PG Publishing Co v. Carol Aichele

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3863

_____________

PG PUBLISHING COMPANY, d/b/a

The Pittsburgh Post-Gazette,

Appellant

v.

CAROL AICHELE, in her capacity as Secretary

of The Commonwealth; ALLEGHENY COUNTY

BOARD OF ELECTIONS; MARK WOLOSIK,

in his capacity as Division Manager of the

Allegheny County Elections Division

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

(D.C. Civ. Action No. 2:12-cv-00960)

District Judge: Honorable Nora B. Fischer

______________

Argued October 24, 2012

______________

Before: HARDIMAN, GREENAWAY, JR., and

VANASKIE, Circuit Judges.

(Opinion Filed: January 15, 2013)

______________

Frederick N. Frank, Esq. [ARGUED]

Ellis W. Kunka, Esq.

Frank, Gale, Bails, Murcko & Pocrass

707 Grant Street

Gulf Tower, 33rd Floor

Pittsburgh, PA 15219

Counsel for Appellant PG Publishing Company

Kemal A. Mericli, Esq. [ARGUED]

Office of Attorney General of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Counsel for Appellee Carol Aichele

George M. Janocsko, Esq.

Andrew F. Szefi, Esq.

Office of Allegheny County

Law Department

445 Fort Pitt Boulevard

300 Fort Pitt Commons Building

Pittsburgh, PA 15219

2

Allan J. Opsitnick, Esq.

564 Forbes Avenue

Suite 1301

Pittsburgh, PA 15219

Counsel for Appellees Allegheny County Board of

Elections and Mark Wolosik

Teri L. Henning, Esq.

Pennsylvania Newspaper Association

3899 North Front Street

Harrisburg, PA 17110

Counsel for Pennsylvania Newspaper Association,

Amicus Appellant

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

The instant case calls upon us to decide whether a state

statute restricting access to a polling place infringes on the

media‟s First Amendment right to gather news. Appellant PG

Publishing Company (“Appellant” or “PG”) seeks review of

the District Court‟s decision to dismiss its suit against

election officials for the Commonwealth of Pennsylvania.

Specifically, Appellant alleges violations of the First

Amendment and the Equal Protection Clause of the

Fourteenth Amendment. Appellant also seeks review of the

District Court‟s refusal to enter a consent decree agreed to by

3

PG and one of the parties relating to the suit. For the reasons

set forth below, we will affirm the District Court‟s decisions.

I. Background

Appellant brought suit pursuant to 42 U.S.C. § 1983

against (1) Appellee Carol Aichele (“Appellee”) in her

capacity as the Secretary of State of the Commonwealth of

Pennsylvania, (2) the Allegheny County Board of Elections,

and (3) Mark Wolosik in his capacity as the Division

Manager for the County Elections Division (collectively,

“Defendants”).1 Appellant‟s suit addressed the

constitutionality of 25 Pa. Stat. Ann. § 3060(d), a portion of

the Pennsylvania Election Code mandating that

[a]ll persons, except election officers, clerks,

machine inspectors, overseers, watchers,

persons in the course of voting, persons

lawfully giving assistance to voters, and peace

and police officers, when permitted by the

provisions of this act, must remain at least ten

(10) feet distant from the polling place during

the progress of the voting.

25 Pa. Stat. Ann. § 3060(d). A “polling place” is “the room

provided in each election district for voting at a primary or

election.” 25 Pa. Stat. Ann. § 2602(q).

1

The Board and Mr. Wolosik are not participating in

this appeal.

4

In its Amended Complaint, Appellant asserted two

claims:2 (1) that § 3060(d) infringed on its First Amendment

“right to access and gather news at polling places” (“Count

I”), and (2) that Defendants‟ selective enforcement of §

3060(d) presented a violation of the Equal Protection Clause

of the Fourteenth Amendment (“Count II”). (App. at 81a-

84a.)

In support of Count I, Appellant alleged that “its

reporters and photographers had previously been denied

access to polling places to gather news” in Allegheny and

Beaver Counties. (Id. at 76a.) Appellant also alleged that, in

October 2008, Mr. Wolosik and the Allegheny County Board

of Elections notified Appellant that not only was “any type of

recording inside the polling place . . . prohibited under [the

County‟s] policy,” but that “the Pennsylvania Election Code

limited [Appellant‟s] reporters and photographers from being

inside polling places” altogether.3 (Id. at 76a.) Appellant

2

The Amended Complaint purported to allege three

causes of action; however, the third count appears to be a

request for injunctive relief based on Appellant‟s claim of an

Equal Protection Clause violation.

3

At oral argument, Appellant claimed that § 3060(d),

as applied in Allegheny County, prohibited its reporters from

even recording in the direction of a polling place. This is not

so. In November 2008, in a separate state proceeding,

Appellant successfully petitioned the state court for an order,

directing that

[Mr. Wolosik and the Allegheny County Board

of Elections] and their agents are hereby

prohibited from restricting or interfering with

5

further contended that reporting from within polling places

during the November 6, 2012 election was particularly

important because “for the first time, the Voter ID Law,

House Bill No. 934, Session of 20114 [was to be] enforced,

which [would have required] all electors to present a

government-approved photo ID in order to be allowed to vote

in any election in the Commonwealth.”5 (Id. at 79a-80a.)

attempts of Plaintiff‟s agents and employees to

photograph activities in or around polling places

so long as Plaintiff‟s agents and employees are

located in areas accessible to the public or into

which they have otherwise been lawfully

admitted. No photography shall be taken from

inside the polling place or within ten (10) feet

of the entrance of the polling place.

(App. at 76a.) At issue in the state court was Allegheny

County‟s policy of prohibiting filming from within areas

accessible to the public and beyond the 10-foot boundary

imposed by § 3060(d). Despite the language in the order, the

state court did not have occasion to rule on the

constitutionality of § 3060(d) itself.

4

Nothing in our decision today relates to the Voter ID

Law. We mention it only because Appellant has alluded to its

purported relevance in the Amended Complaint and briefs.

5

After Appellant filed its Amended Complaint, the

Pennsylvania courts suspended the operative provision in the

law. See Applewhite v. Commonwealth, No. 330 M.D. 2012,

2012 WL 4497211 (Pa. Commw. Ct. Oct. 2, 2012). At oral

argument, both counsel for Appellant and Appellee conceded

that this past election represented a “soft test” of the law, in

6

Appellant sought (1) a declaratory judgment holding §

3060(d) to be unconstitutional as applied and (2)

compensatory damages for past infringement of its First

Amendment rights.6

To establish its equal protection claim in Count II,

Appellant alleged that its reporters had been “denied access to

photograph in polling places in Allegheny and Beaver

Counties.” (Id. at 77a.) At the same time, Appellant set out a

number of examples where reporters from other Pennsylvania

newspapers had the opportunity to take photographs inside

polling places in counties other than Allegheny or Beaver

Counties. Finally, Appellant alleged that its own reporters

previously had been allowed inside polling places in

Allegheny County “for the purpose of reporting upon and

photographing the electoral process only as it relates [to

certain] public figures.” (Id. at 79a.) Appellant then

requested (1) a declaratory judgment that the counties‟

application of § 3060(d) violates the Equal Protection Clause

and (2) injunctive relief (either preliminary or permanent)

against further discrimination.

that identification may have been requested, but was not

required.

6

In setting out Count I, Appellant alleged that § 3060

“impermissibly restrict[ed its] First Amendment right to

gather news and, thus, [was] facially unconstitutional.” (App.

at 82a.) Read in the context of Appellant‟s other allegations,

we do not take this language as asserting a facial challenge to

§ 3060. Appellant conceded as much during oral argument.

7

Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Defendants moved to dismiss the suit and the District Court

granted the motion. As to Count I, the District Court noted

that § 3060(d) applies to an individual‟s physical location and

not his speech, therefore obviating the need to determine

whether a polling place was a public forum. PG Publ’g Co.

v. Aichele, No. 12-CV-960, 2012 WL 4796017, at *22 (W.D.

Pa. Oct. 9, 2012). The District Court then analyzed the

statute under the rubric of content-neutral laws applied in

nonpublic fora and held that PG‟s First Amendment rights

were not abridged given that § 3060(d) is a “[content]-neutral

law of general application seeking to protect an individual‟s

„right to cast a ballot in an election free from the taint of

intimidation and fraud.‟” Id. at *27 (quoting Burson v.

Freeman, 504 U.S. 191, 211 (1992)).

As to the equal protection claim in Count II, the

District Court held that the examples of inconsistent

enforcement of § 3060(d) alleged in Appellant‟s Amended

Complaint did not rise to the level of a constitutional

violation. Specifically, the District Court held that Appellant

failed to establish that “a single election official ha[d]

discriminated against reporters working for” Appellant in

applying § 3060(d). Id. at *29 (emphasis in original).

