."
North Jersey Media Group, Inc. v. Ashcroft, 205 F. Supp. 2d
288, 300 (May 28, 2002). It held that this history of
presumed openness, coupled with the "abundant
similarities" between deportation proceedings and judicial
proceedings in the criminal and civil contexts, supported
the existence of a First Amendment right of access. Id. at
301. It further held that because the Creppy Directive’s
closures were categorical rather than narrowly-tailored, it
failed strict scrutiny. The District Court accordingly granted
the Newspapers’ motion and temporarily enjoined the
Directive’s operation, although it left open the possibility of
seeking closure in individual cases.
In a subsequent order, the District Court denied the
Government’s motion for a stay pending appeal, and it
clarified that its injunction has nationwide scope, applies to
all proceedings regardless of whether plaintiffs seek to
attend, and requires proceedings to be open to all members
of the press and public. (Proceeding of June 5, 2002.) On
June 17, 2002, this Court granted expedited review of the
Government’s appeal but denied a stay. A week later,
however, the Supreme Court granted a stay of the District
Court’s injunction pending the final disposition of this
appeal. We note jurisdiction pursuant to 28 U.S.C.S 1331
and 28 U.S.C. S 1292(a)(1), and exercise plenary review over
the District Court’s legal conclusion that the First
Amendment guarantees a right of access to deportation
proceedings. See Rose Art Indus., Inc. v. Swanson, 235 F.3d
165 (3d Cir. 2000).
II. APPLICABILITY OF RICHMOND NEWSPAPERS
In finding a First Amendment right of access to
deportation hearings, the District Court employed the two-
part test set forth in Richmond Newspapers and its
progeny. The Government contends that the Richmond
11
Newspapers test, developed as it was for criminal trials,
has no proper application outside the judicial realm. It
argues in the alternative that even if Richmond Newspapers
provides the appropriate analytical framework, deportation
proceedings cannot run its "experience and logic" gauntlet.
While we agree with the District Court’s conclusion that
Richmond Newspapers analysis is proper in the
administrative context, we disagree with its application and
hold that under that test, there is no First Amendment
right to attend deportation proceedings.
A. Applicability to Article III Proceedings
In Richmond Newspapers, 448 U.S. at 555, the Supreme
Court held that the press and public possess a First
Amendment right to attend criminal trials. In that seminal
case, the police arrested a man and tried him for murder.
During his fourth trial (the first had been reversed on
appeal, and the second and third were declared mistrials),
the defendant’s counsel moved that it be closed to the
public so as to avoid yet another instance of jury
contamination. The prosecutor had no objection, so the
judge ordered "that the Courtroom be kept clear of all
parties except the witnesses when they testify." Id. at 560.
Two newspaper reporters sought to vacate the closure order
on First Amendment grounds, arguing that the court had
made no evidentiary findings prior to issuing its order and
also had failed to consider other, less drastic measures
within its power to ensure a fair trial.
The Supreme Court held that as "[t]he Bill of Rights was
enacted against the backdrop of the long history of trials
being presumptively open," id. at 575, the right of the press
and public to attend criminal trials "is implicit in the
guarantees of the First Amendment." Id. at 580. It therefore
struck down the closure order. Critical to the Court’s
holding was evidence of an "unbroken, uncontradicted
history" of public access to criminal trials in Anglo
American law running from "before the Norman Conquest"
to the present, and it emphasized that it had not found "a
single instance of a criminal trial conducted in camera in
any federal, state, or municipal court during the history of
this country." Id. at 565-73.
12
The Court also explained that this tradition of openness
was no "quirk of history"; rather, it had long been
recognized as an indispensable attribute of the trial
process. Id. at 569. The open trial "gave assurance that the
proceedings were conducted fairly to all concerned, and it
discouraged perjury, the misconduct of participants, and
decisions based on secret bias or partiality." Id. Equally
important was its prophylactic effect, which discouraged
vigilantism by "providing an outlet for community concern,
hostility, and emotion." Id. at 571.
The Richmond Newspapers First Amendment right of
access to criminal trials, therefore, stemmed from an
"uncontradicted history, supported by reasons as valid
today as in centuries past." Id. at 573. In his pragmatic
concurrence, Justice Brennan concluded that:
[T]wo helpful principles may be sketched. First, the
case for a right of access has special force when drawn
from an enduring and vital tradition of public entree to
particular proceedings or information. Such a tradition
commands respect in part because the Constitution
carries the gloss of history. More importantly, a
tradition of accessibility implies the favorable judgment
of experience. Second, the value of access must be
measured in specifics. Analysis is not advanced by
rhetorical statements that all information bears upon
public issues; what is crucial in individual cases is
whether access to a particular government process is
important in terms of that very process.
Id. at 589.
Despite Justice O’Connor’s admonition that Richmond
Newspapers does not have "any implications outside the
context of criminal trials," Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 611 (1982), a majority of the Court
has since adopted Justice Brennan’s language as a test of
at least somewhat broader application. In Press-Enterprise
Co. v. Superior Court, 478 U.S. at 1 (Press-Enterprise II), the
Court held that there is a First Amendment right of access
to preliminary hearings. Id. at 13. In so doing, it formalized
what has come to be known as the Richmond Newspapers
"experience and logic" test:
13
First, because a tradition of accessibility implies the
favorable judgment of experience, we have considered
whether the place and process have historically been
open to the press and general public. . . . Second, in
this setting the Court has traditionally considered
whether public access plays a significant positive role
in the functioning of the particular process in question.
Id. at 8 (citations omitted). The Court recognized that
"[t]hese considerations of experience and logic are, of
course, related, for history and experience shape the
functioning of governmental processes." Id. at 9.
Nevertheless, it made clear that relation is not tantamount
to equivalence, and it independently applied both prongs of
the test to preliminary proceedings.
The Court first noted that, like criminal trials, pretrial
proceedings had long been "conducted before neutral and
detached magistrates [and had] been open to the public."
Id. at 10. Indeed, during Aaron Burr’s trial for treason in
1807, Chief Justice Marshall conducted a probable-cause
hearing in the Hall of the House of Delegates in Virginia,
the courtroom being too small to accommodate the throng
of interested citizens. Id. Although several states had
allowed preliminary hearings to be closed on the motion of
the accused, even in these states they had been
presumptively open and were closed only for cause shown.
See id. at n.3. The Court therefore concluded that open
preliminary hearings had been accorded the favorable
judgment of experience. Id. at 11 (citation omitted). It then
asked whether public access played a "particularly
significant positive role" in pretrial proceedings, and found
in the affirmative. "Because of its extensive scope, the
preliminary hearing is often the final and most important
step in the criminal proceeding." Id. at 12. In fact, in many
cases the preliminary hearing provides "the sole occasion
for public observation of the criminal justice system," and
the absence of a jury "makes the importance of public
access . . . even more significant." Id. at 12-13. Because
preliminary hearings passed both parts of the Richmond
Newspapers test, the Court found that the public has a
First Amendment right of access in that context. It had
reached the same conclusion regarding voir dire
14
examinations in Press-Enterprise Co. v. Superior Court, 464
U.S. 501 (1984) (Press-Enterprise I).
Given that a majority of the Supreme Court has applied
the Richmond Newspapers framework to pretrial
proceedings and voir dire examinations, that approach
clearly is not confined to the criminal trial itself, although
each of the Supreme Court’s applications has arisen in the
criminal context. This Court has been less reticent in its
extensions. First, in Publicker Industries, Inc. v. Cohen, 733
F.2d 1059 (3d Cir. 1984), we applied Richmond Newspapers
and held that the First Amendment implicitly incorporates
a right of access to civil trials. Our conclusion rested on the
finding that "the public’s right of access to civil trials and
records is as well established as that of criminal
proceedings and records," id. at 1066, and we noted that
"[a]s early as 1685, Sir John Hawles commented that open
proceedings were necessary so that truth may be
discovered in civil as well as criminal matters." Id. at 1067
(citation omitted). We then found that, under the logic
prong, openness has similar salutary effects in civil and
criminal trials, and concluded that the same First
Amendment right of access extends to each.3 Id. at 1070.
B. Applicability of Richmond Newspapers to
Administrative Proceedings
The Government contends that while Richmond
Newspapers properly applies to civil and criminal
proceedings under Article III, the Constitution’s text
militates against extending First Amendment rights to non-
Article III proceedings such as deportation. Its premise is
one of expressio unius est exclusio alterius: Article III is
silent on the question of public access to judicial trials, but
_________________________________________________________________
3. Although the Supreme Court has not addressed the right to attend
civil trials, each Court of Appeals to examine this question has
concluded that Richmond Newspapers applies and that a First
Amendment right exists. See, e.g., Westmoreland v. CBS, 752 F.2d 16,
23 (2d Cir. 1984); Rushford v. New Yorker Magazine, 846 F.2d 249 (4th
Cir. 1988); Brown & Williamson Tobacco Co. v. Federal Trade
Commission, 710 F.2d 1165 (6th Cir. 1983); In re Continental Illinois
Securities Litigation, 732 F.2d 1302 (7th Cir. 1984); Newman v. Graddick,
696 F.2d 796 (11th Cir. 1983).
15
the Sixth Amendment expressly incorporates the common
law tradition of public trials, thus supporting the notion
that the First Amendment likewise incorporates that
tradition for Article III purposes. (Gov’t Brief at 21-22.)
Articles I and II, conversely, do address the question of
access, and they do not provide for Executive or Legislative
proceedings to be open to the public.4 To the Government,
the absence of an explicit guarantee of access for Article I
and II proceedings (as exists in Article III) gives rise to a
distinction with a difference because, without an
incorporating provision parallel to the Sixth Amendment,
the Framers must have intended to deny the public access
to political proceedings.
