`Freedom of the Press Becomes a River without Water': An Attorney Describes the Fight for Access to News in a Post-September 11 World. (INS Coverage)

By Fink, Herschel P. | Nieman Reports, Winter 2002 | Go to article overview

`Freedom of the Press Becomes a River without Water': An Attorney Describes the Fight for Access to News in a Post-September 11 World. (INS Coverage)


Fink, Herschel P., Nieman Reports


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 trims 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 trim to the newspaper.

The plaintiffs won a strong ruling from U.S. District Judge Nancy Edmunds in April 2002, holding that deportation trims 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. …

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