Additionally, in September 2012 — roughly a month

after Defendants filed their motion to dismiss — Appellant

and the Allegheny County Board of Elections moved jointly

for entry of a consent decree which they argued, in essence,

resolved the dispute (“Consent Order”). The Consent Order

permitted Appellant and its reporters to enter polling places in

Allegheny County for purposes of recording the sign-in

process. This permission was subject to various restrictions

including, for example, an obligation for Appellant‟s

8

personnel to stop recording if voters objected. The Consent

Order was also explicitly “conditioned upon [Appellant]

discontinuing its action against the Commonwealth.” (App.

at 142a.) Appellee, not a party to the Consent Order, objected

that the Order was illegal in that it essentially permitted

Appellant to act in contravention of a valid state law (§

3060(d)). The District Court agreed and refused to enter the

Order, noting that the parties could not “use a consent decree

to enforce „terms which would exceed their authority and

supplant state law.‟” Id. at *32 (quoting Keith v. Volpe, 118

F.3d 1386, 1393 (9th Cir. 1997)).

PG filed a timely appeal from the District Court‟s

aforementioned rulings. Given that Election Day was fast

approaching, we granted the parties‟ motion to expedite the

proceedings. On November 1, 2012, we entered an order

affirming the District Court‟s rulings. This opinion sets forth

the bases of the Order.

II. Standard of Review

We exercise plenary review over the District Court‟s

grant of a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d

121, 128 (3d Cir. 2010). “[I]n deciding a motion to dismiss,

all well-pleaded allegations of the complaint must be taken as

true and interpreted in the light most favorable to the

[Appellant], and all inferences must be drawn in [its favor].”

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(citation omitted). To withstand a Rule 12(b)(6) motion to

dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted).

9

We review the District Court‟s ruling regarding the

Consent Order for an abuse of discretion, see NutraSweet Co.

v. Vit-Mar Enters., 176 F.3d 151, 153 (3d Cir. 1999), and

look to see whether the decision was “arbitrary, fanciful or

clearly unreasonable.” Democratic Nat’l Comm. v.

Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012)

(quoting Moyer v. United Dominion Indus., Inc., 473 F.3d

532, 542 (3d Cir. 2007)); see also Hanover Potato Prods.,

Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (“An abuse

of discretion arises when the district court‟s decision rests

upon a clearly erroneous finding of fact, an errant conclusion

of law or an improper application of law to fact.” (internal

quotation marks omitted)).

III. The Right of Access

Appellant argues that it has a constitutionally protected

right of access to gather news at the polling place and that any

restriction on this right must be reviewed under strict

scrutiny. While PG never explicitly claims that the media

should have greater First Amendment rights than the general

public, Appellant‟s arguments hinge on one particular

principle: that the Framers “thoughtfully and deliberately

selected [the press] to improve our society and keep it free.”

(Appellant‟s Br. 15 (quoting Mills v. Alabama, 384 U.S. 214,

219 (1966)).7

7

The brief filed by the Pennsylvania Newspapers

Association as amicus curiae advances a similar point. In

describing its interest as an amicus, the Association notes that

it “wishes to participate in this matter [in part] to stress the

policy considerations that mandate an interpretation of the

Pennsylvania Election Code and the First Amendment to

10

Appellee counters that (1) Appellant enjoys no greater

right to gather news than what has been granted to the general

public, (2) that § 3060(d) is a law of general applicability

which incidentally burdens Appellant‟s right to gather news,

and (3) that a polling place is a nonpublic forum thereby

implicating only a modest constitutional review — one that §

3060(d) passes.

In reviewing the constitutional validity of a statute,

“[t]he first issue to be addressed . . . is whether a First

Amendment right exists, for „if it [does] not, we need go no

further.‟” Kreimer v. Bureau of Police for Town of

Morristown, 958 F.2d 1242, 1250-51 (3d Cir. 1992) (second

alteration in original) (quoting Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). We

therefore consider whether a First Amendment right to gather

news exists, and if it does, whether Appellant enjoys its

protections.

A. The Right of Access is Limited

It is beyond peradventure that “[t]he constitutional

guarantee of a free press „assures the maintenance of our

political system and an open society,‟ and secures „the

paramount public interest in a free flow of information to the

people concerning public officials.‟” Pell v. Procunier, 417

U.S. 817, 832 (1974) (citation omitted); see also Pennekamp

v. Florida, 328 U.S. 331, 354-55 (1946) (Frankfurter, J.,

concurring) (“Without a free press there can be no free

safeguard the right of the news media to observe and report

on the election process in the Commonwealth of

Pennsylvania.” (Amicus Br. 1.)

11

society. Freedom of the press, however, is not an end in itself

but a means to the end of a free society.” (footnote omitted)).

For this reason, the Supreme Court has recognized that the

First Amendment — in addition to protecting freedom of

speech and the press — must also contain protections for

some news-gathering activity. See, e.g., Branzburg v. Hayes,

408 U.S. 665, 681 (1972) (“[W]ithout some protection for

seeking out the news, freedom of the press could be

eviscerated.”).

Yet, the Supreme Court has held, time and again, that

this First Amendment right of access to information is

qualified and subject to limitations. In Zemel v. Rusk, the

Supreme Court held that “[t]he right to speak and publish

does not carry with it the unrestrained right to gather

information.” 381 U.S. 1, 17 (1965). Going further, the

Court cautioned that:

[t]here are few restrictions on action which

could not be clothed by ingenious argument in

the garb of decreased data flow. For example,

the prohibition of unauthorized entry into the

White House diminishes the citizen‟s

opportunities to gather information he might

find relevant to his opinion of the way the

country is being run, but that does not make

entry into the White House a First Amendment

right.

Id. at 16-17; see also Branzburg, 408 U.S. at 684 (“It has

generally been held that the First Amendment does not

guarantee the press a constitutional right of special access to

information not available to the public generally.”); Pell, 417

U.S. at 834 (“The First and Fourteenth Amendments bar

12

government from interfering in any way with a free press.

The Constitution does not, however, require government to

accord the press special access to information not shared by

members of the public generally.”).

Appellants are therefore correct in arguing that the

First Amendment encompasses a right of access for news-

gathering purposes. However, we decline to hold — as

Appellant and the amicus curiae hope — that the press is

entitled to any greater protection under this right than is the

general public. The Supreme Court‟s pronouncement on this

issue is unequivocal: “[T]he First Amendment does not

guarantee the press a constitutional right of special access to

information not available to the public generally.”

Branzburg, 408 U.S. at 684. Thus, while the First

Amendment does protect Appellant‟s right of access to gather

news, that right does not extend to all information.

B. The Right of Access is Distinct from

the Right to Free Speech

Before proceeding further, we note that the word

“access” may cause some consternation.8 Much of First

8

The plurality opinion in Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555 (1980), recognized this potential

issue and noted that the name of the right was immaterial —

the distinction lay in what the right protected:

It is not crucial whether we describe this right to

attend criminal trials to hear, see, and

communicate observations concerning them as

a „right of access‟ or a „right to gather

information,‟ for we have recognized that

13

Amendment jurisprudence is couched in the language of

access. For example, when addressing traditional issues of

free speech on government property, courts apply the well-

established forum analysis (where the essential formulation is

whether the government may restrict “access” to a particular

forum). See Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 44-46 (1982) (discussing the

constitutional difference between restriction on access to

public and nonpublic fora in the language of a “right of access

to public property”).

Importantly, we do not address here limitations on

access to a forum for speech purposes; indeed, we are not

concerned here with expressive conduct or speech at all.

(Appellant conceded as much at the beginning of oral

argument.) Rather, our focus is on access to information.9

„without some protection for seeking out the

news, freedom of the press could be

eviscerated.‟

Id. at 576 (footnote omitted) (citations omitted) (quoting,

among others, Branzburg, 408 U.S. at 681).

9

Likewise, we do not address here the right to listen

— a concept analogous to, but still distinct from the right at

issue in this case. See Va. State Bd. of Pharm. v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748, 757 (1976); see also

Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965)

(Brennan, J., concurring) (“It would be a barren marketplace

of ideas that had only sellers and not buyers.”). The right to

listen is derivative of an individual‟s right to speak, for the

Supreme Court has held that “where a [willing] speaker

exists . . . the protection afforded is to the communication, to

14

Thus, we do not believe that the traditional forum analysis is

apposite here. If we were to apply such a framework, the

government would be free to shut down nonpublic fora

completely, thereby hiding any activities behind a veil of

secrecy.10 It cannot be that the First Amendment would

its source and to its recipients both.” Va. State Bd. of Pharm.,

425 U.S. at 756 (footnote omitted). Our own jurisprudence

likewise maintains that “where one enjoys a right to speak,

others hold a „reciprocal right to receive‟ that speech, which

„may be asserted‟ in court.” Pa. Family Inst., Inc. v. Black,

489 F.3d 156, 165-66 (3d Cir. 2007) (“In determining

standing, the right to listen depends entirely on the

infringement on the rights of a willing speaker.”).

