Freedom Lawyers of America

� 2002 Criminal Defense Resource Center
SIXTH CIRCUIT OPINIONS
AUGUST, 2002
CONSTITUTIONAL RIGHTS -- First Amendment
Detroit Free Press, et. al. v John Ashcroft, et. al.
#02-1437, August 26, 2002
KEITH, Daughtrey, Carr
HERSCHEL P. FINK for Detroit Free Press
LEE GELERNT for Detroit News

Affirmed district court order granting preliminary injunction against conducting secret
deportation hearings in cases involving suspected terrorists following the attacks of September Case below: 195 F Supp 2d 937 (ED Mich 2002).

The First Amendment to the United States Constitution confers a public right of access to
deportation hearings, and protects the people�s right to know that their government acts fairly,lawfully, and accurately in such proceedings. Congress�s power over immigration matters is limited by the constitution; non-citizens, even if illegally present in the United States, are �persons� entitled to due process rights. The government is not entitled to deferential review of non-substantive immigration policies, and, where a constitutional right is involved, the government must show that the challenged law is a narrowly tailored means of advancing a compelling interest. Public access plays a significant positive role in deportation hearings : it acts as check on the actions of the executive, ensures that the government does its job properly, and enhances the perception of integrity and fairness. Although the government has a compelling interest in preventing terrorism, the blanket closure rule is not narrowly tailored. It is overinclusive, overly broad, and indiscriminate. The injunction will not cause substantial harm because the government can seek closure in individual cases at appropriate times. �Democracies die behind closed doors;� the court wrote, adding that open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of democracy.