A. The First Amendment presumption of access


The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).


The Pennsylvania Supreme Court has held that both the United States Constitution and the Pennsylvania Constitution grant the public and the press a presumptive right of access to criminal proceedings.  See U.S. Const. Amend. I; Pa. Const. Art. I, §11 (“All courts shall be open.”); Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226, 232 (1985) (“[T]he First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media.”); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, 321 (1980) (“[I]n addition to providing a right to the accused for ‘a speedy public trial,’ Art. 1, §9 [of the Pennsylvania Constitution] also has the additional requirement that ‘all courts shall be open.’”).  “This constitutional provision has been referred to as a ‘mandate’ for open and public trials … and has been applied in both civil and criminal cases…”  In the Interest of M.B.,819 A.2d 59 (Pa. Super. Ct. 2003) (citations omitted).

There are three policy bases for such access:  access “fosters public confidence in the fairness of the criminal justice system”;  it “aids in the public oversight of the judiciary”; and it “serves as a ‘community therapeutic value.’”  Commonwealth v. Davis, 431 Pa. Super. 42, 635 A.2d 1062, 1069 (1993). 

There is also “a qualified First Amendment right of access to certain judicial … documents.”  Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. Ct. 2007).  Thus, in Pennsylvania, the First Amendment right of access extends to both judicial proceedings and documents.