In Re the Reporters Committee for Freedom of the Press

J. SKELLY WRIGHT, Circuit Judge,

concurring in part and dissenting in part.

I concur in the judgment of the court insofar as it rejects appellants’ claims to a right of access to documents considered by the District Court in denying a summary judgment motion. But because I believe that appellants have a right of access to designated trial exhibits, I must respectfully dissent from that part of the majority’s opinion affirming the provisional sealing of such exhibits.

*1342 It is my view that appellants’ right of access to designated trial exhibits is secured by federal common law. Unfortunately, the majority has seized this occasion to issue an advisory opinion on the scope of the First Amendment. Ordinarily, I would not comment on such unnecessary constitutional ruminations. The dangerous drift of the majority’s analysis, however, leaves me little alternative. Contrary to the view of other United States Courts of Appeals, the majority finds that the First Amendment does not provide the slightest protection to the public’s interest in contemporaneous access to evidentiary exhibits in civil proceedings. In so doing, the majority opens the door to the abuse of provisional seals entered on the basis of mere summary affidavits. Proponents of such seals will be able to make broad, unsubstantiated, claims of confidentiality and prevent public access to critical eviden-tiary exhibits until public interest in such documents has long faded. I fear that public understanding of judicial decision-making will suffer accordingly.

I. The Common Law Right op Access

As the Supreme Court has recently reminded us, federal courts ought “not decide a constitutional question if there is some other ground upon which to dispose of the case.” Lowe v. SEC, — U.S.-, 105 S.Ct. 2557, 2563 , 86 L.Ed.2d 130 (1985), quoting Escambia County, Florida v. McMillan, 466 U.S. 48 , 104 S.Ct. 1577, 1579 , 80 L.Ed.2d 36 (1984). See also Ashwander v. TVA, 297 U.S. 288, 347 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Presumably mindful of this well established principle, the majority justifies its declaration of constitutional law by reference to the parties’ failure to brief the common law issues in this case. See majority opinion (maj. op.) at 1340.

The Supreme Court, however, has also indicated that the mere failure of the parties to brief a non-constitutional issue does not legitimate constitutional adjudication. Escambia County, supra; 104 S.Ct. at 1579 . An order directing the parties to submit supplemental briefs on the common law issues would have addressed the majority’s concern. 1 Although such a procedure might be inadvisable if it deprived the litigants of timely justice, all concede that our judgment in this case is merely prospective. Consequently, there would have been little to lose and much to gain by prudent exercise of our authority to require supplemental briefing of the common law issues in this case.

Even without the benefit of briefing, it requires little research to determine that federal courts have extended a conditional 2 common law right of access, prior to judgment, to evidentiary materials on which a court relies in issuing an order determining a litigant’s substantive rights. 3 See Matter *1343 of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984); 4 (contemporaneous right of access to materials on which court relied in dismissing derivative claims against corporate directors); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1595 , 80 L.Ed.2d 127 (1984) (right of access to trial record in civil proceeding contesting agency action); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 101 F.R.D. 34, 43 (C.D.Cal.1984) (right of access attaches as soon as documents are submitted to a court in connection with a motion); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp. 866, 899 (E.D.Pa.1981) (presumptive right of access applies to documents once there is an evidentiary hearing). Nor would I ignore the views of several state courts that have clearly articulated a pre-judgment presumptive right of access to the records of civil trials. See State of Florida ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777 (Fla.App.1975); Charlottesville Newspapers v. Berry, 215 Va. 116 , 206 S.E.2d 267 (1974); 5 Des Moines Register & Tribune Co. v. Hil-dreth, 181 N.W.2d 216 (Iowa 1970); Times-Call Publishing Co. v. Wingfield, 159 Colo. 172 , 410 P.2d 511, 512 (1966) (dicta). 6

Admittedly, few courts have directly considered whether a conditional right of contemporaneous access applies when a trial court enters a provisional seal. 7 Provi *1344 sional seals, unlike permanent seals, merely delay final determination of the confidential status of the contested documents. In gauging the public interest in access to civil proceedings, however, the timing of such access simply cannot be ignored. Indeed, the Supreme Court has found that the question of timing can rise to constitutional magnitude. 8 And at least one United States Court of Appeals has explicitly concluded that the right of access is presumptively a right of “contemporaneous” access. Continental Illinois Securities, supra, 732 F.2d at 1310 . 9 Consequently, it would seem that the common law right of access would require, at a minimum, that a party seeking a provisional seal of trial exhibits should have to make a document-by-document showing as to the need for such a seal.

Presumably, the majority seeks to preserve the flexibility of trial courts in cases involving massive documentation. This is a worthy concern. But the majority fails to explain why a District Court would be unduly burdened if it were to require the proponent of a provisional seal to come forward with a pre-trial document-by-document justification of the confidentiality of the contested material. Once such a pretrial showing were entered, nothing would then prevent a District Court from postponing a final determination of the confidential status of the contested material by issuing a provisional seal. In the meantime, however, the proponent of confidentiality would have to substantiate its concerns.

In the usual case such a minimal requirement would vindicate the public’s interest in contemporaneous access to trial exhibits in civil proceedings and allow the District Court to retain administrative flexibility. In particular, it would protect the public from abuse of provisional seals. Such abuse tends to occur whenever a party can obtain a provisional seal on the basis of a rather general affidavit describing the harm it fears from disclosure of its documents. 10 By contrast, the majority’s approach nullifies the public’s common law right of contemporaneous access. It would allow a summary affidavit to justify provisional sealing of trial exhibits in civil proceedings and therefore would do nothing to prevent abuse of such orders.

This case provides an object lesson in the dangers of such an approach. In this case the District Court did not require Mobil to make a document-by-document showing as to the need for a provisional seal. Instead it was content to rely on the June 12, 1981 affidavit which merely identified the harm that might befall Mobil from disclosure in general. The affidavit said nothing as to how the alleged harm might result from the disclosure of specified individual documents. Mobil consequently claimed thousands of pages of discovery documents to be “confidential.” Once the trial ended and the intensity of public attention abated, Mobil conceded the non-confidentiality of all but a handful of its documents. In the end it was unable to sustain its claims of confidentiality for a single document. Because this course of action effectively subverted the public’s common law right of contemporaneous access to trial exhibits, I would reverse the District Court’s decision *1345 to extend the terms of its umbrella protective order to the trial itself. 11

The foregoing analysis leads me to the conclusion that, under the facts of this case, 12 the District Court should have granted the Reporters Committee’s request for immediate access to the designated trial exhibits. My conclusion is based on two predicates. First, Mobil had effectively waived its right to demand a document-by-document analysis of the confidentiality of the disputed trial exhibits. Second, the District Court’s determination that a document-by-document analysis would disrupt the trial justified an order summarily granting access to such documents.

