When Democracy Dies Behind Closed Doors: The First Amendment and ‘Special Interest’ Hearings

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Rutgers University Law Review


In the days that immediately followed September 11, 2001, the American public learned through the news media of perhaps the biggest round-up of persons of foreign ancestry that this country has experienced since the U.S. government evacuated Japanese Americans from the West Coast during WWII. In the first two months following the attacks of September 11, 2001, law enforcement authorities detained over 1,200 individuals for questioning in connection with the terrorist attacks. Among these individuals were 762 non-citizens detained by the Immigration and Naturalization Service ('INS'). Ten days after the attacks, Chief Immigration Judge Michael Creppy, under orders from John Ashcroft, issued a directive that all “special interest” immigration proceedings be closed to the public, including members of the detainee's family. On August 26, 2002, the Sixth Circuit Court of Appeals ruled that the government's blanket order closing all “special interest” hearings violated the First Amendment. Several weeks later, however, the Third Circuit reached the opposite result, finding that, under the two-prong 'experience and logic' test in Richmond Newspapers, no First Amendment right of access to deportation hearings existed. In May 2003, the United States Supreme Court declined, without opinion, to hear the Third Circuit case, allowing that decision in favor of the government to stand. This Article has two central objectives. The first is to unpack the recent decisions by the Sixth Circuit and the Third Circuit and to explore, in the context of legal history and current politics, how they could have reached such radically different results while applying the same legal standard. In doing so, I explore various theories examining the suppression of speech and other civil liberties in times of war or other threats to national security. My second objective is to examine what the proper standard should be for closing immigration hearings to the press and public, whether the existing standard of presumptive access has constitutional stature, and what role, if any, national security should play in the calculus. Many historians and legal scholars have concluded that during times of war or other national emergencies, the courts are more likely to defer to actions taken by the Executive Branch. It is what Professor Blasi calls the 'pathological perspective.' Nonetheless, the war on terror is likely to continue indefinitely. In that context, it is critical that the Court develop a First Amendment jurisprudence that will withstand the worst of times. My article concludes that the Court must be prepared to address the difficult issues that are likely to come before it over the next several years in a way that does not undermine the First Amendment or other civil liberties. I conclude that the federal government's blanket closure of so-called “special interest” hearings to the media and the public infringed on their qualified right of access to such hearings. This right of access is grounded in the First Amendment, finding its roots in over 100 years of presumptively open deportation hearings and a nearly forty-year regulatory history of open proceedings. Furthermore, I show that compelling policy reasons for why such proceedings should be presumptively open to the press and public existed. Access to immigration hearings would thus appear to fit squarely within the “experience and logic” analysis adopted by the United States Supreme Court in Richmond Newspapers.

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Spring 2003