On September 21, 2001, Chief U.S. Immigration Judge Michael Creppy issued a memo stating that the deportation hearings of all post-911 "special interest" detainees must be closed to the press and the public. The government identified "special interest" cases as those in which the detainee in question has not yet been cleared of connections to terrorism by the FBI. Prior to the issuance of the Creppy Memo, immigration judges were permitted to determine on a case-by-case basis whether security or other reasons would require a case to be closed to the public, with a presumption in favor of open hearings. On March 25, 2002, the ACLU-NJ filed a lawsuit in federal district court challenging the Creppy Memo on First Amendment grounds, representing the New Jersey Law Journal and North Jersey Media Group, owner of the Herald News, which sought to send reporters to cover the hearings. We argued that the government cannot impede upon the longstanding history of openness in court proceeding, including immigration proceedings, and that the blanket non-disclosure requirement (as opposed to the case-by-case determinations) was not a narrowly tailored means of furthering the government's interests. District Court Judge John Bissell found in our favor and the government appealed. On October 8, 2002, in a 2-1 decision, the Court of Appeals for the Third Circuit reversed the district court's opinion, holding that newspapers did not have a First Amendment right of access to deportation proceedings that were determined by the Attorney General to present significant national security concerns. The ACLU-NJ filed a petition to have the United States Supreme Court hear the case. That petition was denied on May 27, 2003. This case was closed in 2003.


Lawrence S. Lustberg, Shavar Jeffries/Gibbons, Del Deo, Dolan, Griffinger & Vecchione; Steve Shapiro/ACLU; Lucas Guttentag, Lee Gelernt/ACLU Immigrant Rights Project; Nancy Chang/ Center for Constitutional Rights; David Cole/ Georgetown Law School


United States Court of Appeals for the Third Circuit