Interestingly, while courts have sometimes cast the right to

listen in the mold of “the media‟s right to gather news,” see,

e.g., Daily Herald Co. v. Munro, 838 F.2d 380, 384 (9th Cir.

1988), that is merely a matter of semantics — those cases still

dealt with questions of speech and the forum analysis.

10

We take this opportunity to make explicit that which

has been implicit in our preceding discussion: A polling

place is a nonpublic forum. See Burson, 504 U.S. at 201-06

(plurality) (discussing the history of voting and the long-

evolving pattern of laws limiting expression in and access to

the polling place); id. at 216 (Scalia, J., concurring) (“It is

doctrinally less confusing to acknowledge that the environs of

a polling place, on election day, are simply not a „traditional

public forum‟ — which means that they are subject to speech

restrictions that are reasonable and viewpoint neutral.”);

Marlin v. D.C. Bd. of Elections & Ethics, 236 F.3d 716 (D.C.

Cir. 2001) (“The forum here, the interior of a polling place, is

neither a traditional public forum nor a government-

designated one. It is not available for general public

15

countenance such a course of action. See Smith v. Daily Mail

Publ’g Co., 443 U.S. 97, 104 (1979) (“A free press cannot be

made to rely solely upon the sufferance of government to

supply it with information.”).11

discourse of any sort.” (citing Burson, 504 U.S. at 201-06));

see also United Food & Commercial Workers Local 1099 v.

City of Sidney, 364 F.3d 738, 749-50 (6th Cir. 2004); Cotz v.

Mastroeni, 476 F. Supp. 2d 332, 364 (S.D.N.Y. 2007)

(“Polling places clearly are non-public fora and voters present

are subject to various First Amendment restrictions, including

those based on content.”). Despite Appellant‟s conclusory

statement in its Amended Complaint that “[a] polling place is

a traditional public forum under the First Amendment of the

United States Constitution,” (App. at 80a), the weight of

precedent holds that it is not. Moreover, Appellant can point

to no conduct on the part of the Commonwealth — neither in

its policy nor its practice — that would suggest an intent to

designate the polling place otherwise. Cornelius, 473 U.S. at

802 (O‟Connor, J.) (noting that “[t]he government does not

create a public forum by inaction or by permitting limited

discourse”).

11

As our discussion above should make clear: the right

of access is distinct from the right to free speech. Thus,

where the First Amendment does not protect a right of access

to a particular proceeding, this fact has no bearing on any

constitutional protections for expressive speech at the same

proceeding. For instance, even if we find no constitutional

protection for a right of access to the polling place, this would

not absolve courts from undertaking a traditional forum

analysis in determining whether an individual has the right to

speak inside of the polling place.

16

For this reason, we consider Appellant‟s citation to

cases such as Munro, which focused on exit-polling, to be of

little help. Daily Herald Co. v. Munro, 838 F.2d 380, 382

(9th Cir. 1988). The act of exit-polling has been held by our

sister circuits to constitute protected expressive speech. See,

e.g., id. at 384 (“The media plaintiffs‟ exit polling constitutes

speech protected by the First Amendment, not only in that the

information disseminated based on the polls is speech, but

also in that the process of obtaining the information requires a

discussion between pollster and voter.”). The analysis that

these courts apply to laws curtailing exit-polling activities —

i.e., the traditional forum analysis — is therefore distinct from

what is necessary here.

Appellant also urges that the instant case should be

evaluated under the rubric of a prior restraint. We disagree.

While it is true that restricting access to information may

work a prior restraint on speech, see In re Express-News

Corp., 695 F.2d 807, 810 (5th Cir. 1982); United States v.

Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978), this principle

is not unlimited. For

[i]t is one thing to say that a journalist is free to

seek out sources of information not available to

members of the general public, that he is

entitled to some constitutional protection of the

confidentiality of such sources, and that the

government cannot restrain the publication of

news emanating from such sources. It is quite

another thing to suggest that the Constitution

imposes upon government the affirmative duty

to make available to journalists sources of

information not available to members of the

public generally. This proposition finds no

17

support in the words of the Constitution or in

any decision of this Court.

Pell, 417 U.S. at 834-35 (1974) (citing, among others, N.Y.

Times Co. v. United States, 403 U.S. 713 (1971)). Thus, the

case at hand does not implicate the “kind of classic prior

restraint that requires exacting First Amendment scrutiny.”

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34 (1984);

see also United States v. Cianfrani, 573 F.2d 835, 861 (3d

Cir. 1978) (holding that there was “[n]o prior restraint . . .

involved” where the court imposed restrictions on

information adduced at a pre-trial suppression hearing).12

For this reason, we distinguish those cases cited by

Appellant that concern court orders prohibiting members of

the press (and others) from contacting jurors. See, e.g., In re

12

We do not come to this conclusion lightly. Systems

of prior restraint are rightly considered to be antithetical to

the Constitution and thereby come before the courts “bearing

a heavy presumption against [their] constitutional validity.”

N.Y. Times Co. v. United States, 403 U.S. at 714; see also

Mills v. Alabama, 384 U.S. 214, 219 (1966) (“It is difficult to

conceive of a more obvious and flagrant abridgement of the

constitutionally guaranteed freedom of the press [than a

restraint on the publication of editorials].”). But “[t]he phrase

„prior restraint‟ is not a self-wielding sword. Nor can it serve

as a talismanic test.” Kingsley Books, Inc. v. Brown, 354 U.S.

436, 441 (1957). We find that the instant case — where the

law concerns only access (not even subsequent use) to already

nonpublic information — does not necessarily implicate the

exacting constitutional scrutiny reserved for evaluating prior

restraints.

18

Express-News Corp., 695 F.2d 807; Sherman, 581 F.2d 1358.

Here, the government is not restricting access to information

per se; rather it is restricting access to a particular proceeding

(i.e., the voting process that occurs inside polling places).

Unlike the juror-interview cases, therefore, Appellant is free

to contact voters and individuals working in a polling place in

order to obtain information about the goings-on inside. There

is no blanket gag order curtailing access to this information.13

Instead, we find that the analysis in this case turns on

the question of whether the source of information (here,

access to the polling place) should be “available to members

of the public generally.” Thus, we must determine the proper

13

We have also defined the right of access as being

distinct from the right of publication (which, as explained

below, is a particular kind of prior restraint):

The obvious must also be stated. The

Coalition‟s claims are based on an alleged right

of access, not a right of publication. Although

both have their roots in the First Amendment,

these principles are doctrinally discrete, and

precedents in one area may not be

indiscriminately applied to the other. In

general, the right of publication is the broader

of the two, and in most instances, publication

may not be constitutionally prohibited even

though access to the particular information may

properly be denied.

First Amendment Coal. v. Judicial Inquiry and Review Bd.,

784 F.2d 467, 471-72 (3d Cir. 1986).

19

analytical framework for evaluating this question. As the

discussion below demonstrates, the matter here concerns

information about government bodies, their processes, and

their decisions. As such, our analysis of the public‟s right to

access the source of this information turns on both historical

and structural considerations. We must balance the interests

of the government on the one hand and those of the press and

public on the other.

C. The Right of Access in the Supreme Court: The

Experience and Logic Test

The Supreme Court has suggested that the existence of

a First Amendment right to gather news (i.e., the right of

access to the source of information or a government process)

is best evaluated via a balancing test. The necessity of such a

test was first noted in Branzburg v. Hayes, where a reporter

had claimed that testifying before a grand jury about

confidential sources would violate his right to gather news.

408 U.S. 665. A plurality of the Court acknowledged that,

“without some [First Amendment] protection for seeking out

the news, freedom of the press could be eviscerated.” Id. at

681. On the other hand, the plurality did not believe that this

protection for news-gathering extended endlessly. Id. at 681-

83 (“[The press] has no special immunity from the application

of general laws [and] no special privilege to invade the rights

and liberties of others.”). Thus, they affirmed the principle

that the press is not guaranteed a “constitutional right of

special access to information not available to the public

generally.” Id. at 684 (citing, inter alia, Zemel, 381 U.S. at

16-17, and N.Y. Times Co. v. United States, 403 U.S. at 728-

30 (Stewart, J., concurring)).

20

Having set the operative framework, the plurality then

engaged in a balancing inquiry to determine which set of

rights should prevail. In his concurrence, Justice Powell

summarized the sentiment of the plurality and his own

position: “The asserted claim to privilege should be judged

on its facts by the striking of a proper balance between

freedom of the press and the obligation of all citizens to give

relevant testimony with respect to criminal conduct.” Id. at

710. He added that “[t]he balance of these vital constitutional

and societal interests on a case-by-case basis accords with the

tried and traditional way of adjudicating such questions.” Id.

