Skip to content
Skip over table of contents to continue reading article

3rd Circuit

Open Courts Compendium

Compare

Author

Updated by RCFP legal fellow Madeline Lamo. Special thanks to the previous guide author, Robert C. Clothier of Fox Rothschild LLP.

Last updated July 2021

Compare

I. Introduction: Access rights in the jurisdiction

Compare

A. The roots of access rights

The U.S. Supreme Court has found that the First Amendment to the U.S. Constitution guarantees the press and the public a qualified right of access to attend and observe criminal proceedings.  Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982).  The U.S. Court of Appeals for the Third Circuit has recognized that this right extends to civil proceedings as well.  Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067 (3d Cir. 1984).

In addition to a First Amendment right of access, the Third Circuit recognizes a “common law right of access to judicial proceedings” in “both criminal and civil cases.”  United States v. Wecht, 484 F.3d 194, 207–08 (3d Cir. 2007) (quoting In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)).

The common law right of access also encompasses the right to inspect and copy judicial records in both civil and criminal cases.  United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981)

United States v. Wecht, 484 F.3d 194 (3d Cir. 2007).  The Third Circuit has not addressed whether there is a First Amendment right of access to judicial records in the criminal or civil context, however.

Compare

B. Overcoming a presumption of openness

Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13–14 (1986); Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”).

When only the common law right of access applies, it may be overcome by less-than-compelling interests, such as ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The Supreme Court found it “difficult to distill . . . a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598–99.

Within the Third Circuit, under the common law, a judge must balance the strong common law presumption of access against the factors militating against access.  See Bank of Am. Nat’l. Trust & Sav. Assoc. v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986).  Specifically, the court must find that there is “good cause” for closure.  See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (“[W]hether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be demonstrated to justify the order.”).  “[T]he party seeking the closure of a hearing or the sealing of part of a judicial record ‘bears the burden of showing that the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’”  In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001).

 

Compare

C. Procedural prerequisites to closure

The U.S. Supreme Court has held that where a First Amendment presumption of access applies, courts must make specific, on-the-record findings justifying the need for closure. Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13–14 (1986).

In United States v. Raffoul, 826 F.2d 218 (3d Cir. 1987), the Third Circuit set out specific procedural requirements (described below) with which a trial court must comply before closing a criminal proceeding or sealing a court record.  While Raffoul applies only to criminal trials and transcripts, the Third Circuit extended these procedural requirements to the sealing of judicial records for which there is a common law right of access, requiring an “opportunity for interested third parties to be heard.”  Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994).

Raffoul requires that trial courts, when considering motions for closure of a courtroom or record, promptly post notice of the motion for closure on the public docket and provide an opportunity for opponents of closure to be heard.  826 F.2d at 225; see also United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982).  If these motions are made in camera (meaning the court reviews them privately), the moving party must renew the motions in open court before the court rules on the motion.  Raffoul, 826 F.2d at 225–26.  Because advance notice to the public is often impractical during the course of a trial, the judge must conduct a pre-closure hearing for those present in the courtroom.  Id. at 226.

The judge is not required to conduct a full evidentiary hearing, but a hearing on a motion for closure must nevertheless be “consistent with the interests of justice.”  Raffoul, 826 F.2d at 225.  At this hearing, the party seeking closure must demonstrate compelling interests that necessitate closure and “the absence or unworkability of less restrictive alternatives.”  Id. at 225–27. 

“Closure may not be retroactively validated.”  United States v. Antar, 38 F.3d 1348, 1361 (3d Cir. 1994).  Thus, before closing the proceeding or records, the court must articulate clearly for the record the overriding interest it seeks to protect and make findings for the record that are specific enough that the appellate court can review them.  Id. at 1351 (“In order to restrict the right of access . . . a court must carefully articulate specific and tangible, rather than vague and indeterminate, threats to the values which the court finds override the right of access.”).    Particularly in the First Amendment context, the court must consider alternatives to closure and must state on the record its specific reasons for rejecting these possible alternatives.  See Miller, 16 F.3d at 551–52; United States v. Simone, 14 F.3d 833, 840–42 (3d Cir. 1994); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071–73 (3d Cir. 1984).

Compare

II. Procedure for asserting right of access to proceedings and records

Compare

A. Media standing to challenge closure

The Supreme Court has held that the public and the press have a right to challenge closure of court records and proceedings, explaining that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).

The Third Circuit has held that members of the press and public have standing to assert rights of access to a court proceeding or a record because they have suffered an “injury-in-fact” that is required to create a case or controversy under Article III of the Constitution, even though the injury is shared by a large class of potential litigants.  See United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (finding that newspapers had standing to challenge the constitutionality of a confidentiality order issued by the district court); FOCUS v. Allegheny Cty. Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996) (holding that a children’s advocacy group had standing to intervene in a child custody case for purposes of lifting a gag order placed against the parties lifted as in violation of the group’s First Amendment rights).

Compare

B. Procedure for requesting access in criminal cases

Within the Third Circuit, courts allow members of the press and the public to intervene in a case for the limited purpose of seeking access.  See, e.g., United States v. Thomas, 905 F.3d 276, 279 (3d Cir. 2018); United States v. Antar, 38 F.3d 1348, 1352 (3d Cir. 1994).

Compare

C. Procedure for requesting access in civil matters

Courts within the Third Circuit usually require intervention for the limited purpose of seeking access pursuant to Fed. R. Civ. P. 24(b)(2).  See, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 167–68 (3d Cir. 1993).  Formal motion papers are not always necessary, however, as some courts have permitted the press or public to raise the issue through letters or calls to chambers or orally in court.