The Government’s suggestion is ultimately that we
should not apply Richmond Newspapers where the
Constitution’s structure dictates that no First Amendment
right applies, and should instead let the political branches
(here, the Executive, acting through the Justice
Department) determine the proper degree of access to
administrative proceedings. See Capital Cities Media, Inc. v.
Chester, 797 F.2d 1164, 1168 (3d Cir. 1986) (in banc)
(concluding that aside from limited requirements, the
Constitution leaves to the democratic process the regulation
of public access to the political branches).
Our own jurisprudence precludes this approach. In
Publicker, for example, we found a First Amendment right
to attend civil trials, proceedings to which the Sixth
Amendment is entirely inapplicable. If an express provision
were necessary to incorporate into the Bill of Rights the
common law tradition of access to trials, Publicker would
have come out the other way, a result the Government does
not urge. Moreover, the Richmond Newspapers Court itself
apparently did not view the Sixth Amendment as a critical
_________________________________________________________________
4. The only constitutionalized access requirement vis-a-vis the Executive
is that the President "from time to time give to the Congress Information
of the State of the Union." (U.S. Const. Art. II,S 3.) The Constitution also
requires Congress to publish a "regular Statement and Account of the
Receipts and Expenditures of all public Money," (U.S. Const. art. I, S 9,
cl. 7), and instructs each House of Congress to publish a journal of
proceedings from which it may withhold "such Parts as it may in [its]
Judgment require Secrecy." (U.S. Const. art. I,S 5, cl. 3).
16
incorporating provision. That case’s incorporation language
states only that "[t]he Bill of Rights was enacted against the
backdrop of the long history of trials being presumptively
open." Richmond Newspapers, 448 U.S. at 575. There is no
suggestion that the Sixth Amendment is crucial to the right
of access; indeed, this passage merely states that the
Framers assumed a common and established practice.
At all events, after Publicker, the Sixth Amendment
cannot be the sole source of a First Amendment right of
access, and our precedents likewise foreclose the
Government’s attempt to confine the Richmond Newspapers
approach to the Article III context. In Capital Cities Media,
797 F.2d at 1164, we held that there was no First
Amendment right of public access to the records of a state
environmental agency, an administrative body. Although
the Government makes much of our "no-access"
conclusion, more important is our methodology, for we
found no First Amendment right only after applying the
Richmond Newspapers test. Reviewing the Supreme Court’s
relevant holdings, we summarized that "[t]he government
may not close government proceedings which historically
have been open unless public access contributes nothing of
significant value to that process or there is a compelling
state interest in closure and a carefully tailored resolution
of the conflict between that interest and First Amendment
concerns." Id. at 1173.
Similarly, in First Amendment Coalition v. Judicial Inquiry
& Review Board, 784 F.2d 467 (3d Cir. 1986), we examined
a Pennsylvania law permitting access to records of the
Judicial Inquiry and Review Board only if that Board
recommended disciplinary measures against a judge in a
particular case. Plaintiff, a free speech advocacy group,
sought access to records of cases in which the Board did
not recommend a punishment. We again applied Richmond
Newspapers, though we found that "[t]hese administrative
proceedings, unlike conventional criminal and civil trials,
do not have a long history of openness," id. at 472, and
therefore upheld the state law against plaintiff ’s First
Amendment right-of-access claim.5 Most recently, in
_________________________________________________________________
5. The Government submits that First Amendment Coalition actually
stands for the opposite proposition: that we should not apply Richmond
17
Whiteland Woods, 193 F.3d at 177, we applied the
Richmond Newspapers analysis to determine whether a
citizen had a First Amendment right to videotape a
Township Planning Commission meeting. As in Capital
Cities Media and First Amendment Coalition , we denied the
right but only after going through the two-step analysis.
These precedents demonstrate that in this Court, Richmond
Newspapers is a test broadly applicable to issues of access
to government proceedings, including removal. In this one
respect we note our agreement with the Sixth Circuit’s
conclusion in their nearly identical case. See Detroit Free
Press v. Ashcroft, 2002 U.S. App. LEXIS 17646 (6th Cir.
2002). We now employ that test to determine whether the
press and public have a First Amendment right to attend
deportation hearings.
III. UNDER RICHMOND NEWSPAPERS, IS THERE A
FIRST AMENDMENT RIGHT TO ATTEND DEPORTATION
HEARINGS?
Richmond Newspapers requires that when a court
assesses a claimed First Amendment right of access, it
must "consider[ ] whether the place and process have
historically been open to the press and general public . . .
[and] whether public access plays a significant positive role
in the functioning of the particular process in question."
_________________________________________________________________
Newspapers to any administrative proceeding. It asserts that when we
said "[t]hese administrative proceedings . . . do not have a long history
of openness," our emphasis was on "proceedings." Such an emphasis
would distinguish administrative proceedings from civil and criminal
trials, and would imply that no administrative proceeding could make
the historical showing necessary under Richmond Newspapers. But this
interpretation is both incorrect and misplaced. It is incorrect because the
prior sentence referred to the "fundamentally different procedures of
judicial disciplinary boards," id., so that when we said that "[t]hese
administrative proceedings" lacked history, we clearly referred only to
proceedings before judicial disciplinary boards and not to administrative
proceedings generally. It is misplaced because even if the Government
were correct that administrative proceedings generally lack history, that
argument properly addresses the "experience" prong of the Richmond
Newspapers test itself. Our immediate concern is the antecedent issue of
whether to apply that test.
18
Press-Enterprise II, 478 U.S. at 8. This language seems to
place the burden of proof on the party alleging a First
Amendment right. While we acknowledge a current
presumption of openness in most deportation proceedings,
we find that this presumption has neither the pedigree nor
uniformity necessary to satisfy Richmond Newspapers’s first
prong. We also conclude that under a logic inquiry properly
acknowledging both community benefits and potential
harms, public access does not serve a "significant positive
role" in deportation hearings.
A. The "Experience" Test
1. Is there an historical right of access to
government proceedings generally?
In Richmond Newspapers, 448 U.S. at 575, the Supreme
Court acknowledged the State’s argument that the
Constitution nowhere explicitly guarantees the public’s
right to attend criminal trials, but it found that right
implicit because the Framers drafted the Constitution
against a backdrop of longstanding popular access to
criminal trials. Likewise, in Publicker, 733 F.2d at 1059, we
found a First Amendment right of access to civil trials
because at common law, such access had been "beyond
dispute."
The history of access to political branch proceedings is
quite different. The Government correctly notes that the
Framers themselves rejected any unqualified right of access
to the political branches for, as we explained in Capital
Cities Media, 797 F.2d at 1168-1171, the evidence on this
point is extensive and compelling. We need not rescribe it
here, but a few snippets are instructive. At the Virginia
ratification convention, Patrick Henry was a leading
opponent of government secrecy. He said of the publication
clause: "[Congress] may carry on the most wicked and
pernicious of schemes under the dark veil of secrecy. The
liberties of a people never were, nor ever will be, secure,
when the transactions of their rulers may be concealed
from them." 3 Elliot’s Debates at 169-70 (J. Elliot ed. 1881).
Nevertheless, even Henry conceded that not all government
activities should be publicized, particularly those related to
"military operations or affairs of great consequence." Id. at
19
170. Thomas Jefferson agreed, noting that "[a]ll nations
have found it necessary, that for the advantageous conduct
of their affairs, some [executive] proceedings, at least,
should remain known to their executive functionary only."
Randall, 3 Life of Thomas Jefferson 211 (1858), reprinted in
Wiggins, Freedom or Secrecy 67-68 (1964).
Congressional practice confirms that there is no general
right of public access to governmental proceedings or
information. The members of the First Congress did not
open their own proceedings to the public -- the Senate met
behind closed doors until 1794, and the House did likewise
until after the War of 1812.6See Watkins, Open Meetings
under the Arkansas Freedom of Information Act, 38 Ark. L.
Rev. 268, 271 & n.96. While both Houses thereafter opened
floor deliberations, committee sessions remained closed and
were not routinely opened to the public until the mid-
1970s. Id. at 272. Even today, the Senate operates under a
resolution limiting public access to "routine Senate records"
for 20 years after their creation and to "sensitive records,
such as investigative files" for 50 years after their creation,
and each Senate committee retains the right to extend that
access period for its own records. S. Rep. 474, 96th Cong.
2nd Sess., 126 Cong. Rec. S15209-10 (daily ed., Dec. 1,
1980). See generally Capital Cities Media, 797 F.2d at
1170-71.
This tradition of closing sensitive proceedings extends to
many hearings before administrative agencies. For example,
although hearings on Social Security disability claims
profoundly affect hundreds of thousands of people
annually, and have great impact on expenditure of
government funds, they are open only to "the parties and to
other persons the administrative law judge considers
necessary and proper." 20 C.F.R. 404.944. Likewise,
administrative disbarment hearings are often presumptively
closed. See, e.g., 12 C.F.R. 19.199 (Office of Comptroller of
Currency); 12 C.F.R. 263.97 (Federal Reserve Board of
Governors). The Government lists more than a dozen other
_________________________________________________________________
6. Indeed, it is interesting to note that our democracy was created behind
closed doors, as the delegates at the Constitutional Convention in
Philadelphia in 1787 excluded the public from their proceedings.
20
examples of mandatorily or presumptively closed
administrative proceedings. For instance, hearings on
charges of wrongdoing may often be closed at the
administrator’s discretion for "good cause," to protect the
"public interest," or under similar standards. See, e.g., 5
C.F.R. 185.132(d) (Office of Personnel Management); 10
C.F.R. 13.30(d) (Nuclear Regulatory Commission); 13 C.F.R.
