This week the Sixth Circuit Court of Appeals issued a decision in the case of a Lebanese man whose immigration proceedings had been ordered closed to the public. A number of organizations, including the Detroit Free Press and the American Civil Liberties Union filed suit, arguing that they have a constitutional right under the First Amendment to view the deportation proceedings.
Shortly after the September 11th attacks, Chief Immigration Judge Michael Creppy issued a memo in which he ordered that immigration proceedings for those deemed to be of “special interest” be closed to the public. This was just one of the ways in which the government sought to keep important information about the terrorism investigation secret. In a number of cases across the country, news organizations filed suit, claiming that the closed proceedings violated the First Amendment freedom of speech. In this case, the paper sought an injunction to force an open hearing, which was granted by the district court. The government appealed, and the Sixth Circuit affirmed.
On appeal the government argued that it had the right to close designated proceedings both because of the government’s plenary powers over immigration, which should require heightened deference to government decisions, and because of the need to protect national security.
The Sixth Circuit made its position obvious from the very beginning of the opinion, noting that one of the most important reasons for the freedom of the press is to provide citizens with some way to know what the government is doing, and to ensure that it is not violating peoples’ rights. While agreeing that the government has power over substantive rules of immigration, and can even make laws that when applied to citizens would be unconstitutional, the court found that provisions in the Constitution clearly limit the government’s ability to enact non-substantive rules. The government can create rules calling for a person’s deportation from the US on just about any ground it wants. However, it cannot do so without regard to the limits imposed by the Constitution. Even in the deportation context, the requirements of the First Amendment, and its purpose of preserving transparency in government, cannot be ignored.
The government relied extensively on Kleindienst v. Mandel, a Supreme Court case from 1972 in which a self-proclaimed Communist revolutionary had been denied admission to the US. Mandel was going to have spoke at an academic conference, and others who were going to attend the conference filed suit against the State Department, arguing that the denial violated their First Amendment rights. In that case, the Court found that the First Amendment interests of those who would have spoke with him were not sufficient to overcome the government’s power to determine who may be excluded from the US.
The Sixth Circuit found that this reliance was misplaced. First, the court noted that the previous decision dealt with substantive immigration issues – who may be excluded from the US. Second, because the Supreme Court had not balanced the First Amendment issues with the immigration issues, the case provided no support for the government’s argument that the decision to close proceedings should be subject only to deferential review. Various constitutional provisions have long been held to limit procedural immigration law. Aliens in deportation proceedings have due process rights, and the proceedings against them must meet certain minimum, constitutional permissible, standards.
Discussing a case from last summer in which the Supreme Court ruled that aliens who had been ordered deported, but who could not actually be deported, could not be indefinitely detained, the Sixth Circuit noted that the Court had said it might rule differently in cases involving terrorism. The court found, however, that even if the Supreme Court would have allowed closed hearings, it would not have done so without calling for an individualized determination of whether the proceedings should be closed. This, the court found, was especially the case since there was no indication that the government intended to apply the Creppy memo only to cases allegedly involving terrorism.
Having determined that the First Amendment could limit government power over immigration procedures, the court next determined whether it created a right of public access to deportation proceedings. Over the years, a line of Supreme Court cases have developed outlining what sorts of judicial proceedings must be open to the public. If proceedings have, in past experience, been open, and if logic dictates that they should be open, the government must have extremely compelling reasons to close them. The government argued that since deportation is a civil proceeding, there is no historical basis for it to be open. The court found that the nature of deportation, which is an adversarial process presided over by someone with judicial powers, designed to expel a person from their home in the US, is enough like a criminal proceeding that it should be considered historically open. Moreover, because of what occurs at deportation hearings, logic requires they be open so that others may know exactly what occurred.
The court then addressed whether the government had shown a sufficiently compelling interest to mandate the closing of deportation proceedings. While noting that the terrorism investigation is extremely important, the court found that the blanket quality of the Creppy memo, not requiring any particularized finding of why a case should be closed, did not meet this standard. Unlike the district court, the Sixth Circuit did find that national security concerns could justify closing proceedings, but that the government had failed to show why national security compelled a closed hearing in any particular case.
Therefore, the court upheld the injunction requiring the government to allow the press and the public to be present at Haddad’s deportation proceedings.
The opinion in Detroit Free Press v. Ashcroft is available online at http://laws.findlaw.com/6th/02a0291p.html.
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