Compare

D. Obtaining review of initial court decisions

In the Third Circuit, the sealing of a record or closure of a proceeding by the trial court is usually immediately appealable under the “collateral order” doctrine on the theory that the trial court’s ruling regarding access is a final order on that matter and therefore ripe for appellate review.  See 28 U.S.C. § 1291 (recognizing appellate jurisdiction over “final decisions of district courts”); United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978); United States v. Smith, 123 F.3d 140, 145 (3d Cir. 1997).  An order is “final” for purposes of the collateral order doctrine if it conclusively determines the disputed question; resolves an important issue that is separate from the underlying action; and is unreviewable on appeal from a final disposition of the proceedings.  Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

Where the requirements for the collateral order doctrine are not met, a writ of mandamus is the only immediate remedy available.  Writs of mandamus are extraordinary measures that will only issue if the party seeking the writ has no other adequate means to attain relief, and the trial court has committed a clear error of law.  See Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1108 (3d Cir. 1986).

“Whether there is a First Amendment right of access to a particular aspect of a judicial proceeding is a question of law that the Third Circuit will review de novo.”  United States v. Wecht, 537 F.3d 222 (3d Cir. 2008).  Whether the district court “has articulated findings sufficient to overcome a presumptive right of access under the First Amendment” is subject to a “‘substantially broader’ review [than the abuse of discretion standard] that ‘includes independent consideration of the district court’s order and the factual findings inferred from the evidence before it.’”  Id.

The Third Circuit has reviewed the grant or modification of a confidentiality order for abuse of discretion.  See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783 (3d Cir. 1994).

Compare

III. Access to criminal proceedings

Compare

A. In general

The Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases.  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (recognizing that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982) (recognizing First Amendment access right of access to criminal trials; striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505 (1984) (“Press-Enterprise I”) (recognizing presumptive First Amendment right of access to voir dire proceedings); Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13 (1986) (“Press-Enterprise II”) (preliminary hearings).

Following Richmond Newspapers and its progeny, the Third Circuit recognizes the public’s right of access to criminal proceedings.  United States v. Smith, 123 F.3d 140, 146 (3d Cir. 1997) (“The First Amendment right of access to criminal proceedings is firmly established.”); see also United States v. Kushner, 349 F. Supp. 2d 892, 897 (3d Cir. 2005) (discussing the Supreme Court’s recognition of “a First Amendment right to attend criminal trials”).

Compare

B. Pretrial proceedings

Courts have extended “the First Amendment right of access to preliminary hearings, suppression hearings, bail and detention hearings, competency hearings, and plea hearings. Today, almost all pretrial proceedings are presumptively open.” Dienes, Levine & Lind, Newsgathering and the Law § 3.01[1] (3d Ed. 2005) (collecting cases).

For example, the Supreme Court recognized the right of access to preliminary hearings in criminal cases in Press-Enterprise II, 478 U.S. at 13; see also El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (rule requiring probable cause hearings to be closed is irreconcilable with Press Enterprise II).

The Third Circuit has held that the public has a First Amendment right of access to plea hearings, United States v. Thomas, 905 F.3d 276, 282 (3d Cir. 2018), as well as to pretrial suppression, due process, and entrapment hearings, see United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982).

Compare

C. Criminal trials

The Supreme Court has recognized that the constitutional presumption of access extends to trials themselves. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the Supreme Court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982), the Supreme Court recognized a First Amendment access right to criminal trials and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.”  Id. at 602.  The Court noted that steps could be taken to protect the minor victims within a trial court’s discretion, however, such as prohibiting the victims from viewing sensitive details from the case.  Id. at 609 n.25.

In United States v. Raffoul, 826 F.2d 218 (3d Cir. 1987), the Third Circuit reversed an order closing a criminal trial based on threats to the defendant’s family, and the court adopted First Amendment due process notice requirements.

The Third Circuit has held that while there is no constitutional or common law right of contemporaneous access to sidebar conferences or in camera proceedings, at some point, transcripts and the substantive results of these conferences must be made public.  United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986).

Compare

D. Post-trial proceedings

In United States v. Simone, the Third Circuit held that the First Amendment right of access extends to post-trial criminal proceedings. 14 F.3d 833, 839 (3d Cir. 1994).  There, the Third Circuit addressed a district court’s decision to grant the defendant’s post-trial “motion for in camera examination of the jury” to determine jury misconduct, and concluded that the First Amendment provides for a presumptive right to access such post-trial hearings.  Id. at 840.  The court’s reasoning in Simone suggests that its holding likely extends to all post trial proceedings:  “On a broad level, we see no reason to suspect that post-trial proceedings as a general category are any different with respect to the First Amendment right of access than the other components of a criminal trial.”  Id. at 839

Compare

E. Appellate proceedings

The Third Circuit has not yet addressed whether there is a right of access to criminal appellate proceedings.

Compare

IV. Access to criminal court records

Compare

A. In general

The Supreme Court has recognized a common law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). The Third Circuit agreed, finding that in both civil and criminal cases “the existence of a common law right of access to . . . inspect judicial records is beyond dispute.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984); see also United States v. Criden, 648 F.2d 814 (3d Cir. 1981); In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001).

This right “attaches to any document that is considered a ‘judicial record,’ which ‘depends on whether [the] document has been filed with the court, or otherwise somehow incorporated or integrated into a district court’s adjudicatory proceedings.”  United States v. Wecht, 484 F.3d 194, 208 (3d Cir. 2007) (quoting In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)).  It “includes transcripts, evidence, pleadings, and other materials submitted by litigants.”  United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984).

This right of access, however, “is not absolute.”  Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988).  The common law right of access may only be overcome where it is outweighed by factors militating against access.  See id.

Compare

B. Arrest records

No reported cases within the Third Circuit.

Compare

C. Dockets

In United States v. Criden, the Third Circuit noted that “[t]he case dockets maintained by the clerk of the district court are public records.”  675 F.2d 550, 559 (3d Cir. 1982).

On November 4, 2008, the Third Circuit issued a Notice to the Bar stating that Court of Appeals dockets will not be sealed.  Third Circuit Clerk of Court, Notice to the Bar (Nov. 4, 2008), https://www.ca3.uscourts.gov/sites/ca3/files/Dockets%20in%20the%20Court%20of%20Appeals.pdf.