142.21(d) (Small Business Administration); 28 C.F.R.
68.39(a) (Department of Justice); 31 C.F.R. 500.713(a)
(Office of Foreign Asset Control); 38 C.F.R. 42.30(d) (Office
of Veterans Affairs). Hearings on adverse passport decisions
by the Department of State "shall be private." 22 C.F.R.
51.87. See also 5 C.F.R. 2638.505(e)(2) (hearings on ethics
charges against government employees may be closed"in
the best interests of national security, the respondent
employee, a witness, the public or other affected persons");
10 C.F.R. 1003.62(a) (hearings before Department of Energy
Office of Hearings and Appeals may be closed at discretion
of administrator).
Faced with this litany of administrative hearings that are
closed to the public, the Newspapers cannot claim a general
First Amendment right of access to government proceedings
without urging a judicially-imposed revolution in the
administrative state. They wisely avoid that tactic, at least
directly.7 Instead they submit that, despite frequent
closures throughout the administrative realm, deportation
proceedings in particular boast a history of openness
sufficient to meet the Richmond Newspapers requirement.
We now assess that claim, and find that we disagree.
_________________________________________________________________
7. Although the Newspapers do not argue directly for a general right of
access to government proceedings, they maintain that FMC v. South
Carolina Ports Authority, 122 S. Ct. 1864 (2002), compels us to recognize
the procedural similarities between civil trials and deportation hearings
and extend the same access rights to each. We find that this contention
turns, at least in part, on whether there is a fundamental right of access
to government proceedings comparable to nonconsenting states’
fundamental right to freedom from private suit. It is because we find no
such comparable right that FMC does not bind us here. See discussion
infra.
21
2. Is the history of open deportation proceedings
sufficient to satisfy the Richmond Newspapers
"experience" prong?
For a First Amendment right of access to vest under
Richmond Newspapers, we must consider whether"the
place and process have historically been open to the press
and general public," because such a "tradition of
accessibility implies the favorable judgment of experience."
Press-Enterprise II, 478 U.S. at 8. Noting preliminarily that
the question whether a proceeding has been "historically
open" is only arguably an objective inquiry, we nonetheless
find that based on both Supreme Court and Third Circuit
precedents, the tradition of open deportation hearings is too
recent and inconsistent to support a First Amendment right
of access.
The strongest historical evidence of open deportation
proceedings is that since the 1890s, when Congress first
codified deportation procedures, "[t]he governing statutes
have always expressly closed exclusion hearings, but have
never closed deportation hearings."8 (Newspapers’ Br. at 30-
31.) In 1893, the Executive promulgated the first set of
immigration regulations, which expressly stated that
exclusion proceedings shall be conducted "separate from
the public." See Treasury Dept., Immigration Laws and
Regulations 4 (Washington D.C., Gov’t Printing Office 1893).
Congress codified those regulations in 1903 and, since that
_________________________________________________________________
8. Although both exclusion and deportation hearings are now formally
styled "removal" hearings, see Chi Thon Ngo v. INS, 192 F.3d 390, 394
& n.4 (3d Cir. 1999), significant differences exist between the two.
Exclusion proceedings occur when an applicant seeks entry into the
United States, whereas in deportation proceedings, the United States
seeks to expel a person who has already gained such entry. The
Supreme Court has consistently held that persons facing deportation
possess far greater legal rights than those contesting exclusion. See
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)
("[While] it is true that aliens who have once passed through our gates,
even illegally, may be expelled only after proceedings conforming to
traditional standards of fairness encompassed in due process of law, . . .
[a]n alien on the threshold of initial entry stands on a different footing.").
For clarity, we refer throughout this opinion to deportation and
exclusion, rather than removal.
22
time, it has repeatedly reenacted provisions closing
exclusion hearings.9 In contrast, although Congress codified
the regulations governing deportation proceedings in 1904
and has reenacted them many times since, it has never
authorized the general closure that has long existed in the
exclusion context.10
The Newspapers submit that under the rule of
construction expressio unius est exclusio alterius,
_________________________________________________________________
9. See, e.g., Act of March 3, 1903 S 25 (Ch. 1012, 32 Stat. 1213); Act of
February 20, 1907 S 25 (Ch. 1134, 34 Stat. 898); 1952 Immigration and
Nationality Act, 66 Stat. 163, SS 236, 242 (same); Treasury Department,
Immigration Laws and Regulations 3 (1893); Treasury Department,
Immigration Laws and Regulations 3 (1895); Treasury Department,
Immigration Laws and Regulations 3 (1898); Treasury Department,
Immigration Laws and Regulations 3 (1900); Treasury Department,
Immigration Laws and Regulations 3 (1902); Treasury Department,
Immigration Laws and Regulations 3 (1903); Bureau of Immigration,
Department of Commerce and Labor, Immigration Laws and Regulations
3, 9 (1904); Bureau of Immigration, Department of Commerce and Labor,
Immigration Laws and Regulations 3 (1906); Bureau of Immigration and
Naturalization, Department of Commerce and Labor, Immigration Laws
and Regulations 34 (1907); Bureau of Immigration, Department of Labor,
Immigration Laws; Rules of May 1, 1917, 33 (1919); 8 C.F.R. pts. 12 &
19 (1938); 8 C.F.R. pt. 150 (1941 Supp.); 12 Fed. Reg. 5108 (July 30,
1947); 8 C.F.R. pt. 130 (1949); 32 Fed. Reg. 9628 (1967) codified at 8
C.F.R. pt. 236 (1968).
10. See, e.g., Act of March 3, 1903 S 25 (Ch. 1012, 32 Stat. 1213); Act
of February 20, 1907 S 25 (Ch. 1134, 34 Stat. 898); Act of May 10, 1920
(Ch. 174, 41 Stat. 593); Act of May 26, 1924 (Ch. 190, 43 Stat. 153);
1952 Immigration and Nationality Act, 66 Stat. 163,S 242; Bureau of
Immigration, Department of Commerce and Labor, Immigration Laws
and Regulations 3, 9 (1904); Bureau of Immigration and Naturalization,
Department of Commerce and Labor, Immigration Laws and Regulations
34 (1907); Bureau of Immigration, Department of Labor, Immigration
laws; Rules of May 1, 1917, 33 (1919); 8 C.F.R. pt. 19 (1938); 8 C.F.R.
pt. 150 (1941 Supp.); 9 Fed Reg. 11884 (Sept. 19, 1944) (amendment to
INS regulations governing deportation hearings, codified at 8 C.F.R. pt.
150 (1944 Supp.)); 10 Fed Reg. 8096 (Aug. 1, 1945) (codified at 8 C.F.R.
pt. 150 (1945 Supp)); 12 F3d Reg. 5114 (July 30, 1947) (codified at 8
C.F.R. pt. 150 (1947 Supp.)); 8 C.F.R. pt. 150 (1949); 17 Fed. Reg.
11512 (Dec. 19, 1952) (codified at 8 C.F.R. pt. 242 (1952)); 22 Fed. Reg.
9795 (Dec. 6, 1957) (codified at 8 C.F.R. pt. 242 (1958)); 22 Fed. Reg.
9519 (Nov. 28, 1957) (codified at 8 C.F.R. pt. 242 (1958)).
23
Congress’s practice of closing exclusion proceedings while
remaining silent on deportation proceedings creates a
presumption that it intended deportation proceedings to be
open. In support of this interpretation, they point out that
the current Justice Department regulations provide
explicitly that "[a]ll hearings, other than exclusion hearings,
shall be open to the public except that . . . [f]or the purpose
of protecting . . . the public interest, the Immigration Judge
may limit attendance or hold a closed hearing." 8 C.F.R.
3.27. From this they conclude that the regulations state
explicitly what the statutes had long said implicitly, namely
that deportation hearings are to be open unless an
individualized case is made for closure.
But there is also evidence that, in practice, deportation
hearings have frequently been closed to the general public.
From the early 1900s, the government has often conducted
deportation hearings in prisons, hospitals, or private
homes, places where there is no general right of public
access.11 Even in recent times, the government has
continued to hold thousands of deportation hearings each
year in federal and state prisons. See H.R. Rep. No. 104-
469, pt. I, at 124 (1996). Moreover, hearings involving
abused alien children are closed by regulation no matter
where they are held, and those involving abused alien
spouses are closed presumptively. See 8 C.F.R. 3.27(c).
We ultimately do not believe that deportation hearings
boast a tradition of openness sufficient to satisfy Richmond
Newspapers. In Richmond Newspapers itself, the Court
noted an "unbroken, uncontradicted history" of public
_________________________________________________________________
11. The Newspapers contend that there is no evidence that hearings
conducted in hospitals, prisons, and private homes were closed to the
public. The Sixth Circuit agreed, concluding that this evidence does not
"even hint that the public could not attend a hearing [in these places]
. . . . Certainly, one could imagine family and friends being present."
Detroit Free Press, 2002 U.S. App. LEXIS 17646 at *68. While we agree
it is possible that some select non-party individuals might have been
present in such places, we are unwilling to assume that the general
public enjoyed unfettered access, a clearly counter-intuitive suggestion,
particularly since Richmond Newspapers, in asking whether "the place
and process have historically been open," seems to place the burden of
proof on the party claiming openness.
24
access to criminal trials in Anglo American law running
from "before the Norman Conquest" to the present, and it
emphasized that it had not found "a single instance of a
criminal trial conducted in camera in any federal, state, or
municipal court during the history of this country." 448
U.S. at 565, 572, 573 & n.9. Likewise, in Publicker, 733
F.2d at 1059, we found that access to civil trials at
common law was "beyond dispute."