As I have suggested, I believe the federal common law presumption of access imposes, at a minimum, an obligation on the proponent of a provisional seal to provide a document-by-document justification for such a seal. But federal common law does not provide an absolute right to provide such a justification. Whatever the right to provide such justification, circumstances may indicate that a party has waived its right in a particular case. In a case where this right has been waived there is no longer any reason to delay a ruling on the issue of access. I believe this to have been such a case.

In this case Mobil could and should have provided its document-by-document justification in its eve-of-trial motion. It chose not to. In so doing Mobil could have anticipated that any challenge to the provisional seal would arise at a time when a doe-ument-by-document review would disrupt the trial. In a typical case the prospect of such a disruption might decisively shift the balance of competing interests against an immediate ruling on the issue of confidentiality. If such a ruling were delayed, the proponent of the provisional seal would benefit from its own failure to present a document-by-document justification before the trial began. Such a result would encourage tactical abuse of provisional seals and vitiate the federal common law right of contemporaneous access. Only a policy of summarily sustaining the challenge to a provisional seal in such circumstances would effectively deter this abuse. Accordingly, I would hold that whenever a party has an opportunity to present its document-by-document justification before trial and fails to do so, that party has constructively waived its right to present such a justification should the issue be raised mid-trial.

Notwithstanding such a waiver of the right to present a document-by-document justification, the District Court of course retained discretion to require Mobil to provide such a justification. The District Court, however, determined that a document-by-document ruling in the midst of trial would be unduly disruptive. Given this conclusion, the appropriate course of action would have been to grant immediate access without such a document-by-document analysis.

In sum, having failed to provide a document-by-document justification of the *1346 need for confidentiality in its eve-of-trial motion, Mobil bore the risk that public intervention in the midst of trial might spur the District court to take summary action. 13 Any rule to the contrary would effectively encourage proponents of provisional seals to manipulate the balance of competing interests to obtain a near-automatic delay of any ruling on the confidentiality of their documents. I am fearful that the majority’s opinion invites precisely this sort of abusive behavior. Such a legal regime .will unacceptably force the public to secure efficient trials only by sacrificing the openness of such proceedings. I therefore believe that the federal common law right of access required the District Court to grant access to the designated trial exhibits in this case. 14

II. The First Amendment and the Presumptive Right of Contemporaneous Access to Trial Exhibits

Notwithstanding appellants’ colorable common law claims, the majority proceeds to declare that it finds no conditional First Amendment right of contemporaneous access to trial exhibits in civil proceedings. 15 The majority’s conclusion rests on two premises. First, the majority claims that before the First Amendment can provide the slightest protection to the public’s interest in access to trial exhibits, such prejudgment access must be shown to have been firmly established in nineteenth century common law. Maj. op. at 1332. Second, the majority claims that, as a matter of historical fact, there was no common law right of access before a judgment issued. Maj. op. at 1332-34. Supreme Court *1347 precedent contradicts the first proposition. Careful reading of the common law undermines the second. Consequently, I find myself in agreement with those Courts of Appeals that have found that the First Amendment provides a presumptive right of contemporaneous access to materials admitted into evidence in a civil proceeding. 16 See Continental Illinois Securities, supra; Brown & Williamson, supra.

A. The Scope of the First Amendment Right of Access to Trial Exhibits

1. The role of historical practice in delineating the right of access. The majority asserts that before it would find that the First Amendment extends a pre-judgment right of access to documents in a civil proceeding it would have to be assured that such a right of access was clearly and specifically established by “historical” common law precedent. Maj. op. at 1332. As I read the Supreme Court’s discussion of the public’s right of access under the First Amendment, I find no such requirement.

The Court’s most recent consideration of the degree to which the First Amendment affects the open character of judicial proceedings, Seattle Times Co. v. Rhinehart, 467 U.S. 20 , 104 S.Ct. 2199 , 81 L.Ed.2d 17 (1984), devoted precisely one sentence to the historical status of pre-trial proceedings, id. 104 S.Ct. at 2207-08. Far from declaring the lack of historical support for a right to disseminate pre-trial discovery documents to be dispositive, the Court merely weighed that consideration along/ with many other factors. The statutory source of the right to conduct discovery, the general custom governing publicity at pre-trial proceedings, the irrelevance of many discovery documents to the underlying cause of action, and the limited effect of pre-trial protective orders on an individual’s capacity for self-expression were all weighed in the balance. Id. at 2207-08 & n. 19. Had all other indicia been to the contrary, it is far from clear that the Court would have found historical practice, standing alone, to be conclusive. In light of such an eclectic approach, it is not surprising that a panel of the Second Circuit recently concluded that a majority of the Justices have come to rely on functional arguments in determining the scope of the right of access. See Application of the Herald Co., 734 F.2d 93, 98 (2d Cir.1984).

There can be no question but that the Court has indicated that historical practice can shed light on the general contours of the right of access and that history can illuminate the underlying policy concerns surrounding the right. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501 , 104 S.Ct. 819, 822 , 78 L.Ed.2d 629 (1984) (terming the historical data “helpful”). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 , 102 S.Ct. 2613, 2619 , 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-69 , 100 S.Ct. 2814, 2820-23 , 65 L.Ed.2d 973 (1980) (plurality opinion). Nonetheless, I cannot agree with the majority’s assertion that the Court has fossilized the First Amendment. Nowhere does the Court equate the scope of its protections with those precise practices that can be shown to have been firmly established at common law. Instead, the Court appears to have weighed historical practice as one factor among many in evaluating the appropriate scope of the right of access.

In the context of this case, the majority would find the general historical presumption of the open character of trial exhibits *1348 in civil proceedings to be irrelevant. Only a specific tradition of pre-judgment access would suffice. By contrast, I would find such a general historical tradition illuminating. Unless the common law were plainly established to the contrary, I would weigh that tradition, along with other factors, in determining whether the First Amendment provides a presumptive right of access to trial exhibits in civil proceedings before a judgment has been entered.

2. The general common law presumption of access. As the majority implicitly concedes, there is a longstanding common law tradition assuring a presumption of access to trial exhibits in civil proceedings. See Richmond Newspapers, supra, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17 (“[Hjistorically both civil and criminal trials have been presumptively open.”); Gannett Co. v. DePasquale, 443 U.S. 368 , 386 n. 15, 99 S.Ct. 2898 , 2908 n. 15, 61 L.Ed.2d 608 (1979) (same); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 , 98 S.Ct. 1306, 1311-12 , 55 L.Ed.2d 570 (1978) (there is a long-standing conditional common law right of access to trial exhibits). The underlying rationale for this presumption of openness was succinctly stated by the then Judge Holmes: “[I]t is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pul-sifer, 137 Mass. 392, 394 (1884).