Compare

In Wilson v. Slatalla, 970 F. Supp. 405 (E.D. Pa. 1997), a district court in the Eastern District of Pennsylvania held that the fair report privilege extended to information contained in an affidavit in support of a search warrant.  The court relied on the Pennsylvania Superior Court’s holding that the public has a presumptive right of access to search and arrest warrant affidavits.  Wilson, 970 F. Supp. at 421.

Compare

E. Discovery materials

In United States v. Wecht, the Third Circuit held that while the common law right of access generally applies to “documents filed with the court,” it does not apply to discovery materials attached to discovery motions.  484 F.3d 194, 208–10 (3d Cir. 2007).  In Wecht, the county coroner was on trial for committing crimes of fraud by using the powers of his public office.  Id. at 198.  The FBI agent investigating the defendant had a reputation for dishonesty and complaints of fabricating the truth.  Id.  One of the issues on appeal was whether the FBI agent’s personnel records, which had been filed in connection with a discovery motion, should be unsealed under the common law right of access.  Id. at 207–08.

The Third Circuit’s analysis began by highlighting the general common law right of access to judicial records.  Id. at 208.  The court described judicial records as documents that are filed with the court, “or . . . [documents] incorporated or integrated into a district court’s adjudicatory proceedings.”  Id. at 208 (citing In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)); see also United States v. Chang, 47 F. App’x 119, 122 (3d Cir. 2002) (“Filing clearly establishe[s] the status of a document as a judicial record.”).

However, the Third Circuit held that the common law right of access does not extend to discovery materials attached to discovery motions, as “discovery traditionally has been conducted by the parties in private.”  Wecht, 484 F.3d at 208 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)).  “[D]ocuments filed with the court are generally subject to the common law right of access, unless attached to a discovery motion.”  Id. at 209.  The Third Circuit’s opinion in Wecht leaves open the issue of whether there is a common law right to documents submitted for in camera review.  See id. at 209.

Compare

F. Pretrial motions and records

The Third Circuit has recognized a right of access to pretrial documents. See United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (holding that “the First Amendment right of access recognized in Richmond Newspapers and the common law right of access … extend to bills of particulars because we think them more properly regarded as supplements to the indictment than as the equivalent of civil discovery”); United States v. Thomas, 905 F.3d 276, 281–82 (3d Cir. 2018) (plea documents).

Compare

G. Trial records

The Third Circuit has determined that materials introduced into evidence at trial are presumptively open under the common law right of access.  In so ruling on common law grounds, the court did not decide whether the right also arises under the First Amendment.  See United States v. Criden, 648 F.2d 814, 819–23 (3d Cir. 1981).

After its decision in Criden, the Third Circuit extended the common law right of access to trial materials and records not admitted into evidence.  United States v. Martin, 746 F.2d 964, 968–69 (3d Cir. 1984).  In Martin, the district court blocked public access to transcripts of recorded conversations that were played in court but not admitted into evidence.  Id. at 968.  In reversing the district court, the Third Circuit explained that the common law right of access “is not limited to evidence, but rather encompasses . . . ‘transcripts, evidence, pleadings, and other materials submitted by litigants.’”  Id. (citing All Courts Shall Be Open: The Public’s Right to View Judicial Proceedings, 52 Temple L.Q. 311, 337–38 (1979)).  Thus, the Third Circuit recognized a presumptive right of access to records and documents that are a component of trial.

Compare

H. Post-trial records

In United States v. Chang, the Third Circuit held that a sentencing memorandum, filed pursuant to U.S. Sentencing Guidelines Manual § 5k1.1, is available to the public under the common law right of access to judicial records.  47 F. App’x 119, 123 (3d Cir. 2002).  In Chang, the Court noted that the memorandum was filed with the court and used by the court in “adjudicatory proceedings.”  Id. at 122 (quoting In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)).

Compare

I. Appellate records

The Third Circuit has not yet addressed whether there is a right of access to criminal appellate records.

Compare

J. Other criminal court records issues

The Third Circuit has recognized a First Amendment and common law right of access that extends to disclosure of bills of particulars, unless sealing is narrowly tailored to further a compelling governmental interest. See United States v. Smith, 776 F.2d 1104, 1112–14 (3d Cir. 1985).

One trial court within the Third Circuit has noted that the press and public do not have a right of access to transcripts at cost, but rather must pay the court reporter the going rate.  Chase v. Public Utility Comm’n of Pa., 2008 WL 906491 (M.D. Pa. 2008).

Compare

V. Access to civil proceedings

Compare

A. In general

The U.S. Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion). And many federal and state courts—including the Third Circuit—subsequently have recognized a public right of access to proceedings and documents in civil cases. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (recognizing that “the First Amendment does secure a right of access to civil proceedings”).

Court rules also mandate openness. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Federal Rule of Civil Procedure 43(a) provides that “witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”

Compare

B. Pre-trial proceedings

Preliminary Injunction Hearings. The Third Circuit has recognized a common law and First Amendment right of access to preliminary injunction hearings. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070, 1073–74 (3d Cir. 1984).

Pretrial and Status Conferences.  One district court in the Third Circuit held – in a non-precedential opinion – that there is no presumptive right of access to pretrial and status conferences.  See In re Asbestos Prods. Liab. Litig., 19 Media L. Rep. 1220, 1991 WL 170827 (E.D. Pa. Aug. 27, 1991), at *2–3.  The court reasoned that pretrial status conferences have not been historically open to public access, and that public access to such proceedings would likely hinder, not help, the functioning of such a process.  Id.

Settlement proceedings. The Third Circuit has held that the press and public have a presumptive right of access to certain settlement proceedings.  In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001).  However, local rules in certain districts within the Third Circuit require secrecy in the context of certain types of mediation conferences. See, e.g., Federal Local Court Rule 15(5)(c) (E.D. Pa.) (“All proceedings at any mediation conference authorized by this Rule (including any statement made by a party, attorney or other participants) shall not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission.”).