The tradition of open deportation hearings is simply not
comparable. While the expressio unius distinction between
exclusion and deportation proceedings is a tempting road to
travel, we are unwilling effectively to craft a constitutional
right from mere Congressional silence, especially when
faced with evidence that some deportation proceedings
were, and are, explicitly closed to the public or conducted
in places unlikely to allow general public access. Although
the 1964 Department of Justice regulations did create a
presumption of openness, a recent -- and rebuttable --
regulatory presumption is hardly the stuff of which
Constitutional rights are forged.
The Newspapers contend, quite correctly, that at least
within the geographic confines of the Third Circuit, a
showing of openness at common law is not required. See,
e.g., United States v. Criden, 675 F.2d 550, 555 (3d Cir.
1982) (finding a right of access to pretrial hearings even
though no right existed at common law); United States v.
Simone, 14 F.3d 833, 838 (3d Cir. 1994) (finding a right
although no history predated 1980); Whiteland Woods, 193
F.3d at 181, (finding a "tradition of accessibility" based on
a recent statutory guarantee). We agree that under these
decisions a 1000-year history is unnecessary, and that in
some cases, largely limited to the criminal context,
relatively little history is required. These cases do not,
however, allow us to dispense with the Richmond
Newspapers "experience" requirement where history is
ambiguous or lacking, and to recognize a First Amendment
right based solely on the "logic" inquiry.
In Criden, 675 F.2d at 552, the defendant requested that
the court conduct in camera his pretrial motion to suppress
evidence, and the court acquiesced. A reporter filed suit
alleging a First Amendment right to view those proceedings.
25
As Criden arose before Press-Enterprise II formalized the
Richmond Newspapers test, we were not bound to apply it,
and we stated that:
We do not think that historical analysis is relevant in
determining whether there is a first amendment right
of access to pretrial criminal proceedings. We recognize
that, at common law, the public apparently had no
right to attend pretrial criminal proceedings. On the
other hand, there was no counterpart at common law
to the modern suppression hearing . . . . [W]e proceed
to examine the current role of the first amendment and
the societal interests in open pretrial criminal
proceedings.
675 F.2d at 555. Although this language supports the
Newspapers’ contention that we have overlooked the
experience requirement in certain cases, it does not bind us
here. Criden arose in the criminal context, where First
Amendment rights of access had been found many times
previously. More importantly, in Criden we were not bound
to apply the Richmond Newspapers test because in
Richmond Newspapers itself, no approach commanded a
majority, and the Court had not yet decided Press-
Enterprise II. We are now obligated to apply that test, and
we have recognized that "the role of history in the access
determination" is "crucial." Capital Cities Media, 797 F.2d
at 1174.
The Newspapers’ reliance on our decision in Simone, 14
F.3d at 833, is similarly misplaced. The District Court
believed that Simone allows us to find a First Amendment
right based solely on the logic prong where there is"neither
a clear history of openness nor one of closure," North Jersey
Media, 205 F. Supp. 2d at 300, but this greatly overstates
our holding. In assessing whether there is a right of access
to post-trial examinations of jury misconduct, we noted
that the only available evidence postdated 1980. We
recognized that evidence "of such recent vintage[does] not
establish a tradition of closure," Simone, 14 F.3d at 838,
and concluded that "the ‘experience’ prong of the ‘logic and
experience’ test provides little guidance." Id. We then found
a right while focusing mainly on the logic prong, but critical
to that giant step was our reflection that "[g]iven the
26
overwhelming historical support for access in other phases of
the criminal process, we are reluctant to presume that the
opposite rule applies in this case in the absence of a
distinct tradition to the contrary." Id. (emphasis added).
This logic effectively limits Simone’s scope to the criminal
context, or at least to those areas with "overwhelming
historical support for access." As discussed supra, the
tradition of public access in the administrative realm is
inconsistent at best, so we must rigorously apply both
prongs of the Richmond Newspapers test.
Finally, despite our potentially misleading language in
Whiteland Woods, 193 F.3d at 177, that case has no proper
application here. Whiteland Woods, a real estate developer,
was denied permission to videotape a Township Planning
Commission meeting, and it sued for access. Although we
recognized that "[t]he primary issue on appeal is whether
there is a federal constitutional right to videotape public
meetings of a township planning commission," id. at 180
(emphasis added), we stated in passing that "[w]e have no
hesitation in holding Whiteland Woods had a constitutional
right of access to the Planning Commission meeting." Id. at
180-81. As the Planning Commission never actually denied
Whiteland Woods the access guaranteed by state law,
however, our broad statement was dicta and we do not
follow it here.
Although we are confident that our precedents do not
allow us to find a First Amendment right of access to
deportation hearings absent strong historical evidence, the
Supreme Court’s recent ruling in FMC v. South Carolina
Ports Authority, 122 S. Ct. at 1864, gives us pause. In
holding that state sovereign immunity bars an
administrative agency from adjudicating a private party’s
complaint against a nonconsenting state, the Supreme
Court recognized that "formalized administrative
adjudications were all but unheard of " during the Framers’
time. Id. at 1872. It nevertheless found that because
Federal Maritime Commission adjudications "walk[ ], talk[ ],
and squawk[ ] like a civil lawsuit," id. at 1873 (quoting the
Court of Appeals decision), "they are the type of proceedings
from which the Framers would have thought the States
possessed immunity when they agreed to enter the Union."
27
Id. at 1872. The Court therefore concluded that state
sovereign immunity applies to administrative proceedings.
Ports Authority had not been decided when the District
Court heard this case, and the Newspapers now assert that
it forces us to distinguish the procedures in deportation
hearings from those in civil trials before finding that
different rights exist in each context. Were this suggestion
correct, we would indeed be hard pressed to find
meaningful differences between the two types of
proceedings. A deportation proceeding is commenced with a
"Notice to Appear," see 8 C.F.R. S 239.1, a document
strongly resembling a civil complaint. In turn, a respondent
may proffer affirmative defenses. See Martinez-Montoya v.
INS, 904 F.2d 1018 (5th Cir. 1990). As in a civil trial, a
respondent has the right to be represented by counsel of
his choosing, see 8 C.F.R. S 240.3, and has the right to be
present during his hearing. See 8 U.S.C.S 1229a(b)(4). He
or she is also guaranteed an opportunity to cross-examine
witnesses and present evidence on his or her behalf. Id.
While slight differences exist regarding such minor matters
as the admissibility of hearsay evidence, we agree that on
a procedural level, deportation hearings and civil trials are
practically indistinguishable.
Despite these undeniable similarities, however, we do not
believe that the Supreme Court intended in Ports Authority
to import the full panoply of constitutional rights to any
administrative proceeding that resembles a civil trial. The
Court’s reasoning was based fundamentally on its enduring
presumption "that the Constitution was not intended to
‘raise up’ any proceedings against the States that were
‘anomalous and unheard of when the Constitution was
adopted.’ " Ports Authority, 122 S. Ct. at 1872 (quoting Hans
v. Louisiana, 134 U.S. 1, 18 (1890)). Put slightly differently,
the Court started from the premise that state sovereign
immunity shields nonconsenting states from complaints
brought by private persons, regardless of where private
persons bring those complaints. It then concluded that
since Federal Maritime Commission proceedings strongly
resemble civil trials to which state sovereign immunity
applies, the Framers would have intended the same right to
freedom from private suit to apply in each context.
28
In contrast, there is no fundamental right to attend
government proceedings underpinning the Newspapers’
alleged right to attend deportation proceedings. See
discussion supra. This is not a situation where the Framers
contemplated a perfectly transparent government, only to
have deportation proceedings, which they did not foresee,
jeopardize that intended scheme. This is also not a
situation involving allegations that the government assigned
to an administrative agency a function that courts
historically performed in order to deprive the public of an
access right it once possessed. And most importantly, this
is not a situation that risks affront to states’"residual and
inviolable sovereignty," id. at 1870 (quoting The Federalist
No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison)), the
concern that motivated the Ports Authority Court. We
therefore decline to loose the Ports Authority analysis from
its Eleventh Amendment moorings. Instead of analogizing
procedures, the proper approach is that developed in
Richmond Newspapers, and as we have explained, under
that test we find an insufficient tradition of openness to
support the right.
3. Relaxing the Richmond Newspapers experience
requirement would lead to perverse consequences.
As we have explained in detail supra, there is no
fundamental right of access to administrative proceedings.
Any such access, therefore, must initially be granted as a
matter of executive grace.12 The Government contends that
by relaxing the need for a "1000-year tradition of public
access," (Gov’t Br. at 35), we would permanently
constitutionalize a right of access whenever an executive
agency does not consistently bar all public access to a
particular proceeding. We do not adopt this reasoning in its
_________________________________________________________________
12. The Newspapers disagree, arguing that "the constitutional right of
access under the First Amendment does not, and could not, turn on
whether the legislature has chosen to supply that right." We believe this
reasoning to be precisely backwards, for Richmond Newspapers requires
a tradition of access before recognizing a constitutional right to that
access. Given that order of events, there must perforce be a period of
time during which access to a particular proceeding is not
constitutionally compelled, although during that period the executive
could, of course, grant access as a matter of grace.
29
entirety, for as we have discussed supra, we have
sometimes found a constitutional right of access to
proceedings that did not exist at common law. See, e.g.,
Simone, 14 F.3d at 837-40 (finding a public access right to
post-trial jury examinations).
Nevertheless, we agree with the Government that a
rigorous experience test is necessary to preserve the "basic
tenet of administrative law that agencies should be free to
fashion their own rules of procedure." Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council,
Inc., 435 U.S. 519, 544 (1978). Were we to adopt the
Newspapers’ view that we can recognize a First Amendment
right based solely on the logic prong if there is no history
of closure, we would effectively compel the Executive to
close its proceedings to the public ab initio or risk creating
a constitutional right of access that would preclude it from
closing them in the future. Under such a system, reserved
powers of closure would be meaningless. It seems possible
that, ironically, such a system would result in less public
access than one in which a constitutional right of access is
more difficult to create.