The majority contends, however, that the historical common law right of access was not implicated prejudgment. Maj. op. at 1335-36. My own reading of the cases cited by the majority fails to persuade me of this proposition. Instead, these cases suggest that the right of access to trial exhibits attached once such exhibits were introduced at trial and thus became, in the words of Chief Justice Burger, “part of the [presumptively open] trial.” Gannett Co., supra, 443 U.S. at 396 , 99 S.Ct. at 2914 (Burger, C.J., concurring).

The majority cites only two “historical” cases directly addressing the right of access. The earlier of the two, Schmedding v. May, 85 Mich. 1 , 48 N.W. 201 (1891), concerned the attempt of a reporter to obtain access to pre-trial pleadings. The court framed the issue as follows:

The question is therefore fairly presented, have parties the right to an examination of the records and papers in a cause for the purpose of publishing statements in regard thereto in the newspapers, before trial or hearing, or before they become public by proceedings taken in open court? * * *

Id. 48 N.W. at 202 (emphasis added). The Michigan court’s holding was framed in similarly narrow terms. “[0]ur conclusion is that the parties to suits in court may, under the direction of the court, lawfully withhold the records and papers in the case * * * until they are made public * * * by proceedings in open court.” Id. 48 N.W. at 203 . At no point does the court suggest that the trial court has plenary discretion to seal trial exhibits until judgment issues. 17

*1349 The majority also cites Burton v. Reynolds, 110 Mich. 354 , 68 N.W. 217 (1896). In that case the Michigan court again refused to require a trial court to allow a non-litigant to have access to the pre-trial pleadings. Not only does this case merely purport to follow the rule established in Schmedding , but it reiterated the view that trial courts had unfettered discretion to refuse pre-trial requests for access, saying: “[I]t is not the absolute right of persons to make merchandise of the contents and allegations contained in the records of private actions and suits, before trial, for gain.” Id. (emphasis added). 18

Unable to muster support from “historical” cases, the majority seeks support in more recent precedent. But only one of the mid-century cases cited by the majority contains dicta suggesting adherence to a “post-judgment rule,” State ex rel. Willi-ston Herald, Inc. v. O’Connell, 151 N.W.2d 758 (N.D.1967). O’Connell , however, concerned the right of access in a criminal case. Its view of the pre-judgment right of access was limited accordingly: “The records of criminal trials conducted in respondent’s court are public only after such proceedings are completed and entered in the docket of the court.” Id. at 763 . Thus it is far from clear that O’Con-nell endorsed a common law “rule” concerning pre-judgment access in civil cases, a rule that the majority claims was grounded in the need to protect private reputations from private calumny. 19 Rather, the *1350 court may simply have been moved by the need to provide a fair trial to a criminal defendant, free of prejudicial pre-judgment publicity.

Although two of the mid-century cases cited by the majority 20 suggest that access could be unconditionally barred before the end of the “trial” (but not before “judgment”), most of the remaining mid-century cases that the majority claims refer to a “post-judgment” rule actually recite a “pretrial” rule. 21 And as I have noted, the *1351 trend in the cases over the last 15 years has been to declare a presumptive right of access to the records of civil proceedings. 22

Not surprisingly, the majority concedes that there is “sparse” authority, whether “historical” or otherwise, supporting the “post-judgment rule.” Maj. op. at 1335. Indeed, there is almost none. Instead, a review of common law precedent suggests a presumptive right of contemporaneous access to the records of civil proceedings. To the degree that the common law limited the time at which such access might occur it appears to have shown a preference for access at the time the trial began, not at the time judgment issued. Given the functional arguments supporting the right of access, identified by Holmes over a hundred years ago, it is difficult to imagine how the line could have been drawn anywhere else.

2. The functional basis of a right of access to trial exhibits in civil cases. Open trials serve several important functions. They enhance the quality of fact-finding. Cf. Globe Newspaper, supra, 457 U.S. at 606 , 102 S.Ct. at 2619 (criminal trial). They assure the appearance of fairness. Cf. Press-Enterprise, supra, 104 S.Ct. at 823 (criminal trial). And they play a cathartic role in permitting the community to observe justice being done. Cf. Richmond Newspapers, supra, 448 U.S. at 570-572 , 100 S.Ct. at 2823-25 (plurality opinion) (criminal trial). But most important, open trials are essential to the legitimacy of judicial proceedings. As the Chief Justice observed in Richmond Newspapers:

People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding of the system in general and its workings in a particular case[.]

448 U.S. at 572 , 100 S.Ct. at 2825 . See also Press-Enterprise, 104 S.Ct. at 823 ; Globe Newspaper, 457 U.S. at 606 , 102 S.Ct. at 2619 ; Richmond Newspapers, 448 U.S. at 569-70 , 100 S.Ct. at 2823-24 .

Although the Supreme Court has not yet expressly applied this logic to civil proceedings, several United States Courts of Appeals have found that the same functional concerns that argue in favor of open criminal proceedings also argue in favor of open civil proceedings in general, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984), and to evidentiary exhibits in particular. Continental Illinois Securities, supra, 732 F.2d at 1308-09 ; Brown & Williamson, supra, 710 F.2d at 1179 . 23

*1352 I agree. Civil adjudication, no less than criminal trials, must maintain its public legitimacy. And to the degree that such legitimacy turns on public access to the grounds of judicial decisionmaking, it makes little sense to distinguish oral and written testimony. Either may provide the basis for a final determination of individual legal rights. As the Sixth Circuit observed in Brown & Williamson: “These principles apply as well to the determination of whether to permit access to information contained in court documents because court records often provide important, sometimes the only, bases or explanations for a court’s decisions.” 710 F.2d at 1177 . Consequently, I find little reason not to extend the presumptive right of access to trial exhibits in civil proceedings.

The majority, however, suggests three reasons why the records of civil proceedings ought not be presumptively open until a judgment has issued.

First, the majority speculates that prejudgment access is rarely requested. Maj. op. at 1337. Whether or not this is true as an empirical matter, it is simply irrelevant. It may be that the public often has little interest in private suits. But the functional concern for judicial legitimacy does not depend on ongoing, daily public monitoring of the court system. Rather it depends on the public’s assurance that when an important case arises the public will have a presumptive right of access to the bases of judicial decisionmaking at the time when that case is newsworthy.