Compare

C. Trials

The Supreme Court has not directly addressed whether there is a First Amendment or common law right of access to civil trials, though a plurality of the Court recognized that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).

Court rules also mandate openness. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Federal Rule of Civil Procedure 43(a) provides that “witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”

The Third Circuit has held that there is a presumption of public access to civil trials, citing a tradition of openness and finding that openness supports the functioning of the civil judicial process.  Publicker Indus. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984).  The Court determined that civil proceedings had traditionally been open to the public at common law and that functional considerations similarly supported a right of public access “inherent in the nature of our democratic form of government.”  Id. at 1069.  Thus, the court concluded, “[p]ublic access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.”  Id. at 1070.  Although Publicker was decided on the issue of civil trial records, it explicitly states that the public has a presumptive right of access to all civil proceedings unless the trial court makes a finding on the record that articulates a particular countervailing interest.  Id.

Although the Third Circuit has not analyzed whether the public has a presumptive right of access to bench conferences in civil proceedings, it has held that the First Amendment right of access attaches to bench conferences in the criminal context.  See United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986).  Therefore, considering the language in Publicker—stating that the right of access to civil proceedings is “no less than” the right of access to criminal proceedings—the presumptive right of access likely would attach to bench conferences in the civil context as well.  See Publicker, 733 F.2d at 1069.

Compare

D. Post-trial proceedings

Although the Third Circuit has not analyzed whether the public has a presumptive right of access to post-trial civil proceedings, it has held that the First Amendment right of access attaches to post-trial hearings regarding criminal jury misconduct.  See United States v. Simone, 14 F.3d 833, 840.  Therefore, considering the language in Publicker—stating that the right of access to civil proceedings is “no less than” the right of access to criminal proceedings—the presumptive right of access likely attaches to post-trial civil proceedings as well.  See Publicker, 733 F.2d at 1069.

Compare

E. Appellate proceedings

The Third Circuit has not specifically addressed whether there is a First Amendment or common law right of access to civil appellate proceedings.

However, in Wartluft v. Milton Hershey School & School Trust, a civil appeal that was argued before the Third Circuit when arguments were conducted remotely during the Covid-19 pandemic, the court initially granted a party’s requests that the oral argument not be live streamed online, that no recording of the oral argument be posted on the court’s website, and that the transcript be sealed. The court subsequently granted a motion to unseal the transcript and oral argument recording in a summary order.  See Order at 12, Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 20-1753, ECF No. 61 (3d Cir. Jan. 25, 2021).

Compare

VI. Access to civil records

Compare

A. In general

“The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Indeed, the Third Circuit has found that in both civil and criminal cases, “the existence of a common law right of access to . . . inspect judicial records is beyond dispute.” Publicker Indus. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984).

The Court generally recognizes a common law right of access to judicial records, though it is not without limits. See In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). The strength of the public’s interest in the suit—for example, if it involves public officials—weighs in favor of disclosure. See Shingara v. Skiles, 420 F.3d 301, 307 (3d Cir. 2005); see also In re Avandia Mktg., Sales Practices & Prods. Liabl. Litig., 924 F.3d 662, 677–78 (3d Cir. 2019). However, even strong public importance cannot overcome certain privacy interests, such as those of a woman who alleged that she lost her job because she had an abortion, which was protected under the Pregnancy Discrimination Act. See Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 (3d Cir. 2008) (upholding without discussion the district court’s decision to seal case).

The strong common law presumption of access “does not permit the routine closing of judicial records to the public.”  Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994).  A “party seeking to seal any part of a judicial record bears the heavy burden of showing that ‘the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’”  Id.  (quoting Publicker, 733 F.2d at 1071).  Such injury must be shown with specificity.  Cendant, 260 F.3d at 194.  “Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.”  Id.; see also Avandia, 924 F.3d at 679 (noting that courts may not seal judicial records that may cause “[m]ere embarrassment” because this “is insufficient to overcome the strong presumption of public access inherent in the common law right”); Publicker, 733 F.2d at 1074 (distinguishing the need to protect trade secrets, which may overcome the right of access, from the purported need to protect “bad business practices,” which may not overcome the right of access).

Compare

B. Dockets

In United States v. Criden, the Third Circuit addressed the public’s right to access pre-trial hearings in the criminal context, but noted, in dicta, that judicial dockets are available to the public. 675 F.2d 550, 554 (3d Cir. 1982).

In Doe v. C.A.R.S. Protection Plus, 527 F.3d 358, 371 (3d Cir. 2008), a civil case, the Third Circuit upheld without discussion a district court decision to seal all records filed in a civil lawsuit in which a Jane Doe plaintiff claimed she was fired because she had an abortion.  Subsequently, however, the Third Circuit released a “Notice to the Bar” stating that appellate court dockets may not be sealed.

Third Circuit Clerk of Court, Notice to the Bar (Nov. 4, 2008), https://www.ca3.uscourts.gov/sites/ca3/files/Dockets%20in%20the%20Court%20of%20Appeals.pdf.

Court dockets are available online.  One must obtain access via PACER by completing the on-line PACER Registration Form. A login and password can then be retrieved on-line if a credit card is provided or sent by U.S. mail to the address provided on the registration form.  The PACER system will contain all unsealed documents filed with the court.

Compare

C. Discovery materials

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court ruled that unfiled discovery materials, including “pretrial depositions and interrogatories[,] are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”

Once discovery documents are filed in court, the analysis changes.  The Third Circuit ruled in Leucadia, Inc. v. Applied Extrusion Technologies that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not.”  998 F.2d 157, 165 (3d Cir. 1993). However, the court held that there is “no such right [of access] as to discovery motions and their supporting documents.”  Id.

