Merry Reed v. Kevin Devlin ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1632
______________
MERRY REED; PHILADELPHIA BAIL FUND
v.
FRANCIS BERNARD ARRAIGNMENT COURT
MAGISTRATE JUDGES;
SHEILA BEDFORD; KEVIN DEVLIN; JAMES O'BRIEN;
CATERIA MCCABE;
ROBERT STACK IN THEIR OFFICIAL CAPACITIES;
PRESIDENT JUDGE
PATRICK DUGAN IN HIS OFFICIAL CAPACITY;
SHERIFF OF PHILADELPHIA
Francis Bernard, Sheila Bedford, Kevin Devlin,
James O'Brien, Cateria McCabe and Robert
Stack,
Appellants
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-19-cv-03110)
District Judge: Honorable Harvey Bartle, III
______________
Argued June 30, 2020
BEFORE: KRAUSE, PHIPPS, and GREENBERG, Circuit
Judges.
(Filed: September 29, 2020)
______________
Michael L. Berry
Paul J. Safier
Shawn Summers
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
Robert D. Friedman
Nicolas Y. Riley (argued)
Georgetown University Law Center
Institute for Constitutional Advocacy
and Protection
600 New Jersey Avenue, N.W.
Washington, DC 20001
Attorneys for Appellees
Aaron J. Marcus
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102
2
Matthew Stiegler
7145 Germantown Avenue
Suite 2
Philadelphia, PA 19119
Katie Townsend
The Reporters Committee for
Freedom of the Press
1156 15th Street. N.W.
Suite 1020
Washington, DC 20005
Attorneys for Amici Curiae
Michael Daley (argued)
Megan L. Davis
Supreme Court of Pennsylvania
Administrative Office of Pennsylvania Courts
1515 Market Street
Suite 1414
Philadelphia, PA 19102
Attorneys for Appellants
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
3
This matter comes on before this Court on the appeal of
defendant-appellants Arraignment Court Magistrate Judge
Francis Bernard, et al. (“appellants” or the “Arraignment
Magistrates”). Appellants appeal from the District Court’s
February 25, 2020 Order granting summary judgment in favor
of appellee Philadelphia Bail Fund (“appellee” or the “Bail
Fund”) and holding that certain state and local rules precluding
verbatim recording of bail proceedings violate the First
Amendment. For the reasons that follow, we will reverse.
II. STATEMENT OF FACTS AND PROCEDURAL
HISTORY
An individual arrested1 in Philadelphia typically is
brought before an Arraignment Court Magistrate (hereinafter,
“bail magistrate”) at the City’s Criminal Justice Center for a
preliminary arraignment (hereinafter, “bail hearing”).2 Bail
1
After an arrest, law enforcement processes the arrestee and
creates a police arrest report. Thereafter, Pretrial Services
interviews the arrestee and inquires into certain biographical
information, including the arrestee’s residence, employment,
health, and education level. The results of that interview are
compiled into a report, which then is submitted to the bail
magistrate prior to the bail hearing.
2
The arrestee ordinarily is confined at a Philadelphia police
precinct. The bail magistrate, prosecutor, defender, and (if
applicable) the public are located in a bail hearing courtroom in
the basement of the Philadelphia Criminal Justice Center. The
arrestee appears in court via an audio-visual link on a monitor,
and all participants are able to hear and see each other via the
4
hearings may be held twenty-four hours per day, seven days per
week, three-hundred and sixty-five days per year. On average,
each bail hearing lasts approximately four minutes.
At the bail hearing, the bail magistrate hears oral
argument from the prosecutor and defender, considers certain
statutory factors and biographical information, and, if
appropriate, sets bail. If an arrestee seeks review of the bail
magistrate’s decision, an emergency municipal court judge is
available to conduct an immediate de novo review by telephone.
The bail hearings are open to the public, but transcripts
of the hearings are not made and audio recordings are not
available to the public.3 Following the bail hearing, however,
audio-visual link.