At all events, we would find this outcome incredible in an
area of traditional procedural flexibility, and we are
unwilling to reach it when a reasonable alternative is
present. By insisting on a strong tradition of public access
in the Richmond Newspapers test, we preserve
administrative flexibility and avoid constitutionalizing
ambiguous, and potentially unconsidered, executive
decisions.
IV. DOES THE RICHMOND NEWSPAPERS"LOGIC"
PRONG, PROPERLY APPLIED, SUPPORT A RIGHT OF
ACCESS?
Even if we could find a right of access under the
Richmond Newspapers logic prong, absent a strong showing
of openness under the experience prong, a proposition we
do not embrace, we would find no such right here. The logic
test compels us to consider "whether public access plays a
significant positive role in the functioning of the particular
process in question." Press-Enterprise II, 478 U.S. at 8. The
30
District Court observed that "there are abundant
similarities between these proceedings and judicial
proceedings in the criminal and civil contexts," and
concluded that "the same functional goals served by
openness in the civil and criminal judicial contexts would
be equally served in the context of deportation hearings."
North Jersey Media, 205 F. Supp. 2d at 301. As we have
discussed supra, we agree that deportation proceedings
look very much like judicial trials. As we will now explain,
however, we find that the logic inquiry has drifted from its
intended role and that, properly conceived, it does not
support openness in this case.
In Press-Enterprise II, the case that formalized the
Richmond Newspapers test, the Court identified several
reasons that openness plays a significant positive role in
preliminary hearings. It recognized that "[b]ecause of its
extensive scope, the preliminary hearing is often the final
and most important step in the criminal proceeding," and
in many cases it "provides the sole occasion for public
observation of the criminal justice system." Id. at 12
(citation omitted). Similarly, it found that "the absence of a
jury, long recognized as an inestimable safeguard against
the corrupt or overzealous prosecutor and against the
compliant, biased, or eccentric judge, makes the
importance of public access to a preliminary hearing even
more significant." Id. at 12-13 (citations omitted).
Summarizing that "[d]enying the transcript of a [ ]
preliminary hearing would frustrate what we have
characterized as the ‘community therapeutic value’ of
openness," it concluded that a qualified First Amendment
right of access attaches to preliminary hearings. Id. at 13.
In subsequent cases, this Court has noted six values
typically served by openness: "[1] promotion of informed
discussion of governmental affairs by providing the public
with the more complete understanding of the judicial
system; [2] promotion of the public perception of fairness
which can be achieved only by permitting full public view of
the proceedings; [3] providing a significant community
therapeutic value as an outlet for community concern,
hostility and emotion; [4] serving as a check on corrupt
practices by exposing the judicial process to public
31
scrutiny; [5] enhancement of the performance of all
involved; and [6] discouragement of perjury." Simone, 14
F.3d at 839.
We agree with the District Court and the Sixth Circuit
that openness in deportation hearings performs each of
these salutary functions, but we are troubled by our sense
that the logic inquiry, as currently conducted, does not do
much work in the Richmond Newspapers test. We have not
found a case in which a proceeding passed the experience
test through its history of openness yet failed the logic test
by not serving community values. Under the reported
cases, whenever a court has found that openness serves
community values, it has concluded that openness plays a
"significant positive role" in that proceeding. But that
cannot be the story’s end, for to gauge accurately whether
a role is positive, the calculus must perforce take account
of the flip side -- the extent to which openness impairs the
public good. We note in this respect that, were the logic
prong only to determine whether openness serves some
good, it is difficult to conceive of a government proceeding
to which the public would not have a First Amendment
right of access. For example, public access to any
government affair, even internal CIA deliberations, would
"promote informed discussion" among the citizenry. It is
unlikely the Supreme Court intended this result.
In this case the Government presented substantial
evidence that open deportation hearings would threaten
national security. Although the District Court discussed
these concerns as part of its strict scrutiny analysis, they
are equally applicable to the question whether openness, on
balance, serves a positive role in removal hearings. 13 We
find that upon factoring them into the logic equation, it is
_________________________________________________________________
13. We recognize that, under our approach, there is an evidentiary
overlap between the Richmond Newspapers logic prong and the
subsequent "compelling government interest" strict scrutiny investigation
necessary upon a finding of a First Amendment access right.
Nonetheless, the inquiries are not redundant because it is possible for
openness to serve a positive role under a balanced logic prong even
though the government has a compelling interest in closure. This would
simply require that the policy rationales supporting openness be even
more compelling than those supporting closure.
32
doubtful that openness promotes the public good in this
context.
The Government’s security evidence is contained in the
declaration of Dale Watson, the FBI’s Executive Assistant
Director for Counterterrorism and Counterintelligence.
Watson presents a range of potential dangers, the most
pressing of which we rescribe here.
First, public hearings would necessarily reveal sources
and methods of investigation. That is information which,
"when assimilated with other information the United States
may or may not have in hand, allows a terrorist
organization to build a picture of the investigation."
(Watson Dec. at 4.) Even minor pieces of evidence that
might appear innocuous to us would provide valuable clues
to a person within the terrorist network, clues that may
allow them to thwart the government’s efforts to investigate
and prevent future acts of violence. Id.
Second, "information about how any given individual
entered the country (from where, when, and how) may not
divulge significant information that would reveal sources
and methods of investigation. However, putting entry
information into the public realm regarding all‘special
interest cases’ would allow the terrorist organization to see
patterns of entry, what works and what doesn’t." Id. That
information would allow it to tailor future entries to exploit
weaknesses in the United States immigration system.
Third, "[i]nformation about what evidence the United
States has against members of a particular cell collectively
will inform the terrorist organization as to what cells to use
and which not to use for further plots and attacks." Id. A
related concern is that open hearings would reveal what
evidence the government lacks. For example, the United
States may disclose in a public hearing certain evidence it
possesses about a member of a terrorist organization. If
that detainee is actually involved in planning an attack,
opening the hearing might allow the organization to know
that the United States is not yet aware of the attack based
on the evidence it presents at the open hearing. Id.
Fourth, if a terrorist organization discovers that a
particular member is detained, or that information about a
33
plot is known, it may accelerate the timing of a planned
attack, thus reducing the amount of time the government
has to detect and prevent it. If acceleration is impossible, it
may still be able to shift the planned activity to a yet-
undiscovered cell. Id. at 7.
Fifth, a public hearing involving evidence about terrorist
links could allow terrorist organizations to interfere with
the pending proceedings by creating false or misleading
evidence. Even more likely, a terrorist might destroy
existing evidence or make it more difficult to obtain, such
as by threatening or tampering with potential witnesses.
Should potential informants not feel secure in coming
forward, that would greatly impair the ongoing
investigation. Id.
Sixth, INS detainees have a substantial privacy interest
in having their possible connection to the ongoing
investigation kept undisclosed. Id. at 8."Although some
particular detainees may choose to identify themselves, it is
important to note that as to all INS detainees whose cases
have been placed in the special interest category concerns
remain about their connection to terrorism, and specifically
to the worst attack ever committed on United States soil.
Although they may eventually be found to have no
connection to terrorist activity, discussion of the causes of
their apprehension in open court would forever connect
them to the September 11 attacks." Id. While this stigma
concern exists to some extent in many criminal
prosecutions, it is noteworthy that deportation hearings are
regulatory, not punitive, see Carlson v. Landon , 342 U.S.
524, 537 (1952), and there is often no evidence of any
criminal wrongdoing.
Finally, Watson represents that "the government cannot
proceed to close hearings on a case-by-case basis, as the
identification of certain cases for closure, and the
introduction of evidence to support that closure, could itself
expose critical information about which activities and
patterns of behavior merit such closure." (Watson Dec. at 8-
9.) Moreover, he explains, given judges’ relative lack of
expertise regarding national security and their inability to
see the mosaic, we should not entrust to them the decision
34
whether an isolated fact is sensitive enough to warrant
closure.
The Newspapers are undoubtedly correct that the
representations of the Watson Declaration are to some
degree speculative, at least insofar as there is no concrete
evidence that closed deportation hearings have prevented,
or will prevent, terrorist attacks.14 But the Richmond
Newspapers logic prong is unavoidably speculative, for it is
impossible to weigh objectively, for example, the community
benefit of emotional catharsis against the security risk of
disclosing the United States’ methods of investigation and
the extent of its knowledge. We are quite hesitant to
conduct a judicial inquiry into the credibility of these
security concerns, as national security is an area where
courts have traditionally extended great deference to
Executive expertise. See, e.g., Zadvydas v. Davis, 533 U.S.
678, 696 (2001) (noting that "terrorism or other special
circumstances" might warrant "heightened deference to the
judgments of the political branches with respect to matters
of national security"). See also Dep’t of the Navy v. Egan,
484 U.S. 518, 530 (1988) (noting that "courts traditionally
have been reluctant to intrude upon the authority of the
Executive in military and national security affairs"). The
assessments before us have been made by senior
government officials responsible for investigating the events
of September 11th and for preventing future attacks. These
officials believe that closure of special interest hearings is
necessary to advance these goals, and their concerns, as
expressed in the Watson Declaration, have gone
unrebutted. To the extent that the Attorney General’s
_________________________________________________________________
14. The Newspapers contend that speculative evidence is insufficient to
withstand strict scrutiny. See Press-Enterprise II, 478 U.S. at 13
(requiring "specific, on the record findings"); Globe Newspaper, 457 U.S.