For discovery materials not filed with the Court, the Third Circuit has approved of protective orders prohibiting the parties from disclosing the materials, upon a showing of good cause. See Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).  The court in Pansy set forth the following non-exhaustive list of factors a court should consider when deciding if “good cause” exists:  (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether sharing of information among litigants will promote fairness and efficiency; (6) whether the party benefiting from the confidentiality order is a public entity or official; (7) whether the issues involved are important to the public; and (8) whether a confidentiality order will promote settlement of the suit.  Id. at 787–88.  The burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986).

Compare

D. Pre-trial motions and records

The Third Circuit has recognized that the public has a common law right of access to pretrial, non-discovery motions and related materials. See Leucadia, Inc. v. Applied Extrusion Technologies Inc., 998 F.2d 157, 165 (3d Cir. 1993); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984).

This at least includes motions for summary judgment, motions for preliminary injunctions, exhibits to complaints, and motions to dismiss. See Leucadia, Inc., 998 F.2d at 164; Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659–62 (3d Cir. 1991).

The Third Circuit has also held that there is a common law presumptive right of public access to records supporting summary judgment motions filed with the court, even if the party moving for summary judgment does not prevail.  Republic of Philippines, 949 F.2d 653, 660 (3d Cir. 1991).  The Court reasoned that summary judgment motions shape “the scope and substance of the litigation.”  Id.  Court require a party seeking to overcome this right of access to show a particular injury.  Id.; see also Yansick v. Temple Univ. Health Sys., 297 F. App’x 111 (3d Cir. 2008) (affirming district court’s refusal to seal a summary judgment motion to protect a party from personal embarrassment).

In one case, the Third Circuit permitted the sealing of an “informal brief” that contained unsubstantiated charges against a judge, clerk of the court, and court attorney.  Drake v. Steamfitters Local Union 420, 144 F. App’x 932, 934 n.1 (3d Cir. 2005).  The Third Circuit found that the allegations in the brief aimed to personally damage the reputations of the individual litigants and officials trying the case and concluded that this “countervailing interest” overcame the presumption of access. Id.

Courts within the Third Circuit routinely extend the presumptive right of access to pretrial motions and records filed with the court, including “the complete transcripts of testimony, legal argument, and other proceedings in open court.”  Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 898 (E.D. Pa. 1981).

Compare

E. Trial records

The Third Circuit recognizes a qualified common law right of access to documents referred to in trial and admitted into evidence. See Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988). Documents that are referred to at trial become part of the record and are thus presumptively accessible to the public.  Litigants waive whatever confidentiality interest they may have if no effort is made to limit this disclosure.  Id. at 680.   The right of public access does not depend on whether the evidence in question was properly admitted. See id. at 679 n.11; see also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 898 (E.D. Pa. 1981) (finding that portions of documents read into the record in open proceedings became part of judicial record, without regard to whether they were filed with the court).

The presumptive right of access extends to documents under a protective order that are later introduced as an exhibit at trial.  Littlejohn, 851 F.2d at 680 (citations omitted).  The Littlejohn court found that when the party seeking protection did not object to use of the documents based on the protective order, that party waived their rights under the protective order and the trial court “published” those exhibits as public documents.  Id.

Compare

F. Settlement records

Although the Supreme Court has not addressed the issue, the Third Circuit has distinguished

between settlement agreements that are “filed with, interpreted or enforced by the district court” and those that are not when determining whether the public has a presumptive right of access. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). In Pansy, the settlement agreement at issue “was never filed with, interpreted or enforced by the district court” and was therefore not a judicial record, subject to the right of access. Id.; see also Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir. 1993) (holding that the public does not have a presumptive right of access to unfiled settlement agreements).

The Pansy court contrasted the situation before it with another case in which a settlement agreement was deemed to be a judicial record “because it had been filed with and enforced by the district court.” Id. (citing Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344–45 (3rd Cir. 1986)).  The generalized interest in encouraging settlements does not constitute good cause for sealing a filed settlement agreement.  Bank of Am. Nat’l. Trust & Sav. Assoc., 800 F.2d at 346.  Similarly, “‘[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning,’ do not support a good cause showing.” Pansy, 23 F.3d at 786 (quoting Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).

Compare

G. Post-trial records

The Third Circuit has not yet specifically addressed whether there is a right of access to post-trial records in civil cases.

Compare

H. Appellate records

The Third Circuit’s local rules prohibit including the names of minor children in any document filed with the court.  If identifying the minor is necessary, the minor may only be identified with initials. Local App. R. Misc. 113.12(2) (3d Cir.).

The Third Circuit has not specifically addressed whether there is a First Amendment or common law right of access to civil appellate records.

However, in Wartluft v. Milton Hershey School & School Trust, a civil appeal that was argued before the Third Circuit when arguments were conducted remotely during the Covid-19 pandemic, the court initially granted a party’s requests that the oral argument not be live streamed online, that no recording of the oral argument be posted on the court’s website, and that the transcript be sealed. The court subsequently granted a motion to unseal the transcript and oral argument recording in a summary order.  See Order at 12, Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 20-1753, ECF 61 (3d Cir. Jan. 25, 2021).

Compare

I. Other civil court records issues

Compare

VII. Jury and grand jury access

Compare

A. Access to voir dire

The Supreme Court recognized a First Amendment presumption of access to voir dire proceedings in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984). Despite the parties’ agreement that the proceedings should be closed, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505.

The Third Circuit has affirmed the right of access to voir dire proceedings.  See United States v. Wecht, 537 F.3d 222 (3d Cir. 2008); United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (finding that trial court erred in sealing transcripts of voir dire and imposing restrictions on juror interviews post-trial); id. (“It would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door.”).

The Third Circuit has also recognized a First Amendment right of access “to post-trial hearings to investigate jury misconduct.”  United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994).