Subsequently, the Court embarked on a similar

balancing inquiry to uphold a California Department of

Corrections regulation that prohibited the press and others

from interviewing specific inmates. See Pell, 417 U.S. at

831-32. Prior to the enactment of the regulation in question,

journalists “had virtually free access to interview any

individual inmate” while non-press members of the public did

not benefit from such an unrestricted visitation policy. Id. at

831. Journalists claimed that the new regulation, by limiting

their news gathering activities, violated the First Amendment

protections for freedom of the press. Id. at 820-21. Holding

that the press does not enjoy any greater constitutional

protection than does the general public, the Court ultimately

agreed with the prison administrators that the interest in

preserving security in the prisons outweighed the press‟s right

to gather news, partly based on the fact that the press had an

alternative means of obtaining this information. Id. at 829-

34.

But while the opinions in Branzburg and Pell

presented an ad hoc approach, the case of Richmond

Newspapers, Inc. v. Virginia suggested a more standardized

21

framework for evaluating the right of access to information

about government processes. 448 U.S. 555 (1980) (plurality).

In that case, reporters sought access to a courtroom that had

been closed to the public to prevent undue dissemination of

witness-related information, arguing that there were less

restrictive means for ensuring a fair trial. The plurality

reaffirmed the First Amendment‟s protection of the press and

recognized that the First Amendment necessarily also

“„prohibit[ed] government from limiting the stock of

information from which members of the public may draw.‟”

Id. at 575-76 (quoting First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765, 783 (1978)). Finding that access to trials could

not be “foreclosed arbitrarily,” the Richmond Newspapers

opinion suggested the framework for a more meaningful test

on restrictions in nonpublic fora such as a courtroom. Id. at

577.

The plurality acknowledged that courtrooms were

nonpublic fora, but recognized the important role of their

historical openness to the public — namely, that the public

provides the oversight necessary to maintain the integrity of

the judicial process. Id. at 573 n.9. As for the prison cases

(e.g., Pell), the plurality distinguished them on the ground

that trials were traditionally open to the public whereas

prisons were not. Id. at 576 n.11. In addition to this

historical tradition of openness, the plurality also noted that

the presence of the public and its representatives “historically

has been thought to enhance the integrity and quality of what

takes place” in the courtroom. Id. at 578.

Justice Brennan, writing in a concurrence, summarized

“two helpful principles” drawn from the plurality‟s opinion:

22

First, the case for a right of access has special

force when drawn from an enduring and vital

tradition of public entree to particular

proceedings or information. Such a tradition

commands respect in part because the

Constitution carries the gloss of history. More

importantly, a tradition of accessibility implies

the favorable judgment of experience. Second,

the value of access must be measured in

specifics. Analysis is not advanced by

rhetorical statements that all information bears

upon public issues; what is crucial in individual

cases is whether access to a particular

government process is important in terms of

that very process.

Id. at 589 (citation omitted) (Brennan, J., concurring). This

distillation — effectively juxtaposing the People‟s historical

practice of and interest in monitoring government with the

State‟s historical practice of and interest in keeping certain

information from public view — formed the basis for what

has become the Court‟s balancing test for evaluating whether

a right of access to government information exists.

Indeed, the Court embraced this framework in a

subsequent right of access case, Globe Newspaper Co. v.

Superior Court for Norfolk County, 457 U.S. 596 (1982),

where the press sought access to a criminal trial involving the

sexual abuse of underage victims. Writing for the majority,

Justice Brennan explained why a right of access attached to

criminal trials:

First, the criminal trial historically has been

open to the press and general public. . . . And

23

since that time the presumption of openness has

remained secure. . . . Second, the right of access

to criminal trials plays a particularly significant

role in the functioning of the judicial process

and the government as a whole. . . . In sum, the

institutional value of the open criminal trial is

recognized in both logic and experience.

Id. at 605-06 (emphasis added). Finding that both factors

weighed heavily in favor of openness, the Court in Globe held

that the press had a qualified right of access because the right

to access criminal trials is “of constitutional stature.” Id. at

606. Consequently, the Court held that the government could

restrict access to criminal trials only if the restriction was

necessitated “by a compelling governmental interest, and

[was] narrowly tailored to serve that interest.” Id. at 606-07.

Arguably the most complete statement of the Court‟s

balancing test came in Press-Enterprise Co. v. Superior Court

of California for Riverside County, 478 U.S. 1 (1986), in

which the Supreme Court considered the right of access to

preliminary hearings in criminal trials. The Court held that a

right of First Amendment access requires a two-prong

evaluation of “whether the place and process have historically

been open to the press” and “whether public access plays a

significant positive role in the functioning of the particular

process in question.” Id. at 8. Where both prongs of the test

are satisfied, “a qualified First Amendment right of public

access attaches.” Id. at 9.

These three cases — Richmond Newspapers, Globe,

and Press-Enterprise — set out a balancing test for evaluating

whether a right of access to information about government

bodies, their processes, and their decision exists. This

24

framework, referred to either as the Richmond Newspapers

test or the “experience and logic” test, balances the interests

of the People in observing and monitoring the functions of

their government against the government‟s interest and/or

long-standing historical practice of keeping certain

information from public scrutiny. If a right of access exists,

any restraint on that right is then evaluated under strict

scrutiny. See Globe, 457 U.S. 606-07.

Our Circuit has also applied the Richmond Newspapers

balancing test in various contexts. While the Supreme Court

decisions discussed above largely cabin the test‟s application

to situations addressing criminal proceedings, our own

jurisprudence demonstrates a willingness to apply the test

more broadly. Still, we have never applied Richmond

Newspapers to a polling place or to the process of voting. As

such, it is a matter of first impression. Thus, our focus is on

the appropriate scope and application of the test. We look to

our prior decisions for guidance.

D. The Experience and Logic Test in the Third Circuit

In Publicker Industries, Inc. v. Cohen, 733 F.2d 1059

(3d Cir. 1984), we expanded the application of Richmond

Newspapers to civil trials. We reasoned that “[t]he Supreme

Court‟s recognition of a First Amendment right of access to

criminal trials is predicated on „the common understanding

that a major purpose of that Amendment was to protect the

free discussion of governmental affairs,‟” and that, in civil

trials, too, the “public right of access . . . is inherent in the

nature of our democratic form of government.” Id. at 1068-

69 (emphasis added) (quoting Globe, 457 U.S. at 604).

25

Two years later, in First Amendment Coalition v.

Judicial Inquiry and Review Board, 784 F.2d 467 (3d Cir.

1986), we considered a right of access claim to records of

Pennsylvania‟s Judicial Inquiry and Review Board.

Assuming that a right of access did exist, we considered the

point at which this right attached under Richmond

Newspapers. See id. at 472; see also North Jersey Media

Group, Inc. v. Ashcroft, 308 F.3d 198, 208 (3d Cir. 2002)

(reading First Amendment Coalition as applying the

“experience and logic” test). While we ultimately noted that

Board proceedings did not “have a long history of openness,”

the case illustrates our willingness to expand the application

of the Richmond Newspapers framework beyond litigation

proceedings. First Amendment Coal., 784 F.2d at 472; see

also id. at 481 (Adams, J., concurring in part and dissenting in

part) (arguing that “[t]he correct legal analysis here flows in

large measure from the historical record” and the standards

set forth in Globe and Press-Enterprise).14

Capital Cities Media, Inc. v. Chester, 797 F.2d 1164

(3d Cir. 1986) (en banc), decided the same year as First

Amendment Coalition, stands as a watershed case. That

14

We have also extended the “experience and logic”

analysis to other portions of the criminal trial process. See,

e.g., United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir.

1985) (determining, by “employing the historical and

structural analysis mandated by [Richmond Newspapers,

Globe and Press-Enterprise], whether there is a First

Amendment right of access to indictments. Although those

cases concerned access to judicial proceedings, no reason

occurs to us why their analysis does not apply as well to

judicial documents . . . ”).

26

proceeding concerned a claimed right of access to certain

administrative records held by the Pennsylvania Department

of Environmental Resources (“D.E.R.”). We concluded that

Richmond Newspapers, Globe and Press-Enterprise “hold no

more than that the government may not close government

proceedings which historically have been open” except where

“public access contributes nothing of significant value to that

process or [where] there is a compelling state interest in

closure and a carefully tailored resolution of the conflict

between that interest and First Amendment concerns.” Id. at

1173. In effect, we held that the three cases do no more than

set forth the generalized “experience and logic” test for

evaluating the right of access to traditionally open

government proceedings. Id. at 1174-76.

Moreover, in evaluating the existence of the right to

access D.E.R. files, we were cognizant of the fact that the

Supreme Court had not yet applied the “experience and logic”

test “to the context of executive branch files.” Id. at 1174.

