October 8, 2002UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUITNo. 02-2524NORTH JERSEY MEDIA GROUP, INC.NEW JERSEY LAW JOURNAL

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

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.

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

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

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