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By Michael Roffe
Research assistant

After the horrific events of Sept. 11, the executive and administrative branches of government instituted a series of actions and policies to control access to information, institutions and events deemed vital to the nation’s security.

As the government investigation of the terrorist attacks proceeded in secrecy, members of the press and various civil liberties groups complained that their ability to gather information was being severely restricted. Several lawsuits have challenged the restrictions on First Amendment grounds. The litigation has resulted in mixed decisions among the federal courts. Clearly, there is a struggle to reconcile the requirements of national security with the First Amendment guarantees of a free press and the importance of an informed electorate. First Amendment jurisprudence provides some guidelines, but the issue remains generally unresolved by the courts.

The post-9/11 access cases currently in the federal courts present the controversy: Does the First Amendment provide some protection for news and information gathering, and to what extent may the government restrict access to information by alleging national-security interests or intelligence concerns? The courts are looking to settled bodies of First Amendment law to piece together a framework for balancing security concerns with constitutional freedoms.

There is no Supreme Court case holding that the First Amendment guarantees a general “right of access” to government information. The first Supreme Court case on the issue was Zemel v. Rusk (1965), in which the Court held that “the right to speak and publish does not carry with it the unrestrained right to gather information.” In Houchins v. KQED (1978), the high court held that “the public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.”

There is, however, a patchwork of Supreme Court and lower court decisions concerning press and public access to specific types of government-controlled information, institutions and events. In only a few matters have the courts been willing to grant an unqualified First Amendment right of access to the press or public. The Supreme Court has nevertheless recognized that freedom of the press would be “eviscerated” without some form of protection for gathering information and news. (See Branzburg v. Hayes, 1972.)

Post-9/11 federal cases

  • The government detained more than 1,100 non-U.S. citizens for alleged immigration violations or as “material witnesses” to the terrorist attacks of 9/11. On Sept. 21, 2001, Chief Immigration Judge Michael Creppy issued a directive mandating that deportation proceedings be conducted in secret without access by the press or public in all cases deemed by the Justice Department to be of “special interest” to the Sept. 11 investigation. Reporters and civil liberties groups sued the Justice Department, claiming the First Amendment prohibits the government from categorically barring them from deportation proceedings without a particularized showing in a given case that closure is necessary for security reasons. In Detroit Free Press v. Ashcroft, the 6th Circuit held that the “Creppy directive” violates the First Amendment as interpreted in the Richmond Newspapers line of cases (see below) in that it does not obligate the hearing judge to make a particularized showing in each instance of a compelling reason for closure. But the 3rd Circuit upheld the directive, citing compelling national security concerns, in North Jersey Media Group v. Ashcroft. Despite the conflict in the circuit court holdings, the Supreme Court denied an appeal from the 3rd Circuit by the North Jersey Media Group (May 27, 2003).

  • On Oct. 12, 2001, U.S. Attorney General John Ashcroft issued a memorandum to federal agency heads that substantially broadened the agencies’ discretion to deny access to information requested under the Freedom of Information Act. Ashcroft maintained that although the Department of Justice was committed to full compliance with the FOIA, it was nevertheless “equally committed” to protecting other “fundamental values,” which included “safeguarding our national security.” The memorandum has been controversial and has spawned several FOIA cases relating to post-9/11 issues.

    On Oct. 29, 2001, various public-interest organizations submitted FOIA requests to the Justice Department, INS and FBI seeking disclosure of the identities, locations of arrest, current whereabouts, nature of charges, names of attorneys and similar information about the detainees. When the request was substantially denied by the agencies, citing security concerns, plaintiffs filed suit. The district judge ordered the government to release the names of the detainees and their attorneys, while denying access to information about the dates and locations of arrest, detention and release. That decision was Center for National Security Studies v. Department of Justice, 215 F.Supp.2d 94 (D.C. District Court 2002).

    On appeal, the U.S. Circuit Court of Appeals for the District of Columbia reversed the district court decision (June 17, 2003). In a 2-to-1 opinion, the court held that the information was properly withheld from the press under the national security exemptions in the Freedom of Information Act. Further, the court refused to “expand the First Amendment right of public access to require disclosure of information compiled during the government’s investigation of terrorist acts.” The Center for National Security Studies appealed to the Supreme Court but was denied certiorari (Jan. 12, 2004).

  • The arrest and indictment of Zacarias Moussaoui on terrorism charges has spawned several access opinions. On Nov. 19, 2003, the 4th Circuit denied part of the government’s request to close a hearing on national security grounds, stating that the “value of openness in judicial proceedings can hardly be overestimated.” But it allowed some arguments to proceed in secret. The Associated Press reported that the “public arguments will focus on the appeals court's jurisdiction; a defendant's right to question enemy combatants held overseas; and whether the district court had the authority to grant Moussaoui access to the prisoners.”

    Access to judicial proceedings
    Perhaps the most well-developed case law governing information and press access is that relating to access to criminal judicial proceedings. In a case that eventually reached the Supreme Court, reporters filed suit after being denied access to a murder trial. The Supreme Court held in Richmond Newspapers v. Virginia (1980) that although such a right of access was not specifically enumerated in the Constitution, the right to attend criminal trials was “implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press would be eviscerated.”

    In open proceedings in the post-9/11 cases regarding press access to government activities and information, Richmond Newspapers and its progeny are cited as key precedents. However, there is no way of knowing if the government was held to these standards in closed proceedings, particularly in the case of post-9/11 detainees. In M.K.B. v. Warden (2004), the Supreme Court denied certiorari for a detainee and also denied a news-media motion to intervene in the case, all without citing precedent or allowing the movants to read the government’s brief.

    (See also the First Amendment Center Online article on Courtroom access.)

    Access to institutions
    In Pell v. Procunier (1974), however, the Supreme Court found that the press did not have a constitutional right of access greater than that afforded to the public. In Pell, reporters sued to gain access to a prison to freely interview certain inmates. The Court noted that the press did have some rights of access to visit the prisons and to freely interview random prisoners, but it could not demand face-to-face interviews with specific inmates. The Court went on to note that the press and the public are regularly excluded from grand jury proceedings, judicial conferences, scenes of crime or disaster, meetings of some official bodies and meetings of private organizations. The Constitution does not impose upon government “the affirmative duty to make available to journalists sources of information not available to members of the public generally.”

    (See the First Amendment Center Online article on Journalist access.)

    Michael Roffe is a graduate of Colgate University and is pursuing a law degree at Vanderbilt University Law School. He worked as a research assistant at the First Amendment Center in 2004.

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    Last system update: Thursday, October 1, 2009 | 12:25:14
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