North Jersey Media Group, Inc. v. John Ashcroft

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 developed in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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, 100 S.Ct. 2814. 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, 100 S.Ct. 2814. 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. 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, 106 S.Ct. 2735, 92 L.Ed.2d 1 (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.

The only Circuit to deal with these issues has resolved them in favor of the media. See Detroit Free Press v. Ashcroft, 303 F.3d 681 (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, ___ U.S. ___, 122 S.Ct. 1864, 152 L.Ed.2d 962 (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 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 Directive unconstitutional. We will therefore reverse the Order of the District Court.

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 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 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.

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

The District Court applied the two-part First Amendment analysis set forth in Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 555, 100 S.Ct. 2814, and found that since the promulgation of the modern immigration regulations, see 8 C.F.R. § 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. § 1331 and 28 U.S.C. § 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).

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 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.

In Richmond Newspapers, 448 U.S. at 555, 100 S.Ct. 2814, 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, 100 S.Ct. 2814. 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, 100 S.Ct. 2814, the right of the press and public to attend criminal trials "is implicit in the guarantees of the First Amendment." Id. at 580, 100 S.Ct. 2814. 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, 100 S.Ct. 2814.

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, 100 S.Ct. 2814. 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, 100 S.Ct. 2814.

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, 100 S.Ct. 2814. 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, 100 S.Ct. 2814.

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, 102 S.Ct. 2613, 73 L.Ed.2d 248 (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, 106 S.Ct. 2735 (Press-Enterprise II), the Court held that there is a First Amendment right of access to preliminary hearings. Id. at 13, 106 S.Ct. 2735. In so doing, it formalized what has come to be known as the Richmond Newspapers "experience and logic" test:

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, 106 S.Ct. 2735 (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, 106 S.Ct. 2735. 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, 106 S.Ct. 2735. 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, 106 S.Ct. 2735. The Court therefore concluded that open preliminary hearings had been accorded the favorable judgment of experience. Id. at 11, 106 S.Ct. 2735 (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, 106 S.Ct. 2735. 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, 106 S.Ct. 2735. 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 examinations in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (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 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 acces