2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-8-2002

North Jersey Media v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-2524

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"North Jersey Media v. Atty Gen USA" (2002). 2002 Decisions. Paper 639.

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PRECEDENTIAL 

 Filed October 8, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 02-2524 

NORTH JERSEY MEDIA GROUP, INC.; 

NEW JERSEY LAW JOURNAL 

v. 

JOHN ASHCROFT, Attorney General 

of the United States; MICHAEL CREPPY, HON. 

John Ashcroft, Attorney General of the 

United States and Michael Creppy, Chief 

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. 

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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 twopart 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 nonArticle 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 

 19 

 
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 mid1970s. 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 PressEnterprise 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. 
 29 

 

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 yetundiscovered 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 

 34 
 

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); PressEnterprise 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. PressEnterprise 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 nearplenary 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 
 50 

 

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 

 51