Second, the majority argues that denial of contemporaneous access to trial exhibits “does not provoke the kind of outcry which closing of a trial usually excites.” Id. The volume of public outcry does not provide the measure of constitutional guarantee. This is particularly true where the value of that guarantee can only be appreciated after the documents in question have been publicized in a timely manner. Indeed, provisional seals, preventing timely release of critical materials, are probably the surest method for minimizing public concern over closed proceedings.

Finally, and perhaps more seriously, the majority argues that, unlike live proceedings, the public can learn of the subleties of trial exhibits through a post-judgment reading as readily as by a pre-judgment reading. Id. The majority, however, has completely misapprehended why courts have found that “the presumption of access normally involves a right of contemporaneous access[.]” Continental Illinois Securities, supra, 732 F.2d at 1310 (emphasis in original). As the Supreme Court observed over 40 years ago in Bridges v. California, 314 U.S. 252, 268-69 , 62 S.Ct. 190,196-97 , 86 L.Ed. 192 (1941):

It must be recognized that public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pend-ency of a case, the judgments below therefore produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height. * * *

No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression. Yet, it would follow as a practical result of the decisions below that anyone who might wish to give public expression to his views on a pending case involving no matter what problem of public interest, just at the time his audience would be most receptive, would be as effectively discouraged as if a deliberate statutory scheme of censorship had been adopted. * * *

This unfocussed threat is, to be sure, limited in time, terminating as it does upon final disposition of the case. But this does not change its censorial quality.

*1353 * * * And to assume that each [temporary moratorium on publicity] would be short is to overlook the fact that the “pendency” of a case is frequently a matter of months or even years rather than days or weeks.

In short, the harm to the public interest does not lie in the possible distortions that might result from untimely release of important documents. Instead, the harm to the public interest derives from the effective suppression of important news through delay which, as the Court noted in Bridges , can be as censorial as an overt scheme of restraints.

The facts of this case provide an object lesson in the importance of assuring a contemporaneous presumptive right of access to trial exhibits. Mobil initially swept thousands of pages under the November 5,1981 umbrella protective order. When put to its proof, Mobil only specifically contested the confidentiality of three of these documents (and only contested two of them in a consistent manner). When the trial judge examined Mobil’s brief justification for its claim of confidentiality for these documents it found it insufficient to sustain a permanent seal.

Mobil fully understood that it would some day have to justify its claims of confidentiality. Indeed, the terms of the July 20, 1982 order made plain that the court would determine the confidentiality of the documents at issue shortly after completion of the trial. Mobil was presumably aware that many of its allegations would ultimately fail to pass muster. Nonetheless, Mobil indiscriminately sought to take maximum advantage of the terms of the provisional seal, obtaining the one sure benefit the July 20, 1982 order could provide: delay. Once the trial was over, and the glare of publicity had subsided, Mobil voluntarily waived its claims to confidentiality. Such conduct, if nothing else, belies the majority’s assertion that little turns on the timing of the public’s presumptive right of access. 24

In the end, the majority’s argument rests on its ipse dixit that there be “an historic practice of such clarity, generality and duration as to justify the pronouncement of a constitutional rule preventing federal courts and the states from treating the records of private civil actions as private matters until trial or judgment.” Maj. op. at 1336 (emphasis in original). For the reasons stated above, I find this requirement to be unacceptably rigid. New constitutional rights that we now take for granted would survive this brittle test. In light of the general common law presumption of access to civil trial exhibits, at least once the trial had begun, and in light of the compelling policy considerations identified by the Supreme Court, I would find that the First Amendment provides a presumptive right of contemporaneous access to trial exhibits in civil proceedings.

B. The Applicable Standard

Having found that a presumptive right of contemporaneous access applies to trial exhibits in civil proceedings, it remains for us to determine what standard the First Amendment imposes on a court before it *1354 can provisionally seal such exhibits until the completion of the trial. The Supreme Court has most recently spoken as if closure orders must meet the test of strict scrutiny. See, e.g., Press-Enterprise, supra, 104 S.Ct. at 824; Globe Newspaper, supra, 457 U.S. at 606 , 102 S.Ct. at 2619 . But the Court has also sometimes suggested that less exacting standards might apply. See, e.g., Gannett Co., supra, 443 U.S. at 393 , 99 S.Ct. at 2912 ; Richmond Newspapers, supra, 448 U.S. at 600 , 100 S.Ct. at 2840 (Stewart, J., concurring). Indeed, the Second Circuit has gone so far as to suggest that “uncertainty marks the nature—and strictness—of the standard of closure” adopted by the Supreme Court regarding the right of access to criminal trials. Application of the Herald Co., supra, 734 F.2d at 99 , quoting Richmond Newspapers, 448 U.S. at 603 , 100 S.Ct. at 2841 (Blackmun, J., concurring in judgment). 25

But even if the most recent Supreme Court pronouncements on the subject can be said to establish a rule of strict scrutiny, I would hesitate to apply that standard to issuance of a provisional seal. Although the strict scrutiny standard applied to closure of criminal trials might appropriately be extended to permanent closure of civil trial records, common sense suggests that a trial court ought to retain the flexibility to issue provisional seals without meeting such an exacting test.

As noted above, in choosing to enter a provisional seal the trial court infringes on the public’s First Amendment rights by imposing a delay on access. Although a delay plainly restricts First Amendment rights, it need not be understood as a direct restriction on the right of access. In many cases the District Court will provisionally seal certain designated trial exhibits without a document-by-document determination because it is concerned about the administrative burden caused by the need to sift through large quantities of documents stamped “confidential.” Neither the content of the contested material nor the consequences of publicity need animate the decision to issue a provisional seal. Under such circumstances, where the government has burdened First Amendment rights without regard to content and without seeking to stifle expression, courts have declined to employ strict scrutiny. Cf. United States v. O’Brien, 391 U.S. 367, 377 , 88 S.Ct. 1673, 1679 , 20 L.Ed.2d 672 (1968).