Nevertheless, we assumed, without deciding, that the test

applied to such information and proceeded with our

evaluation. Id. at 1174-75; see also id. at 1177-78 (Adams, J.,

concurring). Capital Cities therefore stands as the broadest

suggested application of the “experience and logic” test,

arguing that it can be applied beyond the limited context of

criminal and civil trials to cover a greater expanse of

information related to government bodies, their processes,

and decisions.15

15

We recognize the very real concerns our colleagues

raised in their dissent from Capital Cities:

27

Our willingness to apply the “experience and logic”

test beyond judicial proceedings was once again evidenced in

Whiteland Woods, L.P. v. Township of West Whiteland, 193

F.3d 177 (3d Cir. 1999). In that case, we considered whether

a private enterprise, rather than a newspaper, had a First

Amendment right to videotape “a meeting of the Township

Planning Commission.” Id. at 178. In dicta, and relying on

Globe, we reasoned that “[b]ecause a „major purpose of the

First Amendment was to protect the free discussion of

governmental affairs,‟ the public and press have the right to

attend certain types of governmental proceedings.” Id. at 180

(citation omitted) (quoting Globe, 457 U.S. at 604).

Consequently, we felt “no hesitation in holding Whiteland

Woods had a constitutional right of access to the Planning

Commission,” explaining that “[w]hether the public has a

First Amendment right of access to a particular government

The question . . . is whether government may,

consistent with the speech-press clause, without

offering any justification whatever for doing so,

impose the ultimate prior restraint of imposed

ignorance about its affairs simply by refusing

access to information in the possession of

public officials. The majority holds that it may.

The governing case law quite plainly is

otherwise.

Capital Cities, 797 F.2d at 1186-87 (Gibbons, J., et al.,

dissenting). Here, we expressly do not reach the issue of

whether — even in light of Capital Cities — the “experience

and logic” test is appropriately applied to cases addressing

access to legislative or executive records. That case is for

another day.

28

proceeding depends on” the outcome of the experience and

logic test. Id. at 180-81 (citing Capital Cities, 797 F.2d at

1174); see also North Jersey, 308 F.3d at 214 (noting that the

right of access discussion in Whiteland is dicta).

All of the decisions discussed above informed our

analysis in North Jersey Media Group, Inc. v. Ashcroft, a case

in which we focused on the media‟s right of access to

deportation proceedings. 308 F.3d 199. In defending its

restriction, the government argued that “the absence of an

explicit guarantee of access for Article I and II

proceedings . . . gives rise to a distinction with a difference

because, without an incorporating provision parallel to the

Sixth Amendment, the Framers must have intended to deny

the public access to political proceedings.” North Jersey, 308

F.3d at 207. “Our own jurisprudence preclude[d] this” result,

id. at 207, and we held that “experience and logic” “is a test

broadly applicable to issues of access to government

proceedings, including removal,” id. at 208-09 (emphasis

added).16

16

As it relates to our ruling in North Jersey, it bears

repeating that the existence or non-existence of a Sixth

Amendment-like provision relating to a particular

government proceeding is not necessary for the satisfaction of

the “experience and logic” test. Thus, in North Jersey, we

noted that “[t]here is no suggestion [in Richmond

Newspapers] that the Sixth Amendment is crucial to the right

of access; indeed, this passage merely states that the Framers

assumed a common and established practice.” North Jersey,

308 F.3d at 208.

29

E. The Experience and Logic Test is Applicable to

Polling Places

Considering the full sweep of our jurisprudence, we

now hold that the experience and logic test articulated in

Richmond Newspapers is applicable to the voting process.

Indeed, an extension of the “experience and logic” test to the

polling place is in line with the general trend of our decisional

authority: that access to government proceedings — in effect,

access to information about governmental bodies and their

actions or decisions — must be evaluated with an eye toward

the historical and structural role of the proceeding. North

Jersey and Whiteland are particularly instructive in this

regard.

In North Jersey, we held that the “experience and

logic” test applies to government proceedings under Articles I

and II of the Constitution. Such proceedings include, among

other things, the process of voting. While it does not set forth

the exact nature of the proceeding, Article I of the

Constitution states that “[t]he Times, Places and Manner of

holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Senators.” U.S.

Const. art. I, § 4, cl. 1. Moreover, Article II declares that

“[e]ach State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors, equal to the whole

Number of Senators and Representatives to which the State

may be entitled in the Congress.” U.S. Const. art. II, § 1, cl.

2. This latter constitutional mandate grants “plenary power to

the state legislatures in the matter of the appointment of

electors,” McPherson v. Blacker, 146 U.S. 1, 35 (1892),

30

thereby ensuring that the voting process is, in no uncertain

terms, a governmental process and procedure.17

These mandates to the states are likewise insufficient

to escape the searching eye of the “experience and logic” test,

for, in Whiteland, we applied the test to state-level

proceedings (albeit in dicta). See also First Amendment

Coalition, 784 F.2d at 472 (applying the test to a state judicial

discipline board).

Moreover, we believe that this reading of our prior

decisions fully satisfies — and, in fact, exemplifies — the

balancing inquiry first articulated by Justice Powell in his

concurrence in Branzburg. There is an internal logic to this

test: Where both historical and structural considerations

militate against a presumption of openness, the press and

public enjoy no constitutionally protected right of access. In

such cases, the words of Justice Stewart ring true: The press

and public “must rely, as so often in our system we must, on

the tug and pull of the political forces in American society.”

Capital Cities, 797 F.2d at 1173 (quoting Potter Stewart, Or

of the Press, 26 Hastings L.J. 631, 636 (1975)).

On the other hand, where history and structure point to

a presumption of openness, a qualified First Amendment right

attaches, and the government‟s attempts to cut off access to

information is subjected to exacting constitutional scrutiny.

17

What is more: The process occurring within a

polling place, as within a courtroom or a legislative meeting,

is created, circumscribed, directed, and controlled by the

government. See U.S. Const. art. I, § 4, cl. 1.

31

See, e.g., Globe, 457 U.S. at 606-07; North Jersey, 308 F.3d

at 217 n.13.

Thus, by engaging in the “experience and logic”

inquiry, we preserve the interests of the government to keep

private that which always has been and should be private,

while recognizing the right of the press and the general public

to enter and access traditionally open nonpublic fora and

other sources of information about government bodies and

their actions or decisions. Where a tradition of openness is

found, the test ensures that the government cannot cut off

access without subjecting itself to exacting constitutional

scrutiny. By applying the experience and logic test, we

ensure that the government cannot shroud its activities behind

a veil of secrecy merely by banning everyone from a

nonpublic forum. To hold otherwise would be to invite

inequitable results, and create the possibility of government

behavior that frustrates the “„paramount public interest in a

free flow of information to the people concerning public

officials.‟” Pell, 417 U.S. at 832 (quoting Garrison v.

Louisiana, 379 U.S. 64, 77 (1964)).

F. Applying the Experience and Logic Test to the

Instant Case

Having determined that the “experience and logic” test

applies to the voting process, we must now determine

whether polling places are presumptively open and whether,

as a result, the Appellant — as well as the general public — is

presumptively entitled to a right of access pursuant to the

First Amendment.

1. The “Experience” Prong

32

The framework articulated in Richmond Newspapers

asks us to consider whether a “„place and process have

historically been open to the press and general public.‟”

North Jersey, 308 F.3d at 209 (quoting Press-Enterprise, 478

U.S. at 8). This analysis begins with a review of historical

practices associated with a particular place or process; this

inquiry is objective. See Capital Cities, 797 F.2d at 1175.

Thus, for example, in Capital Cities we held that “the

relevant historic[al] practice in this case is not specifically

that of Pennsylvania‟s [D.E.R.]” Id. Instead, after

considering Richmond Newspapers, Globe and Press-

Enterprise, we held that “[i]n each of these cases, the Court

looked not to the practice of the specific public institution

involved, but rather to whether the particular type of

government proceeding had historically been open in our free

society.” Id. (emphasis added).

To meet this objective standard, the Supreme Court

and the Third Circuit have drawn on a plethora of historical

sources, including comments made by the Framers, practice

at the English court of law, congressional procedures,

relevant regulatory schemes, and court decisions. See, e.g.,

Richmond Newspapers, 448 U.S. at 564-73; Publicker, 733

F.2d at 1068-70; North Jersey, 308 F.3d at 211-15. This

wide-ranging inquiry into historical practice is not incidental;

the “experience” prong sets a relatively high bar, a point we

recognized in North Jersey, when we compared the tradition

of open deportation proceedings to the traditions of openness

discussed in Richmond Newspapers (for criminal trials) and

Publicker (for civil trials), and held that “deportation hearings

[do not] boast a tradition of openness sufficient to satisfy

Richmond Newspapers.” North Jersey, 308 F.3d at 212-13;

cf. Richmond Newspapers, 448 U.S. at 573 n.9 (failing to find

33

“„a single instance of a criminal trial conducted in camera in

any federal, state, or municipal court during the history of this

country‟” (quoting In re Oliver, 333 U.S. 257, 266 (1948));

Publicker, 733 F.2d at 1059 (noting that a common law right

to access civil trials was “beyond dispute”).