Compare

B. Juror identities, questionnaires and other records

In United States v. Wecht, 537 F.3d 222, 239–40 (3d Cir. 2008), the Third Circuit held that the public has a First Amendment right of access to the names of both trial jurors and prospective jurors.  The court found that “a presumption of openness exists at the latest at the time of the swearing and empanelment of the jury” and added that although press coverage during trial “might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.”  Id. The Third Circuit concluded that the district court failed to establish that this presumptive right of access had been overcome, as it did not state specific reasons for withholding juror names and failed to consider less-restrictive alternatives. Id. at 242.

In Wecht, the Third Circuit permitted voir dire to be conducted, in part, using written questionnaires rather than in open court, finding that it is “well established that ‘the method of conducting voir dire is left to the sound discretion of the district court.’”  Id. The media intervenors did not seek access to the questionnaires in that case, id., and the Supreme Court has not addressed whether there is a right of access to such questionnaires.

In addition, the Jury Selection and Service Act of 1968, 28 U.S.C. § 1863(b)(7), provides for the disclosure of juror names once the jurors have been summoned and either appeared or failed to appear, unless secrecy is in the “interest of justice.”

The Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512 (1984).

The Third Circuit expanded on this in United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994), noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?” In addition to the First Amendment access right, the court found that “the [voir dire] transcript at issue is a public judicial document, covered by a presumptive right of access” under the common law. Id. at 1360 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)).

Compare

C. Grand jury proceedings and records

“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979).

The Federal Rules of Criminal Procedure provide that:  “Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury.” Fed. R. Crim P. 6(e)(5).

In United States v. Smith, the Third Circuit held that “grand jury proceedings are not subject to a First Amendment right of access.”  123 F.3d 140, 148 (3d Cir. 1997).  The Third Circuit has also held that there is no presumptive right of access to criminal proceedings where “grand jury materials are involved.”  In re Newark Morning Ledger, Co., 260 F.3d 217, 222 (3d Cir. 2001).  The Third Circuit explained that closure of a hearing is warranted if it “would necessarily disclose grand jury matters.”  Id. at 224 (citing Smith, 123 F.3d at 150).  Rather, the Third Circuit has held that courts should close the initial proceedings; determine if the hearing contains grand jury information; and then “inform the parties that [the court] will disclose all nonsecret aspects of . . . the hearing” once the determination is made.  Id. at 225 (quoting Smith, 123 F.3d at 152–54).

The Federal Rules of Criminal Procedure instruct courts to keep grand jury records “under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Crim. P. 6.

However, information or documents are not protected under the grand jury exception to the presumptive right of access just because the information was presented to a grand jury—especially if the information was developed “independently” and “outside the grand jury process.”  United States v. Chang, 47 F. App’x 119, 121–22 (3d Cir. 2002) (citing In re Grand Jury Matter, 697 F.2d 511, 513 (3d Cir. 1982); In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir. 1982)).  In other words, documents that are prepared independent of the grand jury, even if intended to be used in grand jury proceedings, are not subject to the exception for grand jury materials.  See id.

Grand jury participants are generally forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded, although this rule does not apply to witnesses.  See Butterworth v. Smith, 494 U.S. 624, 632 (1990).

Compare

D. Interviewing jurors

The Third Circuit has not addressed the propriety of court-ordered restrictions on press interviews of jurors.

Compare

VIII. Proceedings involving minors

Compare

A. Delinquency

The Supreme Court has not recognized a right of access to juvenile proceedings or records. In In re Gault, 387 U.S. 1, 25 (1967), the Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” Jurisdictions vary widely in allowing access to juvenile delinquency proceedings.

However, the Third Circuit suggested that under some circumstances “an across-the-board ban on access to juvenile proceedings . . . would pose a substantial constitutional issue.” United States v. A.D., 28 F.3d 1353, 1358 (3d Cir. 1994).  The Court did not specify a standard for determining when juvenile proceedings would be accessible to the media but held that the federal district courts have authority to grant closure by a balancing of interests on a case-by-case basis. See id.

Compare

B. Dependency

The Supreme Court has not recognized a right of access to juvenile dependency proceedings or records, and in “abuse, neglect, dependency, and custody matters . . . courts have hesitated to extend a First-Amendment-based right of access.” Dienes, Levine & Lind, Newsgathering and the Law § 7.01[2] (3d Ed. 2005) (collecting cases). In the absence of a presumption of openness, access varies widely from jurisdiction to jurisdiction, and the Third Circuit has not addressed this issue.

Compare

C. Other proceedings involving minors

Compare

D. Prohibitions on photographing or identifying juveniles

Even where juvenile proceedings are closed, the Supreme Court has made clear that a court may not “punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105–06 (1979). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 308 (1977), the Court likewise reversed an order that “enjoined members of the news media from ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ in connection with a juvenile proceeding involving that child then pending in that court.”

The Third Circuit has addressed whether a newspaper can be held liable for reporting the arrest of a juvenile on criminal charges.  Bowley v. City of Uniontown Police Dep't, 404 F.3d 783, 786–87 (3d Cir. 2005).  The court articulated the following test: “(A) whether the information was truthful and lawfully obtained; (B) whether the information concerned a matter of public significance; and (C) whether the imposition of liability would be the most narrowly tailored way to serve a state interest of the highest order.”  Id.  The Third Circuit affirmed dismissal of the lawsuit against the paper, finding that the paper violated no law when it obtained the information and that the matter was one of public concern.

Compare

E. Minor testimony in non-juvenile courts

In Globe Newspaper Co. v. Superior Court, the Supreme Court recognized a First Amendment right of access to criminal trials and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” 457 U.S. 596, 607–08 (1982). At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the

Compare

IX. Special proceedings

Compare

A. Tribal Courts in the jurisdiction

The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall … make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. §1302. However, only the tribes themselves can enforce the rights guaranteed under ICRA, and tribes retain the right to exclude nonmember journalists from tribal property. See generally Annie Cappetta & Sarah Matthews, Press Freedom on Tribal Lands, RCFP, https://www.rcfp.org/resources/press-freedom-on-tribal-lands/.