On the other hand, the merely provisional character of the seal does not, as the majority suggests, prevent such a seal from running afoul of the First Amendment. Indeed, provisional seals pose a particular danger to the public’s First Amendment interests where they are subject to abuse because they have been entered on the basis of an affidavit that merely identifies the general harms that might flow from disclosure without suggesting why disclosure of particular documents will produce that harm. 26

Consequently, I am inclined to require only that the trial court establish (a) that the provisional seal was justified by a substantial government interest, and (b) that there was no less restrictive means of achieving that interest. Cf. Application of the Herald Co., supra, 734 F.2d at 100-01 *1355 (applying a similar intermediate standard in the context of reviewing closure of a suppression hearing); Publicker Industries, supra, 733 F.2d at 1070 (applying similar standard in the context of reviewing closure of a preliminary injunction hearing and sealing of the record of that hearing). Moreover, in evaluating the government’s interest I would require that it be unrelated both to the content of the material subject to the provisional seal and to the consequences of disclosure. Cf. generally O’Brien, supra, 391 U.S. at 377 , 88 S.Ct. at 1679 (applying this standard to “incidental” infringements on First Amendment rights). Requiring a showing of a mere “substantial” government interest would enable the District Court to cite the need to avoid undue delay in the underlying substantive litigation as a good and sufficient reason for entering a provisional seal. But requiring the court to consider less restrictive means of attaining such legitimate ends will protect the public from the talismanic invocation of the need for efficient litigation as a ground for delaying public access.

C. The Standard Applied

There is no doubt that the interest relied upon by the District Court in its order of July 20, 1982 constituted an adequate government interest. The court argued that it sought to postpone a final determination of the confidential status of the disputed documents so that it might concentrate its efforts on the substance of the underlying libel litigation. Order of July 20, 1982 at 4, Appellants’ Record Excerpts at 163. When the District Court entered this order it was faced with several unpalatable choices. It could have (1) continued the terms of its protective order, (2) stopped the trial until it had determined the confidentiality of all of those designated trial exhibits for which Mobil still claimed confidentiality, or (3) issued collateral orders on the confidential status of various documents as they were admitted into evidence. It is hardly surprising that the court chose the first option.

The District Court, however, could have avoided this mid-trial dilemma by denying Mobil’s motion of July 5, 1982. Had the court required Mobil to provide the sort of document-by-document justification for the continued confidentiality of those documents that the parties had designated as trial exhibits it would never have had to face such an unfortunate set of mid-trial choices. 27 I am mindful that parties tend to designate many more documents as exhibits than are actually introduced as evidence at trial. But the document-by-document justification eventually offered by Mobil was hardly voluminous. The record reveals that Mobil only provided a paragraph or two for each of the documents whose confidentiality it ultimately contested. A comparison of Mobil’s affidavit of June 12, 1981 supporting the initial protective order and the affidavit of May 31 , 1983 suggests that it would not have been that difficult for the District Court to make a pre-trial determination of the confidentiality of Mobil’s documents. For example, the District Court appears to have been able to dispose of at least one of Mobil’s claims of confidentiality merely by noting that the document in question was too old to contain *1356 competitively sensitive information. Memorandum of June 21, 1983 at 4, Appellants’ Record Excerpts at 183.

Of course, it is wholly possible that Mobil would have contested a larger number of documents if it were faced with the prospect of mid-trial disclosure. It may also have expended greater resources in arguing for the confidentiality of particular documents. In that instance, I would defer to the judgment of the District Court in postponing a final determination until after completion of the trial. But by forcing Mobil to make some sort of document-specific showing before trial the District Court would have reduced the potential for abuse of its umbrella order of July 8, 1982. Such an order would have served the public’s First Amendment interest in access to those materials as to which there was not even a colorable claim of confidentiality. 28 Put simply, it would have been a “less restrictive alternative.”

Thus, although I would not require a District Court to make a document-by-document determination in every case before issuing a provisional seal, I believe the First Amendment minimally requires that the proponents of a provisional seal provide a pre-trial document-by-document justification for the continued confidentiality of designated trial exhibits. A provisional sealing order entered in the absence of such a showing would constitute a failure to consider reasonable alternatives. Consequently, I believe that the District Court’s order of July 8, 1982 violated the First Amendment. Insofar as the order of July 20 simply sustained the July 8 order, it too ran afoul of the public’s right of access.

I respectfully dissent from affirmance of the provisional sealing of designated trial exhibits.

. This is essentially the course followed by the Escambia Court. In Escambia, however, the Court not only required the parties to rebrief the issues but, because the issue of avoiding a constitutional decision first arose in the context of Supreme Court review, it also forced the parties to argue their case at the appellate level.

. Nothing in this opinion should be taken to suggest that there is an absolute right of access to disputed evidentiary documents regardless of their content. On the contrary, my analysis assumes that at some point the proponent of a seal should have the opportunity to present a document-by-document justification of the need for confidentiality. Consequently, throughout this opinion I will only refer to a "conditional” or "presumptive” right of access.

. The status of the common law right of access to discovery documents is less clear. The Seventh Circuit has found that a presumptive right of contemporaneous access attaches before trial, as long as the case is at an "adjudicative stage.” Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1314 (7th Cir.1984). The Second Circuit has found a post-summary judgment right of access. Joy v. North, 692 F.2d 880, 893 (2d Cir.1982). In both of these cases, however, the court made a final determination of private rights in the course of deciding a pre-trial motion. In our case, however, the court denied the summary judgment motion, essentially postponing a final determination of substantive legal rights. The public interest in obtaining contemporaneous access to such documents is not as pressing. Consequently, I fail to find a common law right of access to the documents to which the District Court may have referred in denying the summary judgment motions. My concurrence, however, should not be read to signify that I think there would be no federal common law right of access in a case *1343 where a pre-trial motion resulted in a final judgment.

. The majority suggests that the conclusion of the Seventh Circuit is distinguishable because the court effectively dismissed some of the claims in the case at the time it granted access to the disputed documents. See maj.op. at 1336 n. 8. Assuming, arguendo, that such a dismissal were relevant, it should be noted that the Continental Illinois court only reviewed the effective dismissal of derivative claims against some of the defendants. 732 F.2d at 1306 . The disputed evidentiary document, the Special Litigation Report, would continue to affect the rights of the remaining defendants. Nonetheless, the Seventh Circuit affirmed the pre-judgment disclosure of that Report.

. The majority claims that this case is distinguishable on the ground that a government agency was a party. This is unpersuasive for two reasons. First, the court reversed an order that would have barred public access to all papers in any new civil action filed in that court until 21 days had elapsed from the date of such filing. Although the court also restricted access to hearings concerning a challenge by the Board of Supervisors to a special grand jury, the order sealing court records was not, by its terms, restricted to that case. Second, the common law right of access vindicates the public’s interest in receiving information about the operations of the judicial branch of government. The public interest in access is implicated whether or not another government agency is involved in the case.