3
The bail hearings are audio-recorded but for “internal review
purposes” only. (JA 061.) It is undisputed that these unofficial
audio recordings are not created in accordance with
Pennsylvania’s First Judicial District Digital Recording
Program, which governs the production of official court
recordings. Moreover, the quality of these unofficial recordings
and whether they adequately and accurately capture the contents
of bail hearings is questionable. Indeed, all parties agreed to
admit as part of the record that the unofficial audio recordings
are of “inferior quality and often hard to hear”. (JA 012; see
also JA 012 n.5.) Thus, the fact that the Philadelphia Municipal
Court creates unofficial audio recordings of the bail hearings
cannot be regarded as a basis on which to hold that verbatim
documentation of bail hearings already exists. Nevertheless,
we realize that the dissent makes much of the fact that, in order
5
the public may access and obtain copies of court documents
related to the hearing, including the bail bond, the criminal
complaint, the bail hearing subpoena, and a bail appeal report if
the arrestee appealed. Those documents, however, do not
include information such as the parties’ arguments and the bail
magistrate’s reasoning for his or her decision.
The appellee Bail Fund is a nonprofit organization that
seeks to enforce what it regards as justice within Philadelphia’s
bail system. Among other things, the Bail Fund sends
volunteers into Philadelphia bail hearings to observe and report
on the proceedings and uses information volunteers compile to
produce public reports and educate Philadelphia citizens and
government officials.
The Bail Fund avers that “[i]ts volunteers take extensive
notes on the proceedings but the rapid, back-to-back, jargon-
filled nature of the hearings makes it impossible for them to
document every point or word exchanged.” (Bail Fund (“BF”)
Br. at 6.) Because of that limitation, it sought permission to
create its own audio recordings of bail hearings. The President
Judge of the Philadelphia Municipal Court denied that request,
noting that state rules prohibit the public from recording bail
hearings.
to comply with the District Court’s order, the Municipal Court
has begun to make available certified transcripts of bail hearings
based upon these recordings. See e.g., Dissent at 24 n.7.
(Status Rpt., Exh. A, ECF No. 38.) This retrospective
discussion elevates results over process and loses sight of the
fact that the issue before us is whether the First Amendment
mandated their creation at the outset, not whether they can be
made.
6
Subsequently, the Bail Fund initiated this action, raising
an as applied First Amendment challenge to the following three
rules (hereinafter and collectively, the “challenged Rules”):
Pennsylvania Rule of Criminal Procedure 112(C); Pennsylvania
Rule of Judicial Administration 1910(B); and Philadelphia
Municipal Court Arraignment Court Magistrate Rule 7.09.4 The
District Court in a comprehensive opinion granted summary
judgment in the Bail Fund’s favor, holding that the challenged
Rules infringed on the Bail Fund’s First Amendment right of
access to the bail hearings so long as the Philadelphia Municipal
Court did not make official audio recordings or transcripts of the
hearings available to the public. Consequently, it ordered that
the Bail Fund must be allowed to audio-record bail hearings so
long as the Philadelphia Municipal Court did not create publicly
available transcripts or audio recordings of those proceedings.
III. DISCUSSION
The District Court had jurisdiction under 28 U.S.C. §
1331, and we have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over a district court’s summary
4
Pennsylvania Rule of Criminal Procedure 112(C) prohibits the
public from making “stenographic, mechanical, or electronic
recording[s]” of criminal proceedings; Pennsylvania Rule of
Judicial Administration 1910(B) states that “judges shall
prohibit broadcasting, televising, recording or taking
photographs in the courtroom”; and Local Arraignment Court
Magistrate Rule 7.09 specifically directs bail magistrates to
“prohibit broadcasting, televising, recording, or taking
photographs in the [c]ourtroom.”
7
judgment ruling. See, e.g., Melrose, Inc. v. City of Pittsburgh,
613 F.3d 380, 387 (3d Cir. 2010).
The issue before this Court is whether the challenged
Rules as applied to the Bail Fund impede its First Amendment
right of access to Philadelphia bail hearings by precluding the
Bail Fund from obtaining a verbatim record of those
proceedings. The Arraignment Magistrates argue there is only a
constitutional right of access to courtroom proceedings and
documentation resulting from those proceedings, not a right to
make audio recordings of courtroom proceedings. Further, they
contend that because the states have the freedom to make laws
pursuant to their own policy choices, the Pennsylvania court
system was within its right to prohibit audio recordings. (See
Arraignment Magistrates (“AM”) Br. at 19.) Thus, per the
Arraignment Magistrates, the Bail Fund’s constitutional right of
access has been satisfied because it has the ability to attend and
observe bail hearings; take notes at those hearings; obtain bail
information and the criminal complaint immediately after a bail
hearing; access online dockets, which include bail information;
and obtain bulk data5 pertaining to the bail hearings.
