North Jersey Media Group, Inc. v. Ashcroft, 02-2524.

• Decision Date: 08 October 2002
• Docket Number: No. 02-2524.,02-2524.
• Parties: 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.
• Court: U.S. Court of Appeals — Third Circuit

308 F.3d 198

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.

No. 02-2524.

United States Court of Appeals, Third Circuit.

Argued: September 17, 2002.

Filed: October 8, 2002.

Robert D. McCallum, Jr., Assistant Attorney General, Christopher J. Christie, United States Attorney, Gregory G. Katsas, (Argued), Deputy Assistant Attorney General, Sharon Swingle, Robert M. Loeb, Attorneys, Appellate Staff, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellants.

Steven R. Shapiro, Lucas Guttentag, Lee Gelernt (Argued), American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, Lawrence S. Lustberg, Shavar D. Jeffries, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Edward Barocas, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, David Cole, Georgetown University Law Center, Washington, DC, Nancy Chang, Shayana D. Kadidal, Center for Constitutional Rights, New York, NY, for Appellees.

David A. Schulz, Clifford, Chance, Rogers & Wells, New York, NY, for Amicus-Appellees.

Before BECKER, Chief Judge, SCIRICA and GREENBERG, Circuit Judges.

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 developed in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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, 100 S.Ct. 2814. 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, 100 S.Ct. 2814. 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. 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, 106 S.Ct. 2735, 92 L.Ed.2d 1 (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.

The only Circuit to deal with these issues has resolved them in favor of the media. See Detroit Free Press v. Ashcroft, 303 F.3d 681 (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, ___ U.S. ___, 122 S.Ct. 1864, 152 L.Ed.2d 962 (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 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, ...