In contrast to the criminal and civil trial settings, we

noted that the “tradition of open deportation hearings is too

recent and inconsistent to support a First Amendment right of

access.” North Jersey, 308 F.3d at 211. And while we

acknowledged that “a showing of openness at common law is

not required” and that “a 1000-year history is unnecessary,”

we were quick to note our inability to dispense with the

“experience” analysis “where history is ambiguous or

lacking, [or] to recognize a First Amendment right based

solely on the „logic‟ inquiry.” Id. at 213.18

18

During our discussion in North Jersey, we

acknowledged that one of our cases — United States v.

Simone, 14 F.3d 833 (3d Cir. 1994) — applied the

“experience and logic” test without the benefit of a well-

established tradition of historical openness. 308 F.3d at 213-

14. The Simone case centered on a claimed right of access to

post-trial examinations of jury misconduct. 14 F.3d 833. In

analyzing the “experience” prong of the Richmond

Newspapers framework, we noted that “[n]either the parties

nor this court have been able to find cases dating before 1980

in support of either openness or closure for this type of post-

trial proceeding.” Simone, 14 F.3d at 838. While we

explicitly stated in Simone that our analysis would “rely

primarily on the „logic‟ prong of the test,” we acknowledged

that the experience prong was fulfilled by looking to “other

phases of the criminal process.” Id.; see also North Jersey,

34

In the case before us, Appellant seeks access to the

polling place.19 We therefore look to see whether a tradition

of openness exists for the polling place and the process of

voting occurring inside. 20 Our inquiry includes not just the

308 F.3d at 214 (acknowledging the peculiar nature of

Simone).

19

We reject the argument, proffered by Appellant‟s

counsel, that a right of access to polling places exists because

information about voters is publicly available. The access

Appellant seeks is not to this information; it is to the actual

process occurring within the polling place prior to casting a

vote. This crucial distinction also ensures that our decision

does not pertain to activities such as exit-polling.

20

Ordinarily, our case law dictates that the complaint

must allege this tradition of openness. See Capital Cities, 797

F.2d at 1175. In the current matter, we recognize that

Appellant has not directly engaged with the “experience and

logic” standard and therefore the complaint is relatively

devoid of any such allegations. (As our earlier discussion

explains, allegations as to the practices surrounding the

specific government agency, process or law at issue are not

pertinent.) However, we believe it is unnecessary to remand

the case back to the District Court to give Appellant an

opportunity to amend its pleadings. As the forthcoming

analysis will demonstrate, the Supreme Court‟s review of

elections in America presents a well-rounded picture of how

restrictions around polling places developed. We therefore

think it would be futile for Appellant to try to amend its

pleadings.

35

act of voting, but also the act of entering the polling place and

signing in to vote.

In light of our reasoning that the “experience” inquiry

is objective, we begin our analysis with the general voting

process. At this level of generality, the Supreme Court‟s

plurality opinion in Burson is highly instructive. The facts

and legal conclusions of the decision are immaterial for our

present purposes; we are instead interested in the plurality‟s

thorough exegesis on the history of voting in America. See

Burson, 504 U.S. at 200-06. While a full recapitulation is

unnecessary, it behooves us to engage in a brief discussion.

In the colonial era, voting was conducted by voice vote

— a process freely accessible to the entire public. Id. at 200

(“That voting scheme was not a private affair, but an open,

public decision, witnessed by all and improperly influenced

by some.”). As time went on, and the perils of public voice-

based voting became apparent, the newly-formed states

adopted systems based on the paper ballot. Id. Voters would

craft their own ballots at home and then bring them to the

polls. Id. However, the trip between the home and the poll

was not a private or protected affair, and the old evils of

voice-based voting resurfaced in the form of pre-printed

ballots, bribery, and intimidation. Id. at 200-01 (“State

attempts to standardize the ballots were easily thwarted — the

vote buyer could simply place a ballot in the hands of the

bribed voter and watch until he placed it in the polling box.”).

Under the original ballot-based system, “[a]pproaching the

polling place . . . was akin to entering an open auction place.

As the elector started his journey to the polls, he was met by

various party ticket peddlers „who were only too anxious to

supply him with their party tickets.‟” Id. at 202 (quoting

36

Eldon Cobb Evans, A History of the Australian Ballot System

in the United States 9 (1917)).

In the late 1800s, states began adopting “the Australian

system” of voting. Id. at 203. The new system not only

placed all of the candidates on a single ballot, but it also

“provided for the erection of polling booths . . . open only to

election officials, two „scrutinees‟ for each candidate, and

electors about to vote.” Id. at 202. The state laws differed

mainly in the size of the exclusionary zone that they created

around the polls. Id. (“The Massachusetts and New York

laws differed somewhat from the previous Acts in that they

excluded the general public only from the area encompassed

within a guardrail constructed six feet from the voting

compartments.”).21 “By 1896, almost 90 percent of the States

had adopted the Australian system. This accounted for 92

percent of the national electorate.” Id. at 204-05.

In his concurrence, Justice Scalia added that “[b]y

1900, at least 34 of the 45 States . . . had enacted such

restrictions,” and that “most of the statutes banning election-

day speech near the polling place specified the same

distance”: 100 feet. Id. at 214-15 & n.1 (Scalia, J.,

concurring) (collecting statutes).

21

The court noted that “[t]his modification was

considered an improvement because it provided additional

monitoring by members of the general public and

independent candidates, who in most States were not allowed

to be represented by separate inspectors.” Burson, 504 U.S.

at 203-04.

37

Now, returning our focus to Pennsylvania, we note that

the Pennsylvania Constitution mandates that “[a]ll elections

by the citizens shall be by ballot or by such other method as

may be prescribed by law: Provided, That secrecy in voting

be preserved.” Pa. Const. art. 7, § 4 (emphasis added).

Moreover, the provisions in § 3060 limiting access to the

polling place were adopted 75 years ago. See Act of June 3,

1937, P.L. 1333, No. 320, Art. XVIII, § 1220. While we do

not look specifically at whether a tradition of openness exists

in Pennsylvania, we do find it relevant that Pennsylvania laws

and provisions are in line with the historical development

discussed by the Supreme Court above.

In light of the foregoing discussion — and our earlier

directive that the tradition of openness must be objectively

and clearly established — we find that the historical record is

insufficient to establish a presumption of openness in the

context of the voting process itself. While the act of voting

— and the process by which voting was carried out — began

its life as a public affair, our Nation‟s history demonstrates a

decided and long-standing trend away from openness, toward

a closed electoral process.

2. The “Logic” Prong

The Richmond Newspapers framework also tasks us

with considering “whether public access plays a significant

positive role in the functioning of the particular process in

question.” North Jersey, 308 F.3d at 209 (quoting Press-

Enterprise, 478 U.S. at 8). We have adopted six broad

“values” that are typically served by openness:

[1] promotion of informed discussion of

governmental affairs by providing the public

38

with the more complete understanding of the

[proceeding]; [2] promotion of the public

perception of fairness which can be achieved

only by permitting full public view of the

proceedings; [3] providing a significant

community therapeutic value as an outlet for

community concern, hostility and emotion; [4]

serving as a check on corrupt practices by

exposing the [proceeding] to public scrutiny; [5]

enhancement of the performance of all

involved; and [6] discouragement of [fraud].

United States v. Simone, 14 F.3d 833, 839 (3d Cir. 1994). Of

course, these are general categories and the list is by no

means exhaustive or mandatory. For the logic prong to be

satisfied, it need not be shown that the government process or

the general public will benefit in all six ways from press and

public access.

In addition to considering the benefits that would

result from press and public access, we must “take account of

the flip side — the extent to which openness impairs the

public good.” North Jersey, 308 F.3d at 217. Indeed, the

logic analysis must account for the negative effects of

openness, for otherwise “it is difficult to conceive of a

government proceeding to which the public would not have a

First Amendment right of access.” Id. (“[P]ublic access to

any government affair, even internal CIA deliberations,

would „promote informed discussion‟ among the citizenry. It

is unlikely the Supreme Court intended this result.”). And

while the consideration of potentially detrimental effects is

speculative, we have held that “the Richmond Newspapers

logic prong is unavoidably speculative.” Id. at 219.

39

Finally, we note that a necessary corollary to the

“experience” prong being an objective inquiry is that the

“logic” prong is likewise an objective inquiry. To hold

otherwise would lead to untenable consequences: First

Amendment rights of access would not only vary from venue

to venue, but they would be subject to a kind of arbitrary

examination that is anathema to our system of defined

constitutional rights.