Compare

B. Probate

Neither the Supreme Court nor the Third Circuit has addressed whether probate proceedings or records are presumptively open.

Compare

C. Competency and commitment proceedings

Neither the Supreme Court nor the Third Circuit has specifically addressed whether competency and commitment proceedings are presumptively open.

Compare

D. Attorney and judicial discipline

Neither the Supreme Court nor the Third Circuit has specifically addressed whether attorney disciplinary proceedings are presumptively open.

Compare

E. Immigration proceedings

The Supreme Court has not addressed the issue. However, the Third Circuit in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 201 (3rd Cir. 2002), stated: “In our view the tradition of openness of deportation proceedings does not meet the standard required by Richmond Newspapers, or even its Third Circuit progeny.”  The Third Circuit found that it was far from clear that deportation proceedings were traditionally open and further found that there was a strong national security interest in shielding certain deportation proceedings from public access.  Id. at 203.

Compare

F. Other proceedings

The Third Circuit ruled that state-sponsored arbitration proceedings for business disputes were sufficiently similar to civil trials to be subject to the First Amendment right of access. Del. Coal. for Open Gov’t, Inc. v. Strine, 733 F.3d 510, 521 (3d Cir. 2013).

However, local district rules within the Third Circuit allow parties to conduct annexed mediation and other alternate dispute resolution programs in private. See, e.g., Local Rule 15(5)(c) (E.D. Pa.) (“All proceedings at any mediation conference authorized by this Rule (including any statement made by a party, attorney or other participants) shall not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission.”).

Compare

X. Restrictions on participants in litigation

Compare

A. Media standing to challenge third-party gag orders

The Supreme Court has not addressed the issue, but lower courts have found that media organizations have standing to challenge gag orders on third parties. The Third Circuit has held that a third party (such as a member of the press or public) has standing to challenge a gag order “only when there is reason to believe that the individual subject to the gag order is willing to speak and is being restrained from doing so.”  United States v. Wecht, 484 F.3d 194, 202 (3d Cir. 2007) (quoting FOCUS v. Allegheny Cty. Court of Common Pleas, 75 F.3d 834, 838–39 (3d Cir. 1996)).  This requirement ensures “that there is an injury in fact that would be redressed by a favorable decision.”  Id. at 203 (quoting FOCUS, 75 F.3d at 838). The fact that parties may have agreed to a gag order does not mean that an intervenor lacks standing to challenge it, as “consent of the parties to an order limiting speech is irrelevant as long as the third party can demonstrate that an individual subject to the order would speak more freely if the order is lifted or modified.”  Id.

Compare

B. Gag orders on the press

The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n v. Stuart that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. 427 U.S. 539, 559 (1976). Such a gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

Compare

C. Gag orders on participants

The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991). In Gentile, the Court found constitutional a Nevada rule providing that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Id. at 1060, 1076.

The Court has not addressed the proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards. In United States v. Wecht, the Third Circuit addressed a local court rule prohibiting attorney speech that had a “reasonable likelihood of prejudic[ing]” a judicial proceeding. 484 F.3d 194, 201 (3d Cir. 2007). Rather than reach the constitutional issue (whether this standard conflicted with the “substantial likelihood of material prejudice” standard set forth in Gentile), the Court “exercise[d] its supervisory authority to require that district courts apply Local Rule 83.1 to prohibit only speech that is substantially likely to materially prejudice ongoing criminal proceedings.”  Id. at 205 (emphasis added). The court noted that its holding “applies to the local rules of all the district courts in [the Third] Circuit.”  Id. at 205 n.9.

In Rodgers v. U.S. Steel Corp., the Third Circuit reversed a district court order prohibiting the plaintiff’s counsel from disseminating certain documents. 536 F.2d 1001, 1008 (3d Cir. 1976). Viewing this order as a prior restraint, the Third Circuit held that the district court had failed to make any finding that disclosure of the information “would present an imminent threat to the administration of justice.”  Id. (citations omitted).

Compare

D. Interviewing judges

The Third Circuit has not addressed this.

Compare

XI. Other issues

Compare

A. Interests often cited in opposing a presumption of access

Where a court finds a constitutional presumption of access to proceedings or records, that presumption can only be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values.”  Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984).

Fair trial rights                                             

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) and subsequent cases, the Supreme Court recognized that the Sixth Amendment right to a fair trial can sometimes overcome the presumption of openness. But it added that “although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial.” Id. The Court found that less-restrictive measures, such as witness or juror sequestration, could have adequately protected the defendant’s fair trial rights in that case, and accordingly concluded that the courtroom closure had been improper. Id. at 581.

In United States v. Wecht, the Third Circuit held that a criminal defendant’s speculative concerns about the publication of articles in newspapers and jury tampering were insufficient to outweigh the right of access to voir dire and the identities of jurors. 537 F.3d 222, 242 (3d Cir. 2008).

In civil cases, the Third Circuit held that a district court’s broad confidentiality order based, in part, on its finding that disclosure of “discovery materials to the media could unduly prejudice the public” from which jurors “may be selected” was insufficient to justify an abridgement of the right of access and characterized the asserted interest as “exactly the type of broad, unsubstantiated allegations of harm that does not support a showing of good cause” for closure.  Shingara v. Skiles, 420 F.3d 301, 307 (3d Cir. 2005) (emphasis in original).

Trade secrets or sensitive business information      

The Third Circuit has recognized that trade secrets may justify sealing, but it cautioned that information about poor management or business practices does not similarly warrant an abridgement of the public’s right of access.  Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1074 (3d Cir. 1984); see also Littlejohn v. BIC Corp., 851 F.2d 673, 685 (3d Cir. 1988) (“[N]on-trade secret but confidential business information is not entitled to the same level of protection from disclosure as trade secret information.”).