. The majority attempts to distinguish Wingfield on the ground that the court in that case merely construed the scope of a state statute. The statute in question provided that only "parties in interest or their attorneys! ] shall have the right to examine pleadings or other papers filed in any cause pending in such court.” 410 P.2d at 512 , citing C.R.S.1963, 35-1-1. In holding that the statute did not require sealing of the pleadings in a civil suit contesting a school bond election, the court apparently relied on its understanding of the American common law presumptions in 1885 when the statute was enacted. Because the court believed that the general understanding in 1885 in Colorado would have been to, provide access to civil actions "involving matters of public interest” the court carved out an exception to the otherwise restrictive state statute. Id. Thus Wingfield expresses both modern and historical concerns for the presumptive openness of the records of civil procedures.

. Courts that have spoken approvingly of provisional seals have only done so in cases where the underlying litigation turned on the confidentiality of information that would be made public if no provisional seal were entered. Thus in Des Moines Register & Tribune Co. v. Hildreth, 181 N.W.2d 216 (Iowa 1970), the appellate court granted a writ of mandamus, forcing the trial court to unseal the record of a pending civil case. The court, however, did suggest that a provisional seal might be acceptable. Id. at 221 . But the reason the Hildreth court believed that such a provisional seal might defeat an application for a writ of mandamus was that the underlying litigation in that case concerned the confidentiality of certain government records. Consequently, it would make sense to allow for a provisional seal so as not to moot the substantive issue of the underlying litigation. No such consideration presents itself in this case. See also Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir.1984).

. See text infra at 1352-53 (discussing the importance of contemporaneous access under the First Amendment).

. Although the Supreme Court has held that the common law right of access to evidentiary exhibits in civil cases does not provide an absolute right to copy and broadcast such exhibits, Nixon v. Warner Communications, Inc., 435 U.S. 589, 608 , 98 S.Ct. 1306, 1317 , 55 L.Ed.2d 570 (1978), the Court never questioned the common law right to inspect such exhibits at the time of trial. See id. at 609 . See also Continental Illinois Securities, supra note 7, 732 F.2d at 1309 n. 11.

. Cf., e.g., Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp. 866, 873-74 (E.D.Pa.1981); 513 F.Supp. 1100 (E.D.Pa.1981) (plaintiff designated 100,000 pages of discovery documents as "confidential” under an umbrella protective order). See also Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1, 11 n. 51 (1983).

. I am not unaware of the practical difficulties that faced the District Court in this case, given appellants’ mid-trial intervention. But for the reasons stated, I do not think this justified the July 20, 1982 order. My analysis leads me to conclude that the District Court ought not to have allowed the conditions for appellants’ mid-trial intervention to have come to fruition, i.e., it ought to have denied Mobil's July 5, 1982 motion seeking to extend the terms of the November 5, 1981 protective order to the trial. Thus the rule I suggest today would not force disruption of ongoing trials. Rather, its general effect would be to require District Court judges to deny eve-of-trial motions to seal trial exhibits absent a document-by-document justification while providing an incentive to proponents of provisional seals to provide such justifications before the trial began.

. Nothing in my reasoning suggests that the federal common law right of access necessarily bars parties from presenting a document-by-document justification in the midst of trial. I only address the narrow case where (a) proponents of a provisional seal had the chance to make a document-by-document justification and instead presented a summary affidavit, and (b) the District Court determined that a mid-trial document-by-document analysis would be unduly disruptive.

. It might be argued that it would be unfair to place such a burden on Mobil, given that the law of this circuit was not clarified at the time Mobil entered its eve-of-trial motion. If our holding today were anything other than a purely prospective statement of the law, such an argument would have merit. But given the prospective character of our ruling, Mobil’s arguable lack of notice is irrelevant.

Indeed, the majority’s critique of the practicality of the rule I suggest today, see maj.op. at 1340-41, can be traced to its failure to view the proponent of a provisional seal as being fully aware of its common law obligations. Thus the majority fails to appreciate the fact that Mobil had close to eight months to prepare its case justifying a provisional seal. Discovery of Mobil’s documents had proceeded under the District Court's protective order since November 5, 1981. Nonetheless, the majority pretends that the first time Mobil could or should have thought of the need to provide a document-by-document justification of the need for a provisional seal was on the date on which it received a list of designated trial exhibits. Surely, a reasonable would-be proponent of a provisional seal, aware of its common law obligation to provide a document-by-document justification, could be expected to begin preparing its case well before the eve of trial.

I am well aware that the list of discovery documents was far longer than the list of designated trial exhibits. But at the very least, Mobil would have been alerted to the allegedly most sensitive documents and could have prepared a few brief paragraphs on each one (as that was all that it prepared in its ultimate justification presented to the District Court after completion of trial). Then, when the list of designated trial exhibits was issued, Mobil could have culled the relevant documents from the complete universe of discovery materials and filled the remaining gaps. In the unusual case where there was inadequate time for such last minute gap-filling, the District Court could easily provide for additional time. In any event, I fail to understand why the public should bear the burden of Mobil’s failure to take the proper notes necessary to make its case when it was Mobil that sought the benefits of a provisional seal.

Thus, although majority’s sympathetic portrait of Mobil’s overburdened counsel is touching, the facts are to the contrary. Indeed, if one were to accept the majority’s view one would have to believe that Mobil did not know why it was going through the exercise of requesting a provisional seal in the first place.

. Thus, contrary to the majority’s suggestion, see maj.op. át 1340, my analysis of the federal common law in this case leads me to argue in favor of granting the relief requested below regarding the designated trial exhibits. My concern to avoid the constitutional issues surrounding the right of access to designated trial exhibits follows as a direct result.

. The majority implies that the doctrine of constitutional avoidance does not prevent it from reaching the issue of the right of access to designated trial exhibits because there is a genuine constitutional issue concerning access to pre-trial discovery documents. It has always been my understanding that the doctrine of constitutional avoidance cautions us to be quite discriminating in deciding whether to reach a particular constitutional issue. I therefore fail to understand why the majority paints with so broad a brush.

. It does not appear that any other circuit has adopted the view expressed by the majority opinion. Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir.1981), found no First Amendment right to copy or broadcast trial exhibits, but the court noted that the public had been afforded the right to inspect the exhibits in question. It argued that the Constitution is "fully satisfied by the kind of untrammeled access” afforded in that case. Id. at 427 . Publicker Industries, supra note 7 , 733 F.2d at 1073 , includes dicta approving of a provisional seal. But as in Hildreth , see note 7 supra, the underlying litigation concerned the confidentiality of information that would be made available at the closed hearing. Under these circumstances the Third Circuit indicated that a provisional seal might be warranted so as not to moot the underlying litigation.