Accordingly, the Arraignment Magistrates contend that the Bail
Fund seeks to extend the First Amendment right of access into a
right to make or require the creation of audio recordings, but
that “[j]ust because some states make different policy choices”
the claimed First Amendment right does not exist. (AM Reply
Br. at 1; see also AM Br. at 19-20.)
5
The bulk data for each case includes 44 different categories of
information, including the bail type, amount, and whether it was
posted, as well as data regarding the individual defendant, such
as his or her race, sex, age, and residence zip code.
8
The Bail Fund argues that it does not seek an “unfettered
right” to audio-record all judicial proceedings; rather, it only
seeks to audio-record bail hearings because those hearings occur
off-the-record and there is no verbatim documentation of those
proceedings available to them. (BF Br. at 2.) Per the Bail Fund,
although its volunteers are permitted to take handwritten notes,
“it [is] impossible for [the volunteers] to document every point
or word exchanged” during the bail hearings. (BF Br. at 6.) It
further avers that the records available to it, such as bulk data
information, are inadequate because they lack essential
information, such as the parties’ arguments and the bail
magistrate’s reasoning for his or her decision. Thus, the Bail
Fund contends that the challenged Rules are unconstitutional
because they prohibit it from obtaining a verbatim record of the
bail proceedings. We disagree.
At the outset of our analysis we observe that it is
undisputed that the Bail Fund is able physically to attend and
take handwritten notes at bail hearings. In fact, the Bail Fund
concedes that “[a]ll of the [bail] hearings are held in open court
and members of the press and the public are free to attend and
take notes on the proceedings.” (BF Br. at 5.) Further, the
parties agree that the First Amendment right of access to the
courtroom includes a right to access to documents resulting
from those court proceedings. See United States v. Antar, 38
F.3d 1348, 1361 (3d Cir. 1994) (stating that “the First
Amendment right of access must extend equally to transcripts as
to live proceedings”).
What is in dispute is whether the right of access includes
an affirmative requirement that the judiciary create or allow the
creation of verbatim records of its proceedings. We hold that
precedent does not mandate that it does; rather, the law takes a
9
more modest approach and requires that judicial records—
assuming they exist—are generally available to the public. Cf.
Nixon v. Warner Comm’cs, Inc., 435 U.S. 589, 597, 98 S. Ct.
1306, 1312 (1978) (discussing the common law right of access
to judicial records).6 Here, by announcing a requirement that
the Philadelphia Municipal Court either create and release
6
The dissent’s contention that our opinion confuses the First
Amendment right of access with its common law predecessor is
baseless. See Dissent at 36-38. Although this
mischaracterization may bolster an overly broad reading of our
First Amendment precedent, the dissent finds no support for its
assertion in our analysis, as exemplified by its reliance on our
reference to Nixon, 435 U.S. at 597, a citation clearly preceded
by a “cf.” signal and, importantly, recognizing the permissive
nature of the common law right of access to judicial documents.
See also Antar, 38 F.3d at 1361 (recognizing that the “common
law right has played a crucial role in the development of First
Amendment jurisprudence”). Moreover, in arguing that we
conflate the First Amendment right of access with the District
Court’s fashioned remedy, see Dissent at 38-40, the dissent
emphatically contends that the First Amendment right of access
is, at heart, a right to information, a point not in dispute, see
Dissent at 38. Yet, as noted, even under the challenged Rules,
the Bail Fund maintains access to a mass of information, not
merely access to the courtroom itself and the notes its volunteers
take at the bail hearings, but also the criminal complaint, court
docket, and bulk data information. The Bail Fund is able to, and
indeed has, disseminated this information to the public. Of note
here, however, is that the Bail Fund seeks a specific kind of
information—a verbatim record (see Oral Arg. Tr. 37:16-18)—
and it is on this issue that we focus.
