## Facts

- After the September 11, 2001 attacks, the Attorney General pursued certain immigration removal cases involving noncitizens believed to have connections to, or information about, terrorism investigations.
- The Chief Immigration Judge issued a directive requiring special procedures in designated “special interest” removal proceedings.
- Under the directive, immigration judges were required to close these hearings to the public and press, decline to confirm or deny whether such cases were on the docket, and limit release of detainee identities and proceeding-related information.
- Media organizations sought access to the closed removal hearings and related records, alleging that categorical secrecy violated the First Amendment right of access.
- The district court granted a preliminary injunction, concluding that removal hearings satisfy the First Amendment “experience and logic” test and that blanket closure was unconstitutional.
- The government appealed.

## Issues

1. Whether the First Amendment provides the public and press a right of access to immigration removal hearings designated as “special interest.”
2. Whether a categorical closure policy for those proceedings violates the First Amendment under the “experience and logic” framework.

## Decision

- The Third Circuit reversed the preliminary injunction.
- The court held that the First Amendment does not provide a right of access to the “special interest” removal hearings at issue.
- Because no First Amendment access right attached, the Attorney General’s categorical closure policy did not violate the Constitution.

## Legal Principles

- A First Amendment right of access attaches to a proceeding only if both prongs of the “experience and logic” test are met: (1) a historical tradition of openness, and (2) a significant positive role for public access in the proceeding’s functioning.
- Immigration removal proceedings are civil, administrative proceedings within a domain where the political branches have broad authority; criminal-trial access precedents do not automatically extend to this context.
- Where the historical record does not show a clear tradition of openness for the specific type of proceeding, courts may decline to recognize a constitutional access right.
- In evaluating the “logic” prong, asserted national security and investigative harms from disclosure can weigh against finding that public access plays a constitutionally required positive role.
- If no First Amendment access right exists for the proceeding, the Constitution does not require case-by-case openness determinations before closing a category of hearings.

## Conclusion

The Third Circuit held that “special interest” removal hearings could be categorically closed because the public and press lacked a First Amendment right of access under the experience-and-logic test, and it dissolved the injunction that had required openness.


N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002)