SPOTLIGHT
The I.N.S. Test
What's the price of not fighting for access?
When Chief Immigration Judge Michael Creppy declared all "special interest" deportation proceedings closed on September 21, 2001, the press got its first taste of access restriction in the post-9/11 era. Granted, immigration hearings were not a part of most reporters' general-assignment docket. But when more than a thousand non-U.S. citizens disappeared from the streets of Jacksonville, Ann Arbor, Chicago, Jersey City; when their arrests were not acknowledged and no information about their cases was publicly released; when every related proceeding was closed, the immigration courtroom was a place the press wanted and needed to be.
But how hard did the media push to be there?
Historically, most of the court cases that have developed the law for public access have been cases brought by the press. Today, in an era of increasingly restricted access and information, the media's role as defender of those rights is more critical than ever. "I wish there were a lot of other businesses out there hammering away and filing lawsuits," says Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, "but it really falls on the media to take this on."
Some have. The Detroit Free Press with the Ann Arbor News, and the Detroit News with the Detroit Metro Times were the first newspapers to litigate for access to a detainee hearing, in January 2002. (The cases were consolidated into Detroit Free Press et. al. v Ashcroft in March 2002.) Two months later, a coalition of lawyers in New Jersey filed suit on behalf of the North Jersey Media Group (owners of the Herald News and The Record) and the New Jersey Law Journal. The Detroit papers were seeking access to the hearing of Rabih Haddad, a prominent member of the Ann Arbor Arab community. The New Jersey papers represented an area with a high concentration of detainees in the Hudson, Passaic, and Middlesex county jails. It's not surprising that these papers would be the first to litigate, but why didn't more follow?
Critics believe some media organizations were caught in the sway of public opinion that showed citizens were willing to give up rights and privileges in the name of national security — that while general counsels certainly understood what was at stake, the media organizations themselves were perhaps not willing to confront the government or to allocate the resources needed to litigate. "These should have been command performances," says Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota. "This was a serious policy change the government was promulgating — closing down access to something that, at least by default, had been open. It's the kind of thing you would generally see the press moving right in on."
The government fights hard in court and with tremendous resources. "Money is absolutely a factor here," says Herschel Fink, counsel for the Detroit Free Press. "There has to be recognition at the very highest level of a media company that they are part of the public trust and that litigating is a necessary expense. I think newspapers recognize this better than broader-based media companies, but it shouldn't be just a handful of newspapers or news organizations that are litigating."
Many prominent news organizations — among them The New York Times Company, The Washington Post Company, The Associated Press, (New York) Daily News L.P., and ABC — joined an amicus brief in the North Jersey Media Group suit (the case lost in the Third Circuit Court of Appeals). Several media companies also joined an amicus for a Freedom of Information suit asking the Justice Department to disclose the identities of the detainees (that case lost on appeal in the District of Columbia; plaintiffs have asked the U.S. Supreme Court to review the decision). Moving forward, a broader spectrum of media organizations will need to continue the fight for access — not just to those places the public is clamoring to be, like the Scott Peterson murder trial, but also to places the public may in fact have little current interest in going. The more the executive branch is able to withhold access, the more it will feel it can do so with impunity. The more it does so with impunity, the less informed the public will be. "You have to look at amicus briefs and access motions as being as important as reporters' notebooks and pencils," says Eve Burton, vice president and general counsel of the Hearst Corporation.
If, as recent Gallup polls indicate, citizens are becoming slowly but increasingly critical of the Bush administration's chipping away at civil liberties, will they, by extension, be increasingly critical of the job the press did in defending them?
"One thing I worry about and anticipate," says Kirtley, "is when the public backlash will begin from the standpoint of saying, 'Where were you? We count on you to carry the flag of the First Amendment for public access.' Are they going to feel that we didn't do all that we should have done, not because we were legally obliged to, not because the Constitution compels us to, but because that's what we do in this society?"
Read a Q
& A with Mark Silverman, editor and publisher of the Detroit
News, exclusively on CJR.org.
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