10
verbatim recordings or allow the Bail Fund to make its own
audio recordings, the District Court broadened the First
Amendment right of access.7 But neither the Constitution nor
judicial precedent provides for such a requirement, and if we
established such a requirement, we would be making new law.
The Supreme Court’s and our decisions in Antar and
Press-Enterprise do not alter our decision. See Antar, 38 F.3d
1348; Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.
Ct. 2735 (1986). In Antar, we held that, assuming there are
transcripts of a proceeding, the First Amendment right of access
extends equally to the transcripts as well as the courtroom
proceedings giving rise to those transcripts. See 38 F.3d at
1361. In Press-Enterprise, the Supreme Court similarly
determined that the district court erred in sealing the transcript
of a criminal preliminary hearing. See 478 U.S. at 13, 106 S.
Ct. at 2743. These cases, which concern restricted access to
documentation already in existence, are inapposite to the issue
currently before us which concerns the creation of documents or
audio recordings. To be sure, we are not suggesting that the
Bail Fund would not typically be entitled to transcripts of bail
hearings had the Philadelphia Municipal Court created them;
rather, we hold today that the First Amendment does not
mandate either their creation or the allowance or their creation.
The same principle presumably applies to mandating the
creation of audio recordings.
Nor does our holding in Whiteland Woods, LP v.
Township of West Whiteland, 193 F.3d 177 (3d Cir. 1999)
stand for the proposition that courts must create or allow the
7
We agree that the First Amendment right of access applies to
bail hearings—a matter that was not in dispute, but nonetheless
had not yet been addressed by this Court. See Dissent at 13.
11
creation of verbatim records of their proceedings. In Whiteland
Woods, we considered whether a real estate developer’s First
Amendment right of access was infringed when it was
prohibited from videotaping a planning commission meeting.
See id. at 178. Ultimately, we determined that the Township’s
videotaping ban did not “meaningfully interfere” with the
developer’s First Amendment right of access, and in so holding,
we noted that the public had “alternative means of compiling a
comprehensive record.” Id. at 183; see also id. at 184.
Based upon the above language, the Bail Fund infers that
courts are required to create or allow the creation of verbatim
documentation of the proceedings so that a “comprehensive
record” may exist. (BF Br. at 20.) As such, the Bail Fund
contends that because there is no verbatim recordings of bail
hearings, it has no means of obtaining a complete and
comprehensive record of those proceedings. (See BF Br. at 19-
21.)
The Bail Fund’s argument fails in two respects. First, it
ignores the circumstance that the standard we articulated in
Whiteland Woods, and the essential inquiry for the Court to
consider, is meaningful interference; to wit: we must consider
whether the challenged Rules meaningfully interfere with the
public’s ability to inform itself about bail hearings. Here, the
Bail Fund is able to attend bail hearings and take handwritten
notes at those hearings. That the Bail Fund’s volunteers may
not be able to capture every word spoken does not meaningfully
interfere with the public’s ability to inform itself of the
proceedings. In fact, the Bail Fund successfully informs the
public about matters occurring during bail hearings by
publishing reports on its observations and findings. Moreover,
the public may obtain documentation relating to the bail
hearings, such as the criminal complaint and bulk data
12
information, as well as access online dockets.
Second, the Bail Fund erroneously equates
“comprehensive record” with “verbatim record”. The Bail Fund
contends that under the instant circumstances those terms are
synonymous because in Whiteland Woods we noted that the real
estate developer’s other means of compiling a comprehensive
record included methods that would allow for verbatim
transcription. That argument, however, not only relies on dicta,
but is founded on an erroneous assumption we never articulated.
In fact, in Whiteland Woods, we approvingly cited Combined
Communications Corp. v. Finesilver, 672 F.2d 818, 821 (10th
Cir. 1982)8 and Garrett v. Estelle, 556 F.2d 1274, 1279 (5th Cir.
1977)9 because in those matters, “members of the press were
8
In Finesilver, the Court of Appeals for the Tenth Circuit
denied a petition for a writ of mandamus that sought to require a
district court to allow television coverage of settlement
negotiations taking place at a federal courthouse. See
Finesilver, 672 F.2d at 819. The district court allowed the press
to be present during the negotiations but prohibited the
placement of television cameras in the meeting rooms. Id. at
820. In denying the petition, the court of appeals noted that the
petitioner “was not denied access to the meetings” because “[i]ts
representative was free to attend, take notes, and disseminate
any information obtained.” Id. at 821.
