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Part 1: Background and Decisions
On August 26, 2002, the United States Court of Appeals for the Sixth Circuit struck down a policy restricting the public’s right to attend deportation hearings involving national security. Less than two months later, the United States Court of Appeals for the Third Circuit upheld the same policy. This note examines the two decisions and predicts that the United States Supreme Court ultimately will decide the constitutionality of the policy.
The “Creppy Directive”
The Immigration and Naturalization Service is a part of the Department of Justice which is headed by Attorney General John Ashcroft. The INS includes an internal court system for deciding immigration issues. The Chief Immigration Judge within the INS is Michael Creppy.
At the direction of General Ashcroft, Judge Creppy issued a directive to the immigration courts that restricts access to “special interest” deportation proceedings. “Special interest” proceedings involve persons whom the Attorney General determines might have some connection to or knowledge of the events of September 11, 2001.
The “Creppy Directive” states that in “special interest” cases, all proceedings shall be closed to the press and public and to the family and friends of the deportee. The record of the proceeding is not to be disclosed to anyone except the deportee's attorney and then only when the file does not contain classified information. The Creppy Directive also prohibits court clerks from confirming or denying whether a deportee’s case is on the court’s docket or is scheduled for a hearing.
The Sixth Circuit’s Decision
In Detroit Free Press v. Ashcroft, the Detroit Free Press and others challenged the Creppy Directive on the ground that it violated the First Amendment to the United States Constitution. The First Amendment prohibits the government from making any law “abridging the freedom of speech, or of the press.” On many occasions, the First Amendment has been applied to allow the press to attend court hearings so that it will protect “the people’s right to know that their government acts fairly, lawfully and accurately.” Although First Amendment rights are subject to narrowly drawn limitations, the Sixth Circuit found the Creppy Directive failed this test. The court held the Creppy Directive unconstitutional on First Amendment grounds.
The Third Circuit’s Decision
Only a few weeks after the Sixth Circuit issued its decision, the United States Court of Appeals for the Third Circuit issued a contrary decision. The Third Circuit, on identical facts, found that the Creppy Directive did not violate the First Amendment because the events of September 11 and the ongoing war on terrorism allowed selected deportation proceedings to be closed. In reaching this conclusion, the Third Circuit noted that the media’s right of access to court proceedings historically applied to criminal cases, not deportation cases which are more like civil trials in their nature.