I suspect I am among the few who can look back over a lengthy professional career and point unhesitatingly to one specific, defining event that sparked a passion and sent them down a lifelong career path. In my case, it has been a twin career of journalist for almost a decade followed by news media lawyer for decades more. Now, as an attorney representing the Detroit Free Press, I am in the midst of an access case for journalists that many predict will be the next major Supreme Court press decision and the first to challenge the U.S. Justice Department’s inconsistent post-September 11 handling of terror-linked cases.
This defining event occurred for me in an unlikely place when I was a student journalist and read a snippet of pure poetry in a 1956 dissenting Pennsylvania Supreme Court opinion contained in my press law textbook. The dissent took issue with the majority opinion, which affirmed the criminal contempt convictions of seven journalists who photographed the defendant in a murder trial outside a courtroom in violation of a local court rule. The majority rejected the defense that there existed a First Amendment right to gather news. Justice Musmanno, however, wrote this ringing affirmation of his belief in the right of a free press to gather and print the news:
Freedom of the press is not restricted to the operation of linotype machines and printing presses. A rotary press needs raw material like a flour mill needs wheat. A print shop without material to print would be as meaningless as a vineyard without grapes, an orchard without trees, or a lawn without verdure. Freedom of the press means freedom to gather news, write it, publish it, and circulate it. When any one of these integral operations is interdicted, freedom of the press becomes a river without water.
I’ve never forgotten that “river without water” quote and have used it countless times when I’ve taught student journalists press law for a decade at a state university in Detroit. It also inspired and guided me to uncover and report news as a reporter and still drives me in the courtroom to win access for clients, including the Detroit Free Press, which has never in the almost 20 years that I have been privileged to represent it been reluctant to battle for access to information that the government wants to keep secret.
The Challenge of ‘Special Interest’ Rules
The quote received new meaning from a unanimous decision of the U.S. Court of Appeals for the Sixth Circuit on August 26, 2002 in a case in which the Free Press, three other Michigan newspapers, the ACLU, and Representative John Conyers, Jr. challenged the U. S. Attorney General on his policy of holding secret deportation trials of aliens. Estimates tell us that about 400 detainees bear this “special interest” designation, which the Attorney General gives without public explanation in cases in which the person is suspected of being linked to terrorism. Such individuals are held incommunicado. The government will not publicly acknowledge their arrests, and their trials are held in secret, away from public and press view, inaccessible even to their own families.
The plaintiffs challenged that arbitrary blanket policy in a lawsuit filed in March 2002, in federal court in Detroit. The lawsuit, Detroit Free Press, Inc. v. John Ashcroft, arose specifically from the case of an Ann Arbor, Michigan man, a Muslim and native of Lebanon, who remained in the United States illegally for three years after his student visa expired. His case was brought to the attention of the Free Press when friends and family of the man, Rabih Haddad, complained about his detention and secret trial to the newspaper.
The plaintiffs won a strong ruling from U.S. District Judge Nancy Edmunds in April 2002, holding that deportation trials must be conducted in public and that specific portions could be closed only on particularized findings to accommodate overriding national security concerns, consistent with U.S. Supreme Court rulings that require open criminal trials.
The government appealed Judge Edmunds’ ruling, and in its opinion affirming her decision, the U.S. Court of Appeals for the Sixth Circuit broke new and important First Amendment ground. The August 26 opinion by Court of Appeals Judge Damon Keith itself contained language that should inspire the next generation of journalists and press lawyers. Judge Keith sharply chastised the government and warned that “democracies die behind closed doors,” and held that the press is the deputized guardian of the public’s liberties. While the Sixth Circuit’s ruling was limited to secret deportation trials, quasi-judicial administrative proceedings, the opinion broadly suggested that access to other categories of administrative proceedings, including executive and legislative, were within the ambit of the First Amendment, echoing that 1956 dissent by Justice Musmanno that long ago inspired me.