9
In Garrett, the Court of Appeals for the Fifth Circuit noted that
the press and the public were permitted to witness prisoner
executions, but that the press was not permitted to film the
executions because, among other things, “the [F]irst
[A]mendment[] does not impose upon government ‘the
affirmative duty to make available to journalists sources of
13
permitted to attend the meetings and take notes” as well as had
“other methods of informing the public” beyond electronic
recordings. See Whiteland Woods, 193 F.3d at 183. Thus, we
reject the Bail Fund’s attempt to create a standard centered on
whether or not there exists a verbatim record.
We acknowledge that a verbatim record may further
assist the Bail Fund with its mission. Our role, however, is not
to determine whether it would be a good policy to require the
creation of on-the-record bail hearings and the dissemination of
a transparent and verbatim record of those hearings. Rather, we
must determine the parameters of the First Amendment and
whether the creation of such verbatim recordings is
constitutionally mandated. Put simply, just because something
may be a good policy does not mean that it rises to the level of a
constitutional right. Accordingly, we will reverse the District
Court’s February 25, 2020 Order finding the challenged Rules
unconstitutional and entering summary judgment in favor of the
Bail Fund. We will remand the case to that Court to enter
summary judgment in favor of the Arraignment Magistrates.
information not available to members of the public generally.’”
Garrett, 556 F.2d at 1279 (quoting Pell v. Procunier, 417 U.S.
817, 834-35, 94 S. Ct. 2800, 2810 (1974)).
14
Reed v. Bernard
No. 20-1632
KRAUSE, Circuit Judge, dissenting.
With the Majority’s holding today, what we give with
one hand, we take back with the other. All parties and mem-
bers of the panel agree that the First Amendment right of access
applies to bail hearings. Yet the Majority proceeds to eviscer-
ate that right: Despite Supreme Court precedent and our own
case law holding that the public is entitled to a complete and
verifiable record of proceedings to which the right of access
attaches, the Majority allows the government—having refused
to produce any transcript or audio recording of its own—to also
prohibit the public from making even an unobtrusive recording
in circumstances where there is no other means of obtaining a
complete and verifiable record of what transpired. The Major-
ity thus deprives the public of access to vital information about
one of the most urgent and vigorously debated issues in the
modern criminal justice arena. And, even more alarming, its
ratio decidendi is not limited to bail hearings but applies to
every proceeding to which the right of access attaches with
grave consequences for public discourse and confidence in
government institutions.
This troubling result reflects a fundamental misunder-
standing of the First Amendment: Access means more than the
ability to “squeeze through the [courthouse] door.” United
States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994). It means
the public’s right of “access to information” about “what oc-
cur[s]” in the halls of justice, “not only by witnessing a pro-
ceeding firsthand, but also by learning about it through a sec-
ondary source.” Id. And where a restriction “meaningfully
interferes with the public’s ability to inform itself of the pro-
ceeding” by preventing the compilation of an “accurate” and
“comprehensive record,” Whiteland Woods, L.P. v. Township
of West Whiteland, 193 F.3d 177, 183 (3d Cir. 1999), it is un-
constitutional unless narrowly tailored to serve an overriding
interest.
These settled principles should be leading us to affirm
the narrow and targeted relief granted by the District Court.
Each week, hundreds of bail hearings are held around the clock
in the bowels of Philadelphia’s Criminal Justice Center. There
are no written submissions, court reporters, or transcripts to
capture the arrestees’ statements, the parties’ arguments, or the
magistrates’ reasoning. Nor is there any other reliable way for
the public to gain access to that critical information. State law
allows a magistrate, prosecutor, or arrestee to record a bail
hearing—but only “for subsequent use in [the] case,” not for
“public[] . . . disseminat[ion] in any manner.” Pa. R. Crim. P.
112(D). The Municipal Court produces audio recordings of
every bail hearing that, it concedes, are of sufficient quality to
be used to produce certified transcripts—but it precludes the
public from accessing those recordings and uses them only for
internal purposes, including “monitor[ing] the performance of
the magistrates.” Phila. Bail Fund v. Arraignment Ct. Magis-
trate Judges, 440 F. Supp. 3d 415, 418–19 (E.D. Pa. 2020).