596, 609 (1982) (finding government interest insufficient to merit closure
without accompanying empirical support). While we acknowledge the
force of this contention, strict scrutiny is appropriate only after finding
a First Amendment right. Because we find no such right to attend
deportation hearings, the speculative nature is not fatal.
35
national security concerns seem credible, we will not lightly
second-guess them.15
We are keenly aware of the dangers presented by
deference to the executive branch when constitutional
liberties are at stake, especially in times of national crisis,
when those liberties are likely in greatest jeopardy. On
balance, however, we are unable to conclude that openness
plays a positive role in special interest deportation hearings
at a time when our nation is faced with threats of such
profound and unknown dimension.
V. CONCLUSION
Whatever the outer bounds of Richmond Newspapers
might be, they do not envelop us here. Deportation
_________________________________________________________________
15. It is worth clarifying that we do not here defer to the Executive on
the basis of its plenary power over immigration. We do not question that
the "power to expel or exclude aliens" is"a fundamental sovereign
attribute . . . largely immune from judicial control," Fiallo v. Bell, 430
U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex rel.
Mezei, 342 U.S. 206, 210 (1953)), for indeed there is no dispute as to the
government’s substantive power to expel the special interest detainees.
Rather, what is at stake is the means the government has chosen to
exercise that plenary power.
In INS v. Chadha, 462 U.S. 919, 940-41 (1983), the Court heard a
challenge to Congress’s decision to create a one-House veto over certain
deportation decisions made by the Attorney General. In striking down
the legislative veto, the Court noted that "what is challenged here is
whether Congress has chosen a constitutionally permissible means of
implementing that power." Id. Most recently, in Zadvydas, 533 U.S. at
695-97, the Court held that despite the government’s plenary power to
expel immigrants, the Attorney General lacked the authority indefinitely
to detain non-citizens whose countries were unwilling to accept their
return, and it cited Chadha for the proposition that "Congress must
choose a constitutionally permissible means of implementing" its
immigration power. Id. at 695 (quoting Chada, 462 U.S. at 941-42). The
issue at stake in the Newspapers’ suit is not the Attorney General’s
power to expel aliens, but rather his power to exclude reporters from
those proceedings. This is plainly a constitutional challenge to the means
he has chosen to effect a permissible end, and under Zadvydas we owe
no executive deference. We defer only to the executive insofar as it is
expert in matters of national security, not constitutional liberties.
36
proceedings’ history of openness is quite limited, and their
presumption of openness quite weak. They plainly do not
present the type of "unbroken, uncontradicted history" that
Richmond Newspapers and its progeny require to establish
a First Amendment right of access. We do not decide that
there is no right to attend administrative proceedings, or
even that there is no right to attend any immigration
proceeding. Our judgment is confined to the extremely
narrow class of deportation cases that are determined by
the Attorney General to present significant national security
concerns. In recognition of his experience (and our lack of
experience) in this field, we will defer to his judgment. We
note that although there may be no judicial remedy for
these closures, there is, as always, the powerful check of
political accountability on Executive discretion.
The importance of this case has not escaped us. As we
approached it, we were acutely aware that the
countervailing positions of the parties go to the heart of our
institutions, our national values, and the republic itself.
Commenting upon the great national dilemma in which this
case ineluctably embroils us -- the eternal struggle between
liberty and security -- a number of newspapers have
editorialized favorably upon Judge Keith’s eloquent
language in the Detroit Free Press case:
"Democracies die behind closed doors," . . ."When
government begins closing doors, it selectively controls
information rightfully belonging to the people. Selective
information is misinformation."
Others have been less impressed. Michael Kelly has
written in the Washington Post:
"Democracies die behind closed doors. So they do,
sometimes. But far more democracies have succumbed
to open assaults of one sort or another -- invasions
from without, military coups and totalitarian
revolutions from within -- than from the usurpation-
by-in-camera-incrementalism that Judge Keith fears.
Democracy in America does at this moment face a
serious threat. But it is not the threat the judge has in
mind, at least not directly. It is true that last
September’s unprecedented mass-slaughter of
37
American citizens on American soil inevitably forced
the government to take security measures that
infringed on some rights and privileges. But these do
not in themselves represent any real threat to
democracy. A real threat could arise, however, should
the government fail in its mission to prevent another
September 11. If that happens, the public will demand,
and will get, immense restrictions on liberties.
Although Mr. Kelly ultimately sided with openness on a
case by-case basis, we find his quoted statements powerful.
They certainly seem appropriate to the decision to close the
deportation hearings of those who may have been affiliated
with the persons responsible for the events of September
11th, all of the known perpetrators of which were aliens.
And they are consonant with the reality that the persons
most directly affected by the Creppy Directive are the
media, not the aliens who may be deported. As always,
these aliens are given a heavy measure of due process --
the right to appeal the decision of the Immigration Judge
(following the closed hearing) to the Board of Immigration
Appeals (BIA) and the right to petition for review of the BIA
decision to the Regional Court of Appeals. See also INS v.
St. Cyr, 533 U.S. 289, 300 (2001) (noting that because the
Constitution "provides the Writ of Habeas Corpus shall not
be suspended, . . . some judicial intervention in deportation
cases is unquestionably required by the Constitution").
Because we find that open deportation hearings do not
pass the two-part Richmond Newspapers test, we hold that
the press and public possess no First Amendment right of
access. In the absence of such a right, we need not reach
the subsequent questions whether the Creppy Directive’s
closures would pass a strict scrutiny analysis and whether
the District Court’s "national in scope" injunction was too
broad.
The judgment of the District Court will be reversed.
38
SCIRICA, Circuit Judge, dissenting:
At issue is not whether some or all deportation hearings
of special interest aliens should be closed, but who makes
that determination. The answer depends on how we
interpret the First Amendment of the Constitution.
The Constitution is silent on the right to public access.
But the Supreme Court has framed a qualified right of
access that may be overcome by sound reasons. Because
no reason is more compelling than national security,
closure of special interest alien deportation hearings may
well be warranted.
The Supreme Court’s test in Richmond Newspapers --
when a right of access attaches to a particular type of
proceeding and whether it may be overcome--applies here.
Therefore, I agree with the majority that this test applies to
deportation hearings.1 But I believe the requirements of
that test are met. Consequently, I would find a qualified
right of access to deportation hearings. Because I believe
that Immigration Judges can make these determinations
with substantial deference to national security, I would
affirm the District Court’s judgment.2
I. Experience
The Supreme Court has articulated a functional inquiry
to determine whether "the place and process have
historically been open to the press and general public."
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)
("Press-Enterprise II"). Deportation hearings have a
consistent history of openness. Congress first adopted
immigration statutes at the end of the nineteenth century.
In so doing, Congress expressly closed exclusion
proceedings while leaving deportation hearings
presumptively open. For at least one hundred years,
deportation hearings have remained presumptively open to
the public.
_________________________________________________________________
1. Accordingly, I agree with much of parts I and II of the court’s learned
opinion.
2. At the same time, I would reverse the District Court’s injunction as it
applies nationwide. See Section IV, infra.
39
Department of Justice regulations, enacted in 1964,
provide express approval for presumptively open hearings.
See 8 C.F.R. S 242.16(a) (1964) ("All hearings, other than
exclusion hearings, shall be open to the public except that
. . . [f]or the purpose of protecting . . . the public interest,
the Immigration Judge may limit attendance or hold a
closed hearing."). Although deportation hearings have been
only presumptively open, Richmond Newspapers itself only
recognizes a qualified right of access for criminal
proceedings, which may be restricted by a countervailing
public interest. Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 580-81 (1980); see also Press-Enterprise II, 478
U.S. at 10; Globe Newspaper v. Superior Court , 457 U.S.
596, 606-07 (1982).3
The Supreme Court has noted that we must assess
history "because a tradition of accessibility implies the
favorable judgment of experience." Press-Enterprise II, 478
U.S. at 8 (internal quotation omitted); see also Globe
Newspaper, 457 U.S. at 605; Richmond Newspapers, 448
U.S. at 589 (Brennan, J., concurring). But this historical
assessment does not cabin our review only to proceedings
with a pre-constitutional history of openness.4 Other factors
may reveal a favorable judgment of experience for
presumptive access to deportation hearings.
Notably, Press-Enterprise II relies upon nineteenth and
twentieth century history to find a tradition of openness for
criminal preliminary hearings. 478 U.S. at 10. In that case,
the Supreme Court observed that "[t]he vast majority of
States considering the issue have concluded that the same
_________________________________________________________________
3. While exceptions exist for deportation hearings involving abused alien
children and spouses, criminal trials have similar exceptions (e.g., there
is no public right of access to juvenile criminal proceedings).
4. Our Court of Appeals has not framed a bright-line test for determining
when a historical tradition is lengthy enough to satisfy Richmond
Newspapers’s experience prong. Our decisions suggest, however, that a
more than one hundred year history of openness is sufficient to justify
the conclusion that the experience prong has been satisfied. See, e.g.,
Whiteland Woods, L.P. v. Township of West Whiteland , 193 F.3d 177 (3d
Cir. 1999); United States v. Simone, 14 F.3d 833 (3d Cir. 1994); United
States v. Smith, 776 F.2d 1104 (3d Cir. 1985); Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059 (3d Cir. 1984).
40
tradition of accessibility that applies to criminal trials
applies to preliminary proceedings." Id. at 10 n.3. These
state court decisions confirmed the value of openness and
the Supreme Court thus determined that "[o]pen
preliminary hearings . . . have been accorded the favorable
judgment of experience." Id. at 11 (quoting Globe
Newspaper, 457 U.S. at 605).
