This week the Third Circuit Court of Appeals ruled that the government does not violate the Constitution in ordering immigration proceedings involving detainees deemed to be of “special interest” closed to the public. Shortly after the September 11th attacks, Chief Immigration Judge Michael Creppy issued a memo ordering immigration judges to close to the public some immigration hearings. In the case, North Jersey Media Group v. Ashcroft, a number of news organizations sued, arguing that closing the proceedings violated their First Amendment rights to access. A district court ruled for the media groups, and the government appealed. The only other appellate court to address the issue of closed proceedings is the Sixth Circuit, which ruled in favor of the media groups. Many observers who had hoped that the Third Circuit would follow suit were disappointed when the court did not.
The heart of the case is whether immigration proceedings are sufficiently similar to criminal proceedings that the same First Amendment rights of access exist. In determining whether they do, Supreme Court cases establish that the test is whether the proceeding has historically been open to the public and whether public access would play a positive role in the functioning of the proceeding. While Supreme Court cases have dealt only with access to various steps in criminal proceedings, appellate courts have routinely extended the same logic to all sorts of judicial proceedings.
The Third Circuit began by noting that while access to trials, both criminal and civil, is long established and accepted, that is not the case with access to proceedings of the executive and legislative branches. For example, while the daily floor proceedings of Congress are published, there are restrictions on the publication of certain committee meetings. Also, many administrative proceedings, such as Social Security disability claims, are closed to the public. The media groups argued that deportation proceedings should, because of their unique impact, not be treated like any other administrative proceeding.
Surveying the history of deportation proceedings, the court found that while there has never been a presumption that they should been closed, there is a long history of selectively closing proceedings. For example, hearings involving abused children are all closed. Also, the INS frequently holds deportation hearings in places, such as prisons, where the general public is not allowed. Thus, the court found, immigration proceedings were not historically open to the public.
The court then addressed whether providing for open proceedings would have a positive impact on the proceedings. There are six values openness serves, according to the Supreme Court. These are: promotion of public discussion of government affairs; promotion of public perception that proceedings are fair; providing a public outlet for community concern; providing a check on corruption; improving the performances of all those involved, and discouraging perjury. The Third Circuit found that, while opening immigration proceedings does promote all these values, that alone should not end the inquiry, because the negative effects of opening the proceedings were not considered. In pressing for closed hearings, the government argued that openness would create a number of problems, including revealing investigative sources and methods, revealing successful ways of avoiding INS detection, and providing enemies with information about what the US knows of their efforts that could help them more effectively harm the country. While observing that these concerns are, to a great degree, speculative, the court felt it was not its position to second guess the validity of the concerns, and found that the Creppy memo was not unconstitutional.
Because of the importance of this and similar cases, and the fact that the two courts of appeals that have ruled on the issue came to different conclusions, Supreme Court review of one of the cases is very likely.
The ruling is available online at http://www.ca3.uscourts.gov/opinions/022524.pdf.
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