And a handful of members of the public can attend the pro-
ceedings—but without notice of any arrestee’s hearing before
it is called and without the ability to use equipment, no matter
how unobtrusive, to record what is said.
So the Bail Fund, whose mission is to collect compre-
hensive information about Philadelphia bail hearings to be
shared with city officials and the public, must send volunteers
2
into the Criminal Justice Center at all hours of the day and night
armed only with a pen and paper—and a hope that their furious
scribblings during the hearings they happen to witness will pro-
duce useful data. These circumstances “meaningfully inter-
fere[]” with the public’s right to access information about bail
hearings. Whiteland Woods, 193 F.3d at 183. And the justifi-
cations offered in support of the challenged restrictions are
concededly unsubstantiated and poorly tailored. For these rea-
sons, the District Court was correct in finding a First Amend-
ment violation and, exercising its equitable discretion, in craft-
ing a remedy: Going forward, the Municipal Court could make
its audio recordings or transcripts created from those record-
ings available to the public, or else the Fund would be allowed
to produce its own audio recordings.1 We should affirm the
District Court’s thorough and sensible decision.
In reversing, the Majority neglects that the First Amend-
ment protects the right to comprehensive and accurate infor-
mation and glosses over undisputed evidence that the chal-
lenged restrictions meaningfully interfere with that right. In-
stead, it fixates on a more metaphysical inquiry: whether the
First Amendment right is limited to “documentation already in
1
The District Court’s chosen remedy reflects a meas-
ured approach to implementing the First Amendment right at
issue. In particular, the Court ordered that the Bail Fund “may
make its own audio recordings of bail hearings in the Philadel-
phia Municipal Court with silent handheld recorders beginning
on June 9, 2020 but only if the Philadelphia Municipal Court
does not make available by that time official audio recordings
or transcripts of bail hearings of the same type and quality and
in the same manner that are made available for other types of
judicial proceedings.” J.A. 125.
3
existence” or instead “includes an affirmative requirement that
the judiciary create or allow the creation” of records (emphasis
omitted). Maj. Op. 9, 11. That fixation leads the Majority
away from governing precedent, which requires that we focus
on the effect of government restrictions on the access to com-
prehensive information. It also conflates the First Amendment
right of access with a distinct common-law right and confuses
a constitutional violation with the remedies available to redress
that violation. Because neither precedent nor logic supports
today’s outcome, I respectfully dissent.
I.
I begin with the First Amendment right of access’s ani-
mating principles and scope, explaining why it covers more
than mere physical attendance of proceedings. I then explain
why, as we all agree, that right covers bail hearings.
A.
Under established precedent from the Supreme Court,
this Circuit, and other Courts of Appeals, we should affirm the
decision of the District Court. I address each in turn.
1.
The First Amendment right of access serves vital inter-
ests: It “protect[s] the free discussion of governmental affairs”
and “ensure[s] that . . . individual citizen[s] can effectively par-
ticipate in and contribute to our republican system of self-gov-
ernment.” Globe Newspaper Co. v. Superior Ct., 457 U.S. 596,
604 (1982) (citation omitted). By “subjecting the police, pros-
ecutors, and judicial processes to extensive public scrutiny and
4
criticism,” the right also plays an essential role in “effective
judicial administration.” Sheppard v. Maxwell, 384 U.S. 333,
350 (1966). And the right reaches its zenith when it comes to
criminal prosecutions, which are matters of the “high[est] con-
cern and importance to the people.” Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion).
Crucially, the First Amendment demands access not for
access’s own sake, but “to ensure that th[e] constitutionally
protected discussion of governmental affairs is an informed
one.” Globe Newspaper, 457 U.S. at 605 (emphasis added)
(internal quotation marks omitted). The essence of the right,
in other words, is a commitment that the public be able to “ac-
quir[e] information about” judicial proceedings, and it is that
information which “contribute[s] to public understanding of
the rule of law and to comprehension of the functioning of the
entire criminal justice system.” Richmond Newspapers, 448
U.S. at 572–73 (plurality opinion) (second alteration in origi-
nal) (citation omitted); see Press-Enter. Co. v. Superior Ct.
