Freedom of Expression

United States

Judicial actions


111.          On January 9, 2002, Dolia Estévez, the Washington, D.C. correspondent for the Mexican daily El Financiero, was ordered by the U.S. District Court for the Eastern District of Virginia to hand over materials she used in the preparation of a 1999 news article about a Mexican family allegedly linked to drug trafficking.  On March 19, 2002, U.S. District Court Judge Welton Curtis Sewell granted Estévez's motion to quash the subpoena.[i]  The plaintiff in the case appealed Judge Sewell's ruling.  At the time of this writing, the appeal was still pending.  The Office of the Special Rapporteur expressed its concern about this case in a press release on February 21, 2002.[ii]


112.          On July 17, 2002, David W. Carson and Edward H. Powers, Jr., publisher and editor, respectively, of The New Observer, were found guilty on seven counts of criminal defamation in a jury trial in Kansas.  The charges stemmed from statements made in The New Observer about Carol Marinovich, the mayor/chief executive of the Unified Government of Wyandotte County/Kansas City, and her husband, Ernest Johnson, a district court judge.[iii]  Mr. Carson and Mr. Powers were each sentenced to pay a $700 fine and to a year of probation.  The sentence is suspended pending appeal of the case.[iv]  The Office of the Special Rapporteur previously expressed its concern about this case in its 2001 Annual Report.[v] 


113.          On August 2, 2002, US District Court Judge Gladys Kessler issued a decision in a suit filed by more than two dozen civil rights and public interest organizations under the Freedom of Information Act (FOIA).  The groups were appealing the denial by the Department of Justice (DOJ) of requests filed with DOJ agencies to obtain information regarding the nearly 1,000 individuals detained on criminal charges, material witness warrants, and immigration violations as part of the September 11 investigation.  The plaintiffs sought such information as the names of detainees, the circumstances of their arrest and detention, including dates of arrest and release, locations of arrest and detention, the nature of any charges filed, and their attorneys' names.  Judge Kessler ordered the DOJ to release the detainees’ names, or show that such information may validly be kept secret, and the names of their attorneys, but said that the DOJ had valid grounds to maintain the secrecy of other information regarding the arrests.[vi]  The judge's order to release the names has been stayed pending appeal.[vii]


114.          On August 26, 2002, the United States Court of Appeals for the Sixth Circuit ruled on a challenge to a directive that required that deportation hearings in "special interest cases" be closed to the press and the public, including family members and friends.  At issue in the case was the Creppy Memorandum, a directive issued by Chief Immigration Judge Michael Creppy to all United States Immigration Judges on September 21, 2001.  The Memorandum was intended to prevent the disclosure of information that could jeopardize national security in the aftermath of the terrorist attacks of September 11.  The Court held that the Creppy Memorandum was an unconstitutional limitation on the right to freedom of speech.  Noting that public access plays a significant positive role in deportation hearings because it is the main means by which the fairness of such proceedings can be monitored, the Court found that there should be a presumption of openness in these proceedings.  The government's national security concerns were valid, however, any closures of proceedings had to be decided on a case-by-case basis, with particularized findings of fact as to the need for closure.  The government had not met this burden because the Creppy directive did not set forth the standards used to classify a case as "special interest."[viii]  On October 8, 2002, the U.S. Court of Appeals for the Third Circuit also decided a case challenging the Creppy Memorandum and concluded that there was no constitutional right of access to deportation proceedings because these are administrative, rather than criminal, proceedings and there has not been an "unbroken, uncontradicted history" of openness in such cases.[ix]  Due to the conflict between the rulings of the two Circuit Courts, the issue is likely to be considered by the Supreme Court.  According to some press freedom advocates, there have been at least 600 secret immigration proceedings since the Creppy Memorandum was issued.[x]


115.          The Special Rapporteur recognizes the serious threat posed by terrorist activity and the obligation of the government to prevent and punish terrorist activity.  However, the Special Rapporteur also reiterates that, in carrying out initiatives to prevent and punish terrorism, states must continue to respect fundamental human rights and freedoms.  In its Report on Terrorism and Human Rights, the Inter-American Commission on Human Rights noted that access to information held by the government should be governed by the principle of "maximum disclosure," meaning that there is a presumption of openness with respect to such information.[xi]  In order to withhold information, the government must show that such withholding is necessary to protect a legitimate aim, such as national security.[xii]  Access to meetings of government bodies, such as court proceedings, should also be governed by a presumption of openness.[xiii]




130.     On July 12, 2002, reporter Joel Mowbray of the National Review, was detained for 30 minutes after a State Department briefing.  Guards and a federal agent demanded that Mowbray answer questions about his reporting on a classified cable concerning the U.S. system of issuing visas to Saudis.  The guards who stopped Mowbray wanted to know who gave him the cable.  He denied having the cable and was not searched.[xiv]



[i] CPJ, April 2, 2002.

[ii] See Annexes, PREN/53/02.

[iii] CPJ, July 18, 2002; Inter-American Press Association (SIP/IAPA), July 19, 2002.

[iv], December 9, 2002.

[v] IACHR, Annual Report 2001, vol. II, Report of the Office of the Special Rapporteur for Freedom of Expression, OEA/Ser.L/V/II.114, Doc. 5 rev. 1, at Chap. II, para. 193.

[vi] Center for National Security Studies v. Department of Justice, Civil Action Nº 01-2500 (D.D.C. filed August 15, 2002),

[vii] Reporters Committee for Freedom of the Press, August 15, 2002.

[viii] Detroit Free Press v. Ashcroft, Nº 02-1437 (6th Cir. August 26, 2002),

[ix] North Jersey Media Group, Inc. v. Ashcroft, Nº 02-2524 (3rd Cir. filed October 8, 2002),

[x] Reporters Committee for Freedom of the Press, Homefront Confidential, Second Edition, September 2002,
p. 20.

[xi] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1, October 22, 2002, para. 284.

[xii] Id. para. 286.

[xiii] Id. para. 287.

[xiv] Reporters Committee for Freedom of the Press, Homefront Confidential, Second Edition, September 2002,
p. 32.