Furthermore, the Supreme Court has recognized that the
Founders "could not have anticipated the vast growth of the
administrative state." Fed. Mar. Comm’n v. S.C. State Ports
Auth., 122 S. Ct. 1864, 1872 (2002). In South Carolina Ports
Authority, the Court observed that "formalized
administrative adjudications were all but unheard of in the
late 18th century and early 19th century." Id.5 For
administrative proceedings, therefore, it would appear that
the experience inquiry should consider the tradition of
access to a particular proceeding within the history of the
modern administrative state.6
The Supreme Court also noted in South Carolina Ports
Authority that some administrative adjudications share
"numerous common features" with civil judicial
proceedings, including an adversarial nature. Id. at 1872-
73 (citing Butz v. Economou, 438 U.S. 478, 513 (1978)
(listing similarities between administrative and judicial
proceedings)). Based upon these similarities, the Court in
both South Carolina Ports Authority and Butz concluded
that constitutional principles applicable to civil trials were
_________________________________________________________________
5. The Supreme Court has recognized that the"[m]ultiplication of federal
administrative agencies and expansion of their functions to include
adjudications which have serious impact on private rights [was] one of
the dramatic legal developments of the [first half of the twentieth
century]." Wong Yang Sung v. McGrath, 339 U.S. 33, 36-37 (1950).
6. Congress crafted the system of deportation hearings during the early
years of the modern administrative state. See 1 Richard J. Pierce, Jr.,
Administrative Law Treatise S 1.4, at 9 (4th ed. 2002) (describing the
historical developments of administrative law); Marian L. Smith, An
Overview of INS History, in A Historical Guide to the U.S. Government
305, 305 (George Thomas Kurian ed., 1998) (detailing how the United
States did not begin to question its policy of "free and open immigration"
until the late 1800s). Since then, deportation hearings have remained
presumptively open.
41
relevant to the administrative proceedings at issue. 7
Deportation hearings share these common features. I agree
with the majority, therefore, that "on a procedural level,
deportation hearings and civil trials are practically
indistinguishable." Majority Op. at 28.8
That the historical tradition supports access to
deportation hearings does not imply the existence of a
qualified right of access for all administrative proceedings.9
For example, Social Security benefits claim proceedings are
distinguishable. They "are inquisitorial rather than
adversarial," in that the Administrative Law Judge
undertakes multiple roles as the investigator, counselor,
and adjudicator. Sims v. Apfel, 530 U.S. 103, 110-11
(2000). The Supreme Court has identified the differences
between Social Security claims and other administrative
proceedings:
The differences between courts and agencies are
nowhere more pronounced than in Social Security
proceedings. Although many agency systems of
adjudication are based to a significant extent on the
judicial model of decisionmaking, the SSA is perhaps
the best example of an agency that is not.
Id. at 110 (internal quotations omitted). 10
_________________________________________________________________
7. I agree with the majority that the South Carolina Ports Authority
holding may not extend "the full panoply of constitutional rights to any
administrative proceeding that resembles a civil trial." Majority Op. at
28. The Supreme Court left this question for another day. But its
comparison of administrative proceedings to civil trials remains
instructive.
8. On this level, a deportation hearing "walks, talks, and squawks like a
civil lawsuit." South Carolina Ports Authority, 122 S. Ct. at 1873 (internal
quotation omitted).
9. As the Supreme Court has noted, there is a distinction between liberty
and property interests in administrative hearings. Wong Yang Sung, 339
U.S. at 50-51.
10. Deportation hearings are adversarial proceedings that share many of
the features common to civil judicial proceedings that the Supreme
Court enunciated in South Carolina Ports Authority:
Federal administrative law requires that agency adjudication contain
many of the same safeguards as are available in the judicial
42
Congress has provided for presumptively open
deportation proceedings from the moment that it first
enacted an immigration statutory framework. This century
of unbroken openness, especially within the nascent
tradition of the administrative state, "implies the favorable
judgment of experience" under the Richmond Newspapers
test.
II. Logic
Public access to deportation hearings serves the same
positive functions as does openness in criminal and civil
trials. But the logic inquiry cannot consist merely of a
recitation of the factors supporting open proceedings. "An
assertion of the prerogative to gather information must . . .
be assayed by considering the information sought and the
opposing interests invaded." Richmond Newspapers, 448
U.S. at 588 (Brennan, J., concurring); accord Majority Op.
at 32 ("[T]he calculus must perforce take account of the flip
side--the extent to which openness impairs the public
good."). I agree with the majority that the District Court
erred in failing to consider the countervailing interest of
national security.
_________________________________________________________________
process. The proceedings are adversary in nature. They are
conducted before a trier of fact insulated from political influence. A
party is entitled to present his case by oral or documentary
evidence, and the transcript of testimony and exhibits together with
the pleadings constitutes the exclusive record for decision. The
parties are entitled to know the findings and conclusions on all of
the issues of fact, law, or discretion presented on the record.
South Carolina Ports Authority, 122 S. Ct. at 1873 (quoting Butz, 478
U.S. at 513).
The Supreme Court has held that deportation hearings require a
heightened standard of proof, suggesting their unique position within the
context of administrative proceedings. Woodby v. INS, 385 U.S. 276, 286
(1966) (requiring clear, unequivocal, and convincing evidence to support
the grounds for deportation). Conversely, many of the other
administrative proceedings cited by the government do not share as
many of the South Carolina Ports Authority common factors, and they
may contain other features--the protection of privacy, reputation, and
medical information--that counsel against access.
43
The issue in this case is "whether the press and public
have a First Amendment right to attend deportation
hearings." Majority Op. at 18. The logic analysis set forth
by the Supreme Court is directed at a particular structural
type of proceeding--in this case, deportation hearings--not
a subset based on specific designations such as terrorism.
In Globe Newspaper, the Court stated this point most
clearly. Appellees in that case sought to limit the Richmond
Newspapers analysis to rape trials. The dissent in Globe
Newspaper cited evidence of "a long history of exclusion of
the public from trials involving sexual assaults, particularly
those against minors." 457 U.S. at 614. The Court rejected
this suggestion, stating, "Whether the First Amendment
right of access to criminal trials can be restricted in the
context of any particular criminal trial, such as . . . a rape
trial, depends not on the historical openness of that type of
criminal trial but rather on the state interests assertedly
supporting the restriction."11Id. at 605 n.13.
At this stage, we must consider the value of openness in
deportation hearings generally, not its benefits and
detriments in "special interest" deportation hearings in
particular. If a qualified right of access is found to attach to
deportation hearings generally, the analysis then turns to
whether particular issues raised in individual cases
override the general limited right of access.
Were the logic analysis focused only on special interest
cases, I would agree that national security would likely
trump the arguments in favor of access. Although
paramount in certain deportation cases--like terrorism--
national security is not generally implicated in the panoply
of deportation hearings that occur throughout the United
States. There are many grounds for deportation--marriage
fraud, moral turpitude convictions, and aggravated felonies,
_________________________________________________________________
11. Courts have consistently applied Richmond Newspapers in this way.
See, e.g., Press-Enterprise II, 478 U.S. at 9 (preliminary hearings); Press-
Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) ("Press-
Enterprise I") (criminal trial voir dire); Richmond Newspapers, 448 U.S. at
580 (criminal trials); Detroit Free Press v. Ashcroft, 2002 WL 1972919
(6th Cir. 2002) (detention hearings); First Amendment Coalition, 784 F.2d
at 473 (judicial review proceedings); Smith, 776 F.2d at 1112 (bills of
particular); Publicker, 733 F.2d at 1069-70 (civil trials).
44
to name a few--that do not ordinarily implicate national
security.12 See 8 U.S.C.S 1227(a).
Accordingly, the demands of national security under the
logic prong of Richmond Newspapers do not provide
sufficient justification for rejecting a qualified right of
access to deportation hearings in general. To conclude
otherwise would permit concerns relevant only to a discrete
class of cases to determine there is no qualified right of
access to any of the broad range of deportation
proceedings, a departure from Richmond Newspapers.
Whether national security interests justify closure of
individual deportation hearings is a question properly
addressed in the next step’s more particularized inquiry.
III. Government Interests
Having found a qualified right of access to deportation
hearings, the question remains whether the government
has a sufficient justification to "override the qualified First
Amendment right of access" by application of the Creppy
Directive. Press-Enterprise II, 478 U.S. at 9.
Where a qualified right of access has been found, courts
ordinarily have required a substantial showing to deny
access. "The presumption of openness may be overcome
only by an overriding interest based on findings that
closure is essential to preserve higher values and is
narrowly tailored to serve that interest." Press-Enterprise I,
464 U.S. at 510. There must be "a substantial probability"
that openness will interfere with these interests. Press-
Enterprise II, 478 U.S. at 14. Closure is appropriate only if
"reasonable alternatives to closure" are not available to
protect the government’s interests. Id. It bears noting,
_________________________________________________________________
12. National security presents similar challenges in some criminal
prosecutions. See 50 U.S.C. S 1801 et seq. (authorizing the Foreign
Intelligence Surveillance Court to issue search warrants in closed
proceedings to protect national security). But national security interests
have not been sufficient to reject a qualified right of access to criminal
trials in general. Instead, if access can be limited, it is because "national
security concerns about confidentiality may sometimes warrant closures"
as a "countervailing interest[ ] . . . sufficiently compelling to reverse this
presumption of openness." Richmond Newspapers , 448 U.S. at 598 &
n.24 (Brennan, J., concurring).
45
however, that these cases have not considered the
deference due the government in matters involving national
security.