In the case before us, we begin by noting the rather

obvious fact that openness of the voting process helps prevent

election fraud, voter intimidation, and various other kinds of

electoral evils. “[S]unlight,” as has so often been observed,

“is the most powerful of all disinfectants.” N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 305 (1964). Of course, in situations

where the press is not geographically far removed from the

proceedings anyway, the benefits of additional oversight are

inversely proportional to the distance of the press. The

situation in Pennsylvania is a fine example: The press (like

the general public) is only 10 feet away from the polling

place, and we have no tangible or discernible evidence of how

the public good would benefit so much more from the press

being inside the room, rather than several paces away.22

22

At oral argument it became apparent that the press

could simply stand at the 10-foot mark, point their cameras

inside the polling place — which we note again is just the

room designated for voting — and begin to record the

activity. Counsel for Appellee conceded that this would be

permissible, and counsel for Appellant had no satisfactory

response as to how or why this procedure would not serve the

Appellant‟s interest.

40

Appellant argues that access to the polling place was

particularly necessary during this past election because of the

Voter ID Law. More specifically, Appellant argues that the

Voter ID Law — part of which was suspended for purposes

of the November 6, 2012 election — may have caused voter

confusion as to whether identification is required in order to

cast a vote. As a result, Appellant argues that it was of the

utmost importance for reporters to observe and record the

goings on at the sign-in table during this election. We agree

that openness in a situation where new legislation is being

implemented or tested would generally serve the public good.

It implicates several of the broad categories recognized in

Simone, including the “promotion of informed discussion of

governmental affairs by providing the public with [a] more

complete understanding of the [proceeding].” Simone, 14

F.3d at 839. We therefore consider this as a factor weighing

in favor of satisfying the “logic” prong.23

The experience and logic test requires that we also

examine the potential dangers inherent in openness. Of

greatest concern to us is that access for one is access for all.

While Appellant urges that its reporters should be permitted

to access the polling place for purposes of gathering news,

there is no constitutionally valid way of limiting the right of

access only to Appellant. Finding a right of access for one

23

The weight we accord to this fact in our inquiry

under the logic prong would be different if the Voter ID Law

actually had been implemented; indeed, our entire analysis of

the “experience and logic” test could be different. However,

that case is not before us, and we decline to speculate

regarding its effect. As both parties concede, November 6,

2012 represented only a “soft test” of its implementation.

41

member of the press necessarily means that all other members

of the press must or should share in that right.

This brings us to the next concern, raised at oral

argument: Who is a member of the press? Even if we were

inclined to find a special First Amendment right for the press

in this case (which we explicitly refuse to do), the class of

persons to whom such a right is applicable is almost

boundless. Counsel for Appellant could not divine a way to

confine the potential beneficiaries of a ruling in its favor.24

Moreover, there is a very real possibility that the

presence of reporters during the sign-in period, when

individuals are necessarily exchanging personal information

in preparation for casting a private vote, could concern,

intimidate or even turn away potential voters.

24

More recently, membership in the Fourth Estate has

been democratized. Access to blogs, smartphones, and an

extensive network of social media sites (not the least of which

are Twitter and Facebook) have transformed all of us into

potential members of the media. While in almost any other

situation this would be a boon to a free and democratic

society, in the context of the voting process, the confusion

and chaos that would result from a potentially limitless

number of reporters in a polling place would work the

opposite effect, potentially creating confusion, frustration,

and delay. This is to say nothing of our earlier holding that

the rights of access for the press and public are co-extensive.

In this situation, anyone could record in the polling place if

the First Amendment protected the right of access thereto.

42

On balance then, we find the “logic” prong of this

inquiry disfavors finding a constitutionally protected right of

access to the voting process. We therefore find that both

prongs of the “experience and logic” test militate against

finding a right of access in this case. As in North Jersey, we

note that while the Constitution does not provide protection

under the First Amendment, “there is, as always, the powerful

check of political accountability.” North Jersey, 308 F.3d at

220.

G. Beacon Journal is Unpersuasive

Despite clear indications by the Supreme Court and

this Circuit that the experience and logic test is the

appropriate analytical framework for the instant dispute,

Appellant urges us to follow the Sixth Circuit‟s conclusion in

Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d

683 (6th Cir. 2004), a decision whose reasoning is ambiguous

at best. We decline to do so.

The Beacon Journal court analyzed the

constitutionality of an Ohio statute similar to Pennsylvania‟s

§ 3060(d) as applied to members of the media. Like §

3060(d), the Ohio law mandated that “[n]o person, not an

election official, employee, witness, challenger, or police

officer, shall be allowed to enter the polling place during the

election, except for the purpose of voting.” Id. at 684

(quoting Ohio Rev. Code Ann. § 3501.35 (2002)). The

Beacon Journal Publishing Company (which published the

Beacon Journal newspaper) moved for injunctive relief,

arguing that the law “abridg[ed its] First Amendment rights.”

Id. The Sixth Circuit, without fully setting out the basis for

its decision, applied strict scrutiny and held that the

government had made no showing that the law was

43

“necessary to further the state‟s [interest in ensuring orderly

elections] and „narrowly drawn to achieve that end.‟” Id. at

685 (quoting Perry, 460 U.S. at 45). It therefore concluded

that the Ohio law likely abridged the freedom of the press,

and ordered that the injunction be granted and that the state

“immediately and forthwith permit [Beacon Journal] to have

reasonable access to any polling place for the purpose of

news-gathering and reporting so long as [Beacon Journal

does] not interfere with poll workers and voters as voters

exercise their right to vote.” Id.

Beacon Journal‟s citation to Perry for the strict

scrutiny standard is telling (and troubling). The Perry case,

which concerned a law regulating expressive activity in a

public school, formulated its analysis this way: “The

existence of a right of access to public property and the

standard by which limitations upon such a right must be

evaluated differ depending on the character of the property at

issue.” Perry, 460 U.S. at 44 (emphasis added). As we have

explained above, the “right of access” at issue in Perry

concerned access to a forum for speech purposes. The right

at issue in this case (and in Beacon Journal) is different — it

concerns the right of access to a government proceeding for

news-gathering purposes.

Moreover, in applying a forum analysis, the Sixth

Circuit apparently took the polling place to be a public forum.

This is incorrect and stands adverse to both Supreme Court

precedent and our precedent. As we have just held: a polling

place is a nonpublic forum, requiring the government to

satisfy only a reasonableness analysis. Therein lies our

discord with the Beacon Journal ruling. As our foregoing

discussion demonstrates, adopting a traditional forum analysis

for cases such as the one at bar sets a dangerous precedent

44

which permits the government too much freedom to hide their

activities from the public‟s view. We cannot accept this

result. Beacon Journal is a precedent we cannot follow.25

As there is no protected First Amendment right of

access to a polling place for news-gathering purposes, we find

that Appellant has failed to state a claim and affirm the

District Court‟s dismissal of Count I.

IV. Equal Protection

Appellant also alleges that the Commonwealth‟s

application of § 3060(d), forbidding it from entering polling

places in Allegheny and Beaver Counties, violates the Equal

Protection Clause. Appellant asserts that the Boards of

Elections in Pennsylvania counties other than Allegheny and

Beaver counties permit reporters to enter the polling place

and take photographs or otherwise record the proceedings.

Appellant supports its claim by pointing to a host of

photographs taken by other Pennsylvania newspapers inside

polling places. Additionally, Appellant claims that officials

in Allegheny County have on previous occasions permitted

the media (presumably including Appellant‟s own reporters)

25

We note also that in rejecting Beacon Journal we are

not disagreeing with any of our other sister circuits. The

Beacon Journal decision seems to stand alone, even within

the Sixth Circuit. Indeed, in the eight years since the decision

(a span of time which covered four national elections), only

one court in the entire country has cited Beacon Journal for

its holding regarding the right of access: the District Court

opinion in this case. PG Publ’g Co., 2012 WL 4796017, at

*25.

45

entry into the polling place to photograph “certain public

figures” during the voting process. On the basis of these

allegations, Appellant urges that it was and is being

discriminated against in violation of the Equal Protection

Clause.

Appellee does not dispute that § 3060(d) is selectively

enforced across the Commonwealth. Indeed, Appellee

conceded as much during oral argument. Instead, Appellee

argues that the alleged selective enforcement of § 3060(d)

cannot sustain an equal protection claim and that any

disparate enforcement comes from the structure of the

Commonwealth‟s electoral process. That is, Appellee asserts

that each Board of Elections operates in complete autonomy,

and therefore, the decisions of one cannot be compared to the

decisions of the others.26

For the reasons discussed below, we agree with

Appellee that the selective enforcement of § 3060(d) does not

give rise to a claim under the Equal Protection Clause.

Consequently, we hold that the District Court rightfully

dismissed Appellant‟s claim.

26

By contrast, Appellant alleges that the “the

Commonwealth, through its political subdivisions,” violated

the Equal Protection Clause. As a necessary consequence,

Appellant argues that every instance of enforcement or non-

enforcement of § 3060(d) can be attributed directly to the

Commonwealth as a whole and, by extension, the Secretary

for the Commonwealth of Pennsylvania (Appellee). We need

not reach this argument for Appellant‟s claim is properly

disposed of on other grounds.