. Nor can the phrase "made public by proceedings taken in open court” refer only to those documents actually read aloud in open court. The Schmedding court indicated that this was not its view when it stated its understanding of the rationale underlying the right of access: the need to assure that everyone be able "to satisfy himself with his own eyes as to the mode in which a public duty is performed." Schmed-ding v. May, 85 Mich. 1 , 48 N.W. 201, 202 (1891), quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). If the purpose of the right of access was to assure that the public understood the basis of judicial decisionmaking, it would make little sense to enable the public to obtain the information it needed only in those case where the crucial evidence was given orally rather than in the form of exhibits.

It is true that the Schmedding court also articulated a rationale for a limit on the right of access: the need to protect private parties from scurrilous charges contained in pre-trial pleadings. But the court apparently saw the principal danger as inhering in those pleadings that although filed “may never come to trial or hearing." Thus the court sought to protect litigants’ privacy by preventing pre-trial disclosure.

The Schmedding court sought to balance the public’s interest in access and the individual’s *1349 interest in privacy by limiting the right of access to the trial stage of the litigation. As the majority suggests, a complete vindication of the private interest in reputation might have required the court to deny the right of access pre-judgment. But unlike the majority here, the Schmedding court sought to achieve a measure of protection for both the public and the private interest; it did not seek to vindicate the individual’s privacy interest at the cost of eviscerating the public interest in self-governance. Consequently, it drew the line at the onset of the trial.

. The majority also cites Ex parte Drawbaugh, 2 App.D.C. 404 (1894). In dicta the court distinguished the right of access to papers that had been "merely filed” and those as to which the court had taken some action. Id. at 407 . The court also distinguished between post-judgment papers and pre-judgment and pre-trial papers. Id. at 406 . Consequently, this case cannot provide support, even in dicta, for the majority's alleged "post-judgment rule."

The majority also alludes to a line of cases concerning the scope of the reporter’s privilege in libel cases to report judicial proceedings without fear of liability. Maj. op. at 1335. Again, neither of the "historical” cases cited by the majority provide support for a “post-judgment” rule. In Cowley v. Pulsifer, supra note 17 , the court refused to extend the privilege when a newspaper published the contents of pre-trial pleadings. The court found that there was no privilege as to such a "preliminary written statement of a claim or charge" because "[kjnowledge of them throws no light on the administration of justice.” 137 Mass, at 394. Although Holmes noted that allowing access to the civil trial itself might present some peril to individual privacy and reputation, he concluded that “[f]or the purposes of the present case, it is enough to mark the plain distinction between what takes place in open court, and that which is done out of court by one party alone, or more exactly * * * the contents of a paper filed by him in the clerk’s office." Id. at 395 .

Park v. The Detroit Free Press, 72 Mich. 560 , 40 N.W. 731 (1888), also cited by the majority, see maj. op. at 1333, was another libel suit for publication of a pre-trial filing. In holding that such a publication was not privileged, the court again drew a distinction between pre-trial and trial papers:

If pleadings and other documents can be published to the world by anyone who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court[.] * * *

Id. 40 N.W. at 734 (emphasis added).

Finally, it should be noted that recent scholarly treatment of the "historical” cases analyzed by the majority finds that such cases established a pre-trial, not a “post-judgment,” rule. See Marcus, supra note 10, 69 Cornell L.Rev. at 33 n. 136.

. The O’Connell court did assert that "[w]e believe that it is the right of the public to inspect the records of judicial proceedings after such proceedings are completed and entered in the docket of the court.” 151 N.W.2d at 763 . Admittedly, this dicta is not restricted to criminal proceedings. But neither does this dicta indicate that there is no pre-judgment right of access pre-judgment. It only asserts that there is a conditional right of access post-judgment. Indeed, the issue presented in O’Connell was whether a newspaper could gain access to post-judgment criminal records and thereby avoid the burden of having a reporter present in the court-room during the trial. Id. at 760 . Not *1350 only did the court not have occasion to consider the right of access at the time of trial, it may have assumed that such a right did obtain at that time. Thus, the court argued, "The trials in respondent's court are open to the public, and the petitioner’s reporters, or anyone else, may attend such trials. We are faced here not with the right to know, but with the very limited question of the right of the petitioner to inspect the criminal records of the court after the trial has been concluded." Id. at 762 . Although this language does not expressly indicate that the record was open at the time of trial, a prior statement of the court suggests that this may have been its meaning: “[Petitioner] desires to inspect the criminal records of the county court so that this information can be obtained without having its reporter present throughout the trial of each case. This proceeding involves, therefore, not so much the right of the petitioner to secure the information it seeks as it does the method of getting such information.” Id. at 760 . Thus the court appears to have assumed that the press could obtain all of the information it desired on the basis of its right of contemporaneous access to the "trial.”

. Of the cases cited in support of the “post-judgment rule" only one, C. v. C., 320 A.2d 717 (Del.1974), concerned a prejudgment request for access to records that might contain trial exhibits in a civil case. In C. v. C. a reporter sought access to a sealed file in a divorce case after the trial had been completed but before judgment had issued. The court noted, in dicta, that there was a general right to access "after completion of the proceedings," but then went on to explain why that right was not absolute. Id. at 724 . What is remarkable about the court's discussion, given that C. v. C. was a pre-judgment case, is that it nowhere referred to the alleged "post-judgment rule.” Moreover, at no point does the court suggest that there was no right to access before completion of the proceedings; it simply referred to the state of the law governing access to trial records after completion of the proceedings because it was confronted with a post-trial pre-judgment case.

Similarly in Birnbaum v. Wilcox-Gay Corp., 17 F.R.D. 133, 139 (N.D.Ill.1953), the court stated, in dicta, that ”[t]he records of proceedings of a court are not required to be open to public inspection until after the trial." (Emphasis added.) Although the majority is meticulous in insisting that recent cases that do not expressly provide for pre-judgment access to trial exhibits cannot be read to imply such a right, maj. op. at 1336 n. 8, the majority oddly believes that the "post-trial” language of Birnbaum and C. v. C. must be liberally construed to refer to a "post-judgment” rule. Even assuming the majority’s reading, however, Birnbaum is readily distinguishable from our case. Once again, the litigation concerned the trial court’s power to seal pre-trial pleadings and not trial exhibits. Indeed, the Birnbaum court only sealed the pleadings on a provisional basis so that it might have the opportunity to determine whether they were frivolous. Thus at most Birnbaum stands for the proposition that a court may enter a provisional seal before the trial has begun to prevent public access to potentially frivolous complaints. It says nothing about access to exhibits in causes that actually come to trial.