(Press-Enterprise I), 464 U.S. 501, 513 (1984) (the First
Amendment protects “access to information” about what hap-
pens during judicial proceedings).2
2
Even Justices writing in dissent have understood the
First Amendment right in these terms. See, e.g., Press-Enter.
Co. v. Superior Ct. (Press-Enterprise II), 478 U.S. 1, 18 (1986)
(Stevens, J., dissenting) (“[T]he First Amendment embraces a
right of access to information about the conduct of public af-
fairs.”); Globe Newspaper, 457 U.S. at 615 (Burger, C.J., dis-
senting) (focusing on whether the government “denied the pub-
lic or the media access to information as to what t[ook] place
5
In multiple decisions addressing the First Amendment
right of access, the Supreme Court has made clear that the pub-
lic’s right to information encompasses modes of compiling
such information beyond mere attendance of proceedings.
Begin with Press-Enterprise I. There, the Court held that the
First Amendment gave the public the right to access written
transcripts of lengthy voir dire proceedings, a portion of which
had been open to the public. 464 U.S. at 503, 512–13. Grant-
ing the public “access to [the] information” in the transcripts,
it explained, was the best way to “enhance[] both the basic fair-
ness of the criminal trial and the appearance of fairness so es-
sential to public confidence in the system.” Id. at 508, 513.
Without a publicly available transcript, the Court cautioned, it
would be “difficult for the[] [public] to accept what [it] [was]
prohibited from observing.” Id. at 509 (quoting Richmond
Newspapers, 448 U.S. at 572 (plurality opinion)).
The Court continued down the same path in Press-En-
terprise II, which involved a preliminary hearing in a criminal
case. Press-Enter. Co. v. Superior Ct. (Press-Enterprise II),
478 U.S. 1, 3 (1986). Once again, the Court held that the First
Amendment entitled the public to a transcript of that hearing.
See id. at 3, 13–15. The value in public access to such after-
the-fact information, the Court explained, is “that people not
actually attending trials can have confidence that standards of
fairness are being observed.” Id. at 13 (quoting Press-Enter-
prise I, 464 U.S. at 508). Only then are the interests underlying
the First Amendment right—enhancing “the appearance of
fairness so essential to public confidence in the system,”
at trial,” including in the form of “the trial transcript” and
“other sources of information about the [relevant] testimony”).
6
“giv[ing] assurance that established procedures are being fol-
lowed and that deviations will become known,” and supporting
“the community therapeutic value of openness”—fully served.
Id. (internal quotation marks and citations omitted).
In no case has the Supreme Court endorsed a narrow
view of the First Amendment right limited to only one mode or
form of access. Rather, the Court has recognized that the
Amendment requires access to sources of information beyond
in-person attendance that are capable of broader dissemination
and that accurately capture the actions of the third branch of
government.
2.
Until today, this Circuit has faithfully applied these
principles. In multiple decisions, we have held that the First
Amendment right of access covers not only in-person attend-
ance of proceedings but also subsequent access to a verifiable,
accurate, and comprehensive record of what happened during
those proceedings.
Our first extensive treatment of these issues came in An-
tar. Like Press-Enterprise I, Antar involved voir dire proceed-
ings. 38 F.3d at 1350. Unlike in Press-Enterprise I, in Antar
the proceedings were not closed; although reporters had to
leave the courtroom “to free up additional seats,” members of
the public were able to attend and observe. Id. at 1351. But in
deciding whether it was constitutional to seal the transcript of
the voir dire proceedings, we made clear that “the fact that the
courtroom was open during those [proceedings] is of little im-
port.” Id. at 1359. Instead, “[i]t is access to the content of the
proceeding—whether in person, or via some form of documen-
tation—that matters.” Id. at 1359–60 (emphasis added). As a
7
result, “the right of access to voir dire examinations encom-
passes equally the live proceedings and the transcripts which
document those proceedings,” id. at 1359, and an unjustified
decision to seal the transcripts violated the First Amendment,
id. at 1361, 1364.
Of particular relevance here, Antar instructs that for
purposes of the First Amendment, “documentary access is not
a substitute for concurrent access . . . and vice versa.” 38 F.3d
at 1360 n.13. “[O]penness,” we explained, “is ongoing