The District Court found the Creppy Directive failed to
pass muster under this test because, inter alia, 13 it was
"not persuaded that the more narrow method of in camera
disclosure of sensitive evidence . . . is not an acceptable
means of avoiding a compromise of the government’s
investigation." N. Jersey Media Group, Inc. v. Ashcroft, 205
F. Supp. 2d 288, 302 (D.N.J. 2002).
The government contends it is entitled to greater
deference than is captured in this test because of two
independent considerations. First, it contends it enjoys
broad deference in the immigration area. And second, it
argues the District Court erred in failing to afford it the
special deference due the political branches in matters
concerning national security.
The District Court undervalued the deference due the
government in national security cases.14 Id. at 301-02.
Courts have consistently recognized the need for
"heightened deference to the judgments of the political
_________________________________________________________________
13. The District Court also found the Creppy Directive inadequate to the
extent it is not fully effective at blocking public access to sensitive
information, since the information might become public by any of several
other means. N. Jersey Media Group, 205 F. Supp. 2d at 301. In my
view, the government’s rejoinder effectively disposes of this finding.
14. Courts also must acknowledge the "immigration-related expertise of
the Executive Branch," and afford its judgments an appropriate level of
deference. Zadvydas v. Davis, 533 U.S. 678, 700 (2001). As the District
Court acknowledges, the government has traditionally enjoyed near-
plenary power to determine the substance of immigration law. Reno v.
Flores, 507 U.S. 292, 305 (1993); Yamayata v. Fisher, 189 U.S. 86, 100-
101 (1903). But the courts have been less likely to defer to the
government on procedural issues where constitutional rights may be
affected. Zadvydas, 533 U.S. at 695; INS v. Chadha, 462 U.S. 919, 941-
42 (1983). Even in this area, however, the Executive Branch is entitled
to a measure of deference given its primary responsibility over
immigration matters. Administrative law principles"counsel judges to
give expert agencies decisionmaking leeway in matters that invoke their
expertise." Zadvydas, 533 U.S. at 700. Therefore, executive decisions in
this area should be accorded a special degree of deference.
46
branches with respect to matters of national security" when
"terrorism or other special circumstances" are at issue.
Zadvydas, 533 U.S. at 696. A "principle of judicial
deference . . . pervades the area of national security."
Franklin v. Massachusetts, 505 U.S. 788, 818 (1992).
Consequently, courts have not demanded that the
government’s action be the one the court itself deems most
appropriate in "cases involving discrete categories of
governmental action in which there are special reasons to
defer to the judgment of the political branches." Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 570 n.5 (1993) (Souter, J., concurring); see also
Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
On the other hand, deference is not a basis for abdicating
our responsibilities under the First Amendment. Rostker,
453 U.S. at 67; United States v. United States Dist. Court,
407 U.S. 297 (1972) ("domestic security" not a sufficient
basis for relaxing warrant requirement; independent
assessment of surveillance needs by magistrate generally
required); New York Times Co. v. United States , 403 U.S.
713, 714 (1971); United States v. Robel, 389 U.S. 258, 264
(1967) ("Even the war power does not remove constitutional
limitations safeguarding essential liberties. . . . Implicit in
the term ‘national defense’ is the notion of defending those
values and ideals which set this Nation apart.") (internal
quotation omitted). At issue is whether the Creppy Directive
constitutes an impermissible restriction on the press and
public’s right of access to deportation hearings. Moreover,
there is no apparent reason to abandon the traditional
framework for assessing the relative force of the
government’s interests as against the right of access, so
long as deference is afforded the judgments of the Executive
Branch in these matters. Cf. Rostker, 453 U.S. at 70 ("We
do not think that the . . . law will be advanced by any
further ‘refinement’ in the applicable tests as suggested by
the Government" to accommodate deference in military
affairs.).
In this case, the government’s asserted interest--national
security--is exceedingly compelling. Closure in some--or
perhaps all--special interest cases may be necessary and
appropriate. In fact, the Department of Justice regulations,
47
enacted in 1964, expressly authorize an Immigration Judge
to hold closed hearings to protect the public interest. But
the question remains whether the Creppy Directive’s
blanket closure rule--which removes the decision to close
the hearing from the Immigration Judge on a case-by-case
basis--is reasonably necessary for the protection of
national security.
The government contends that a case-by-case closure of
removal proceedings would permit the release of sensitive
information, potentially revealing sources, patterns and
methods of investigation. But there is no reason that all of
the information related to a particular detainee cannot be
kept from public view. Even the initial determination to
close a proceeding--and to seal the entire record--can be
accomplished in camera and under seal. The government
need only make the required showing of special interest,
under seal to the Immigration Judge, subject to appellate
review. In making their determinations, Immigration Judges
should grant substantial deference to national security
interests. A similar procedural framework has proven
workable with criminal prosecutions.15
The government maintains that these protections would
be ineffective given the complexities in combating terrorism.
It contends that individual, seemingly innocuous pieces of
information, including a special interest alien’s name, could
be harmful to national security when compiled by terrorists
into a mosaic. This seems correct. Nevertheless, the
government could make the same argument to an
Immigration Judge, who could determine, with substantial
_________________________________________________________________
15. The Classified Information Procedures Act provides for pretrial
conferences and motion hearings to determine limits on the use and
disclosure of classified and national security related information in
criminal prosecutions. 18 U.S.C. App. 3 SS 2-4, 6, 8. These proceedings
may be held in camera and, in certain circumstances, ex parte. Id. SS 2-
4, 6; United States v. Kilmavicius-Viloria, 144 F.3d 1249, 1260-61 (9th
Cir. 1998). Congress also has created the Foreign Intelligence
Surveillance Court to hold closed reviews of search warrant requests on
a case-by-case basis, rejecting a framework where the Department of
Justice makes its own judgments on these matters in national security
cases. 50 U.S.C. S 1801 et seq.
48
deference, that the apparently innocuous information
provides appropriate grounds for closure.
The Watson Declaration also expresses the fear that open
deportation hearings could provide evidence to terrorists
that certain border crossings offer a greater chance for
illegal entry than others. At oral argument, government
counsel offered an intriguing hypothetical where open
hearings would reveal evidence that 0-of-30 terrorists had
entered the United States successfully through
Philadelphia, while the rate was 30-of-30 in New York City.
Here too, however, the government could make this
argument during a closed preliminary hearing at which the
Immigration Judge, with appropriate deference to national
security, could assess the government’s concerns about
publicizing patterns of information.
The Creppy Directive and the pre-existing Department of
Justice regulations both accommodate the government’s
national security responsibilities. But a case-by-case
approach would permit an Immigration Judge to
independently assess the balance of these fundamental
values.16 Because this is a reasonable alternative, the
Creppy Directive’s blanket closure rule is constitutionally
infirm.17 As the Supreme Court reasoned in Globe
Newspaper:
We emphasize that our holding is a narrow one: that a
rule of mandatory closure . . . is constitutionally
infirm. In individual cases, and under appropriate
circumstances, the First Amendment does not
necessarily stand as a bar to the exclusion from the
courtroom of the press and general public . . . . But a
_________________________________________________________________
16. As noted, the Department of Justice regulations permit an
Immigration Judge to close deportation hearings in their entirety in order
to protect the public interest. This closure is broader in scope than what
is likely to occur in criminal prosecutions because immigration
proceedings call for greater deference to the government on matters of
national security.
17. As noted, the Supreme Court held in Press-Enterprise II that a
restriction on a qualified right of access fails if there are "reasonable
alternatives to closure." 478 U.S. at 14.
49
mandatory rule, requiring no particularized
determinations in individual cases, is unconstitutional.
457 U.S. at 611 n.27.
The stakes are high. Cherished traditions of openness
have come up against the vital and compelling imperatives
of national security. Because I believe national security
interests can be fully accommodated on a case-by-case
basis, I would affirm that part of the District Court’s
judgment.
IV. Nationwide Injunction
The final issue is whether the scope of the District
Court’s nationwide injunction is overbroad. The grant of a
permanent injunction is reviewed for abuse of discretion.
Nutrasweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153
(3d Cir. 1999). I would hold that the District Court abused
its discretion by issuing a nationwide injunction that bars
enforcement of the Creppy Directive in any special interest
proceeding and against any member of the general public
or press. A narrower remedy will provide full relief to
plaintiffs and allow other courts to explore this difficult
constitutional question.
Generally, a plaintiff is only entitled to relief for itself.
Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875,
888 (3d Cir. 1986). In the First Amendment context,
"although the occasional case requires us to entertain a
facial challenge in order to vindicate a party’s right not to
be bound by an unconstitutional statute, we neither want
nor need to provide relief to nonparties when a narrower
remedy will fully protect the litigants." United States v. Nat’l
Treasury Employees Union, 513 U.S. 454, 477-78 (1995)
(citation omitted). In this case, injunctive relief should
apply only to those parties actually before the court if that
relief fully protects the litigants. See Ameron , 787 F.2d at
890.
Furthermore, where the government is involved in
litigation, a court should not "thwart the development of
important questions of law by freezing the first final
decision rendered on a particular legal issue." United States
v. Mendoza, 464 U.S. 154, 160 (1984). Because
50
constitutional proscriptions frequently challenge
governmental action, different parties will likely assert the
same constitutional claim against the government. Id.
Where this happens, the Supreme Court has said that
"[a]llowing only one final adjudication would deprive this
Court of the benefit it receives from permitting several
courts of appeals to explore a difficult question before this
Court grants certiorari." Id.
In this case, the only plaintiffs are North Jersey Media
Group and New Jersey Law Journal. An injunction
protecting these plaintiffs alone would remedy any violation
of plaintiffs’ First Amendment rights. Enjoining enforcement
of the Creppy Directive against other parties goes beyond
providing relief to plaintiffs, and it deprives the Supreme
Court of the opportunity to review the decisions of several
courts of appeals. For these reasons, I would reverse the
District Court’s nationwide injunction.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
51