See “The People’s Right to Know vs. Government Secrecy” by Hilary Burke, whose newspaper is a plaintiff in the New Jersey case.secrecy tactics. A parallel case in the Third Circuit, however, came to the opposite conclusion on October 8, 2002. As The New York Times wrote in a front page story on October 9, “the conflict between the two courts—the only ones to rule so far on the issue—makes it reasonably likely that the United States Supreme Court will consider one of the cases.” That possibility is strong as I write this.
The government has claimed that Haddad, who is now seeking asylum in the United States, was the head of the Global Relief Foundation, an organization Haddad claims is an Islamic charity but that the U.S. Treasury Department has declared is a terrorist organization that funds worldwide terrorism. My argument in court emphasized that the Free Press sought only to observe and to report, but expressed no position on the merits of Haddad’s deportation.
Connecting Journalism With Democracy
Agreeing with the plaintiffs, the Sixth Circuit Court of Appeals first acknowledged the federal government’s “nearunrestrained ability to control our borders,” but the court added that “The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty …. Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against noncitizens, it seeks the power to secretly deport a class if it unilaterally calls them ‘special interest’ cases. The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors.”
Rejecting the government’s argument that its plenary power over immigration gave it the right to operate in secret, the panel, also composed of Circuit Judge Martha Daughtrey and District Judge James Carr of Toledo, Ohio, reminded the government that “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.” The court continued that “It would be ironic, indeed, to allow the government’s assertion of plenary power to transform the First Amendment from the great instrument of open democracy to a safe harbor from public scrutiny.” The court warned that “when government selectively chooses what information it allows the public to see, it can become a powerful tool for deception.”
The court concluded that “a true democracy is one that operates on faith—faith that government officials are forthcoming and honest, faith that informed citizens will arrive at logical conclusions …. Today, we reflect our commitment to these democratic values by ensuring that our government is held accountable to the people and that First Amendment rights are not impermissibly compromised. Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy.”
The decision in this case also signaled a readiness of the Sixth Circuit to apply the First Amendment to a broad range of other governmental information. It rejected the government’s argument that earlier Supreme Court decisions had concluded that the First and 14th Amendments do not guarantee the public a right of access to information generated or controlled by the government,” going on to say that “we believe that there is a limited First Amendment right of access to certain aspects of the executive and legislative branches.”
Press Coverage After the Sixth Circuit’s Decision
As Haddad’s deportation trial has proceeded in public following the Sixth Circuit decision and pending further government appeals, facts and questions have emerged that would have remained secret had the press, the ACLU, and Representative Conyers not fought and won the case.
As I argued in court, governmental incompetence thrives in secret. While the exposure of unfairness to and the protection of minorities from arbitrary deportation proceedings are admirable reasons for openness (the Detroit area is home to one of the largest Arab communities outside of the Middle East), the exposure of governmental incompetence is of at least equal weight. Testimony in Haddad’s deportation trial revealed that the government was aware for perhaps three years that he had traveled extensively back and forth from Afghanistan and Pakistan to the United States, sending money and equipment to those areas. Yet the government allowed Haddad to operate freely, if illegally, in this country. Only after the events of September 11 did the INS—the same INS that extended a student pilot visa for Mohamed Atta, one of the twin tower airplane bombers, six months after he died crashing his hijacked plane into the World Trade Center—arrest and seek to deport him.
Yet behind a wall of secrecy the public (and Congress) could hardly know of the INS’s inadequacies, or call for changes to protect the country. The INS and its immigration judges are a part of the Justice Department and report to Attorney General Ashcroft, who ordered the secrecy. From my student days, my passion for openness and access to governmental information was shaped by those words in a 1956 court dissent. Now, they resonate in the words of Court of Appeals Judge Keith, “Democracies die behind closed doors.”
Herschel P. Fink, a partner in Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan, represented the Detroit Free Press before the District Court and U.S. Court of Appeals for the Sixth Circuit in Detroit Free Press, Inc. v. John Ashcroft. The other plaintiffs were The Detroit News, The Ann Arbor News, the Metro Times, the American Civil Liberties Union, and Democratic Congressman John Conyers, Jr. of Detroit.