National security and state secrets                           

In rare instances, courts have closed proceedings in part or in whole in the interest of national security. In M.K.B. v. Warden, 540 U.S. 1213 (2004), for example, an Algerian-born Florida resident named Mohamed K. Bellahouel was secretly jailed by U.S. authorities for five months between late 2001 and early 2002. Bellahouel filed a habeas corpus petition challenging his captivity, but the courts kept the case entirely secret. Twenty-three media and public interest organizations asked to intervene in the case in order to challenge the sealing of Supreme Court records. But the Supreme Court denied Bellahouel’s petition for review, denied the news media’s motion to intervene, and even allowed the government to file a completely secret brief, all without comment.

Privacy           

The Supreme Court repeatedly has recognized that, under some circumstances, privacy interests may justify at least a partial abridgement of the public’s right of access. In Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512 (1984), for example, the Court held that despite the presumption of access “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.”

Generally, embarrassing, unflattering, or false information does not rise to the level of “intensified pain” that warrants closure.  United States v. Criden, 681 F.2d 919, 922 (3d Cir. 1982); see also Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 484 (3d Cir. 1995) (“General allegations of injury to reputation and client relationships is insufficient to justify judicial endorsement of an umbrella confidentiality agreement.”).  However, one district court held, in an unpublished and non-precedential case, that privacy interests could override the presumption of access if case records contain information that would cause extreme humiliation if made public, particularly when the harm would be “nonmonetizable.”  Doe v. Amtrak, No. CIV. A. 94-5064, 1997 U.S. Dist. LEXIS 2620, 1997 WL 116979, at *1 (E.D. Pa. March 11, 1997) (granting a motion to seal the record of a rape trial) (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)).

The Third Circuit has held that the presumption of public access may be overcome if disclosure would “inflict unnecessary and intensified pain on third parties” who were entitled to such protection.  See United States v. Criden, 648 F.2d 814, 829 (3d Cir. 1981) (finding that district court’s order on remand did not comply with appellate court’s previous instructions to disclose recordings admitted into evidence during criminal trial with narrow exclusions for references that would “inflict unnecessary and intensified pain on third parties”); see also Frederick v. Reed Smith Shaw & McClay, 1993 WL 291311, *1 (E.D. Pa. July 20, 1993).

Even in the face of such privacy interests, however, blanket closure rules are impermissible. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982), the Supreme Court struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” It added that the court could still protect the minor victim by, for example, limiting parties’ ability to cross-examine or confront the victim or by denying parties access to “sensitive details concerning the victim and the victim’s future testimony.” Id. at 609 n. 25.

Compare

B. Cameras and other technology in the courtroom

The Supreme Court ruled in 1978 that “there is no constitutional right to have [live witness] testimony recorded and broadcast . . . . Nor does the Sixth Amendment require that the trial—or any part of it—be broadcast live or on tape to the public.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). But in Chandler v. Florida, 449 U.S. 560, 583 (1981), the Court confirmed that “the Constitution does not prohibit a state from experimenting with” cameras in the courtroom, and all states have done so to one extent or another. Jurisdictions vary widely, and the issue is governed by state law rather than a constitutional access right.

In federal criminal trials, Federal Rule of Criminal Procedure 53 provides that generally “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

Although the Third Circuit has not considered the videotaping of a civil trial, it has held that courts may prohibit cameras from proceedings which are presumptively accessible to the public.  See Whiteland Woods, L.P. v. Twp. of W. Whiteland,193 F.3d 177, 184 (3d Cir. 1999).  The Third Circuit found that the media’s ability to “take notes, use audio recording devices, or even employ stenographic recording” served as sufficient replacements to videotaping a live proceeding.  Id. at 183.

Authorization

Local rules within the Third Circuit generally prohibit videotaping or photographing within the courtroom and/or courthouses, subject to certain exceptions.  See, e.g., Local R. 83.1(H) (W.D. Pa.) (banning all videotaping or photography in “any hearing room, corridor, or stairway leading thereto” on any floor occupied by the court or at any other place designated by the court for holding court or judicial proceedings, with the exception of designated press rooms); Local R. 83.1(M.D. Pa.) (banning all videotaping or photography within a courtroom); Local R. 83.3 (E.D. Pa.) (banning all videotaping or photography within a courtroom (which includes hallways outside courtrooms and the ground floor elevator bay); Local R. 83.2 (D. Del.) (banning all videotaping or photography in “connection with any judicial proceeding within” the courthouse, with certain exceptions); Local Civ. R. 401.1 (D.N.J.) (banning all videotaping or photography in connection with any judicial proceeding “in the courtroom or its environs” (defined to include entrances and exits from the building), with certain exceptions).

Circumstances where cameras are permitted      

Each district court has certain exceptions for cameras, e.g., for ceremonial proceedings, moot court proceedings, and bar association activities, etc.

Limitations on use of footage                                               

The Third Circuit has held that the common law right to inspect judicial records extends a right to copy and broadcast video introduced at trial, except that which the court determines would be “impermissibly injurious to third parties.” United States v. Criden, 648 F.2d 814, 829 (3d Cir. 1981) (finding that district court’s order on remand did not comply with appellate court’s previous instructions to disclose recordings admitted into evidence during criminal trial with narrow exclusions for references that would “inflict unnecessary and intensified pain on third parties”).

Compare

C. Tips for covering courts in the jurisdiction

Structure of the court system           

The following district courts lie within the Third Circuit Court of Appeals’ jurisdiction:

United States District Court for the Eastern District of Pennsylvania

United States District Court for the Middle District of Pennsylvania

United States District Court for the Western District of Pennsylvania

United States District Court for the District of Delaware

United States District Court for the District of New Jersey

Obtaining records                             

Federal court records are available through the web-based Public Access to Court Electronic Records (PACER) system at a charge of $.10 per page.

 

Compare