. Thus in Werfel v. Fitzgerald, 23 A.D.2d 306 , 260 N.Y.S.2d 791, 794-95 (1965), the passage cited by the majority reads: "[Although some courts have provided for pre-trial access,] [o]n the other hand, other American courts held that records prior to trial were not available to public inspection until there were proceedings in open court, following which the records were accessible to all persons, whether they had a special interest or not[.]” (Citation omitted; emphasis added.)

Similarly, In re Sackett, 136 F.2d 248, 249 (Ct.Cus. & Pat.App.1943), stated, in the passage cited by the majority, that in addition to distinguishing between official records in general and judicial records in particular, “[distinction has also been made in some cases between the right to inspect judicial records before trial and the right to inspect the record of the court after trial.” (Emphasis added.) Although the court does not appear to have focused on the question of mid-trial access, it is also clear that it did not understand the common law to have enunciated a "post-judgment” rule.

Finally, the more recent libel cases cited by the majority simply do not refer to a post-judgment rule. On the contrary, Sanford v. Boston Herald Traveler Corp., 318 Mass. 156 , 61 N.E.2d 5, 6 (1945), states that “the doctrine long established in this Commonwealth is that the right to report proceedings in the court does not extend to reporting accusations contained in papers filed by a party and not yet brought before a judge or magistrate for official action.” (Emphasis added.) And in Newell v. Field Enterprises, Inc., 91 Ill.App.3d 735 , 47 Ill.Dec. 429 , 415 N.E.2d 434 (1980), the court does not assert that the contemporary majority rule is a post-judgment rule. But see maj. op. at 1336 n. 8. Rather *1351 it states that the majority view of the judicial records privilege is that it does not attach until "some judicial action” has been taken. The language of the case does not indicate whether the court thought that "judicial action” referred only to final judgments or whether it might refer to evidentiary rulings or preliminary motions. When read against the facts of that case, however, the meaning of the Newell court is clear. Newell concerned the issue of whether the privilege attached to publication of pre-trial pleadings. Thus in evaluating conflicting precedent the Newell court was simply seeking to determine whether the privilege applied pre-trial (as the emerging trend of cases would have it) or whether it did not cover such pleadings (as was the case under the older cases). The question of restricting the privilege to post-judgment publications simply did not present itself.

. See text supra at 1342-43.

. Indeed, at least one circuit has suggested that these functional concerns are more compelling in civil cases because the criminal defendant’s right to a fair trial, free of prejudicial publicity, is not implicated. Wilson v. American Motors Corp., 759 F.2d 1568, 1571 (11 Cir.1985). And although some might argue that because the state is always a party to criminal cases there is a stronger presumption, of publicity surrounding such proceedings, the Supreme Court has found such a distinction to be of dubious value. See Gannett Co. v. DePasquale, 443 U.S. 368 , 386-87 n. 15, 99 S.Ct. 2898 , 2908-09 n. 15, 61 L.Ed.2d 608 (1979) ("Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. While the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. * * * Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”) Only one Supreme Court Justice has suggested that the First Amendment right of access to trial proceedings does not apply to civil cases. See *1352 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 , 102 S.Ct. 2613, 2622 , 73 L.Ed.2d 248 (1982) (O’Connor, J., concurring in judgment).

. In its historical discussion the majority hints at another policy reason for supporting a post-judgment rule: vindication of private interests in reputation and privacy. Presumably, by delaying access until a judgment has been issued the court will be able to prevent publication of unfounded allegations absent a legal determination reflecting on the weight of such data. Maj. op. at 1335. But even if such a view would provide grounds for limiting the common law privilege in libel cases, it is a wholly one-sided resolution of the issue of public access. When facing the question of access the courts have sought to balance individual privacy interests and the public interest in learning of the grounds of judicial decisionmaking. By contrast, under the majority’s view the public interest would be swept aside in the hope of a more complete vindication of individual privacy interests. Such a justification sweeps too far. Under such a rationale public access to the trial itself ought to be restricted until a judgment has been rendered. Unwilling to face such a patently unacceptable result, the majority never fully articulates the grounds for its preference for a post-judgment rule and instead rests its conclusion on its questionable reading of the view of a Michigan court at the turn of the century. Maj. op. at 1334 n. 7.

. Nor do the standards provided by the other Courts of Appeals that have considered this question yield a single standard. See, e.g., Continental Illinois Securities, supra note 3, 732 F.2d at 1313 (ad hoc balancing); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir.1983) (assuming the right to access unless the seal could be shown to be (a) a mere time, place, and manner restriction, or (b) required because of the sensitive nature of particular documents). The Supreme Court has also suggested that time, place, and manner restrictions would include those rules necessary to maintain order or decorum in the courtroom. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 581 n. 18, 100 S.Ct. 2814 , 2830 n. 18, 65 L.Ed.2d 973 (1980) (plurality opinion). Because delay in access can result in such serious First Amendment harm, I do not find that such a seal is a mere time, place, and manner restriction, to be sustained if it is merely “reasonable” under the circumstances. See Richmond Newspapers, 448 U.S. at 600 , 100 S.Ct. at 2840 (Stewart, J., concurring).

. See note 10 supra and accompanying text.

. Thus my First Amendment analysis, like my analysis of appellants’ federal common law rights, see note 11 supra, would not require disruption of ongoing trials. Rather the District Court would simply deny motions to extend provisional seals to trial exhibits absent a document-by-document justification. It is true that, under the particular circumstances of this case, Mobil’s "pre-trial” motion was filed on the eve of trial. Consequently, it might be argued that there was no real opportunity for the court to require Mobil to file a document-by-document justification without disrupting the trial. Such an objection, however, passes over a critical fact: there is no reason why the District Court ought not to have made Mobil bear the burden of its eve-of-trial motion. Had the District Court determined that a full-blown analysis of the contested documents was impractical at this late date, it need merely have denied Mobil’s motion and unsealed the record. As with the public’s common law interest in access, there is no reason why the public’s First Amendment interests should suffer because Mobil only acted at the eleventh hour to extend the terms of the original protective order.

. To the degree that the public interest is strongest as to those documents actually offered in evidence, Mobil would have to bear the burden of justifying the confidentiality of documents as to which there was little or no First Amendment value. The alternative, however, would be to require the District Court to engage in disruptive mid-trial motions. Consequently, the judicial interest in efficient litigation cut against the interests of the party seeking to seal the evidentiary exhibits in a civil hearing, forcing them to justify the confidentiality of all designated trial exhibits and not merely admitted or introduced trial exhibits.