46

A. The “Class of One” Argument

The Fourteenth Amendment dictates that a state may

not “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV. The

purpose of this clause is “to secure every person within the

State‟s jurisdiction against intentional and arbitrary

discrimination, whether occasioned by express terms of a

statute or by its improper execution through duly constituted

agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (quoting Sioux City Bridge Co. v. Dakota Cnty., 260

U.S. 441, 445 (1923)). Where a litigant asserts a so-called

“class of one” Equal Protection challenge, alleging that the

litigant itself, and not a particular group, was the subject of

discriminatory treatment under a particular law, we have

required the litigant to allege “that she has been intentionally

treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.”

Marcavage v. Nat’l Park Serv., 666 F.3d 856, 860 (3d Cir.

2012) (quoting Vill. of Willowbrook, 528 U.S. at 564).

The allegations presented in Appellant‟s Complaint do

not demonstrate that Appellant was “intentionally treated

differently” from other newspapers in Pennsylvania. In fact,

the Complaint fails to present a single example where another

newspaper sought and obtained access to a polling place in a

location where Appellant could not. As the District Court

recognized, “[t]he facts alleged by [Appellant] suggest only

that employees of the Post-Gazette unsuccessfully sought to

enter polling places located in counties where § 3060(d) is

enforced, and that employees of other newspapers were

allowed to enter polling places in counties where § 3060(d) is

not enforced.” PG Publ’g Co., 2012 WL 4796017, at *29.

Still, we must delve deeper, for Appellant urges us that it has

47

alleged a scheme of selective enforcement sufficient to

implicate the Equal Protection Clause.

B. The “Selective Enforcement” Argument

The Equal Protection Clause prohibits the “selective

enforcement” of a law based on an unjustifiable standard.

Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir.

2006); see also United States v. Batchelder, 442 U.S. 114,

125 n.9 (1979). Thus, to establish a selective-enforcement

claim, Appellant must demonstrate: “(1) that [it] was treated

differently from other similarly situated [entities], and (2)

„that this selective treatment was based on an unjustifiable

standard, such as race, or religion, or some other arbitrary

factor, . . . or to prevent the exercise of a fundamental right.‟”

Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir.

2010) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d

Cir. 2005)). To maintain its equal protection claim, Appellant

must show not only that the administration of § 3060(d) has

resulted in “unequal application to those who are entitled to

be treated alike,” but also that there is “an element of

intentional or purposeful discrimination” present. Snowden v.

Hughes, 321 U.S. 1, 8 (1944); see also Jewish Home of E. Pa.

v. Ctrs. for Medicare and Medicaid Servs., 693 F.3d 359, 363

(3d Cir. 2012) (“[T]o maintain an equal protection claim of

this sort, [plaintiff] must provide evidence of discriminatory

purpose, not mere unequal treatment or adverse effect.”).

Here, we find that Appellant has failed to set forth the

necessary allegations. Even if we accept all of Appellant‟s

allegations at face value, as we must, we see no sign of “clear

and intentional discrimination.” Snowden, 321 U.S. at 8

(internal quotation marks omitted). The Complaint

demonstrates only that in some instances, reporters from

48

newspapers in some counties were permitted into the polling

place, while reporters in other counties were not. This is

insufficient to allege a systemic discriminatory purpose.

Accord Jewish Home, 693 F.3d at 363 (finding no “[s]elective

discriminatory enforcement” where facts demonstrated only

that some facilities were penalized less often than plaintiff).

The law cannot provide a constitutional remedy for every

situation where a party may feel slighted; claims appealing to

the Equal Protection Clause must meet a higher bar.

49

C. The “Inconsistent Application” Argument

Finally, we address Appellant‟s allegation that, in the

past, reporters were permitted to enter polling places and

photograph elected officials casting their votes. It is well-

established that “the conscious exercise of some selectivity in

enforcement [of a law] is not in itself a federal constitutional

violation.” Oyler v. Boles, 368 U.S. 448, 456 (1962); see also

Gov’t of Virgin Islands v. Harrigan, 791 F.2d 34, 35 (3d Cir.

1986) (“A prosecutor is not bound to use the habitual criminal

statute in every case to which it could be applied.”).

Here, the issue lies not in the inconsistent application

of the statute to Appellants, but in the absence of any

allegations suggesting some invidious intent. Appellant has

not set forth sufficient factual allegations to allow this Court

to draw the reasonable inference that the disparate treatment

of Appellant‟s own reporters was occasioned by some

specific agenda aimed at discriminating against Appellant‟s

personnel in particular.27 To hold, without more, that the on-

again/off-again enforcement of § 3060(d) amounts to an

Equal Protection Clause violation would unduly — and

imprudently — expand the reach of the Clause. We decline

to do so, and instead affirm the District Court.

27

For example, Appellant presents no allegations that

its reporters were barred from the polling place for printing

news items or editorials that were critical of the government.

See Capital Cities, 797 F.2d at 1176.

50

V. The Consent Decree

We now come to the Consent Order. Appellant argues

that the District Court erred in refusing to enter the Order.

Appellant argues that the parties in a litigation may agree to

any relief that is “within the general scope of the case made

by the pleadings.” Pac. R.R. v. Ketchum, 101 U.S. 289, 297

(1879). Given that this court is not “necessarily barred from

entering a consent decree . . . [that] provides broader relief

than the court could have awarded after a trial,” Local No. 93,

Int’l Ass’n of Firefighters, AFL-CIO v. City of Cleveland, 478

U.S. 501, 525 (1986), Appellant urges that the parties to the

Consent Order should “obtain the injunctive benefits of the

settlement agreement they negotiated,” Carson v. Am.

Brands, Inc., 450 U.S. 79, 89 (1981). In light of our

discussion regarding the constitutionality of § 3060(d), we

hold that the court below did not abuse its discretion in

refusing to enter the consent decree.

Consent decrees — such as the Consent Order — have

“elements of both contracts and judicial decrees.” Frew v.

Hawkins, 540 U.S. 431, 437 (2004). Thus, a consent decree

represents “„an agreement that the parties desire and expect

will be reflected in, and be enforceable as, a judicial decree

that is subject to the rules generally applicable to other

judgments and decrees.‟” Id. (quoting Rufo v. Inmates of

Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992)). Consequently,

the parties cannot circumvent valid state laws by way of a

consent decree. See, e.g., Perkins v. City of Chicago Heights,

47 F.3d 212, 216 (7th Cir. 1995) (“While parties can settle

their litigation with consent decrees, they cannot agree to

„disregard valid state laws . . . .”); St. Charles Tower, Inc. v.

Kurtz, 643 F.3d 264, 270 (8th Cir. 2011) (holding that a state

court can approve a consent order “overrid[ing] state law”

51

only where there exists a “federal constitutional or statutory

violation”).28

As our foregoing analysis of Appellant‟s First

Amendment and Equal Protection Clause claims

demonstrates, § 3060(d) does not give rise to a violation of

federal statutory or constitutional law and is therefore a valid

state statute. Thus, the District Court did not err in refusing

to enter a consent decree that would violate a valid state

law.29

28

See also Soc’y Hill Civic Ass’n v. Harris, 632 F.2d

1045, 1060 (3d Cir. 1980) (“A consent decree need not in

explicit terms require that the actions specified therein shall

be carried out in conformity with all applicable federal, state

and local law. It is sufficient if it does not authorize or

require conduct in violation of the law.”), overruled on other

grounds by Martin v. Wilks, 490 U.S. 755, 762 n.3 (1989).

29

Appellant argues that the District Court improperly

held that the Board of Elections‟ authority did not allow it to

enter into a consent decree that contravened valid state law.

Instead, Appellant avers that the Board‟s “broad discretion”

permits it to “issue rules and regulations for the guidance of

election officers,” which in turn permits it to enter into this

particular consent decree. (Appellant‟s Br. at 33-34.)

Assuming, arguendo, Appellant‟s position, we still find that

the District Court did not abuse its discretion. Regardless of

what the Allegheny County Board of Elections‟ authority

may entail, Appellant does not — and likely cannot —

maintain that it extends to overriding an existing state law.

Even if the Board may choose not to apply the law, § 3060(d)

would still remain a valid state statute, and the District Court

52

VI. Conclusion

For the reasons discussed above, we will affirm the

District Court‟s decision to grant Appellee‟s motion to

dismiss and hold it did not abuse its discretion in refusing to

enter the Consent Order.

cannot lend its imprimatur to an order that would sanction its

contravention. See, e.g., Perkins, 47 F.3d at 216 (holding that

parties to a consent decree “cannot consent to do something

together that they lack the power to do individually”); Keith v.

Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (holding that

parties to a consent decree cannot “agree to terms which

would exceed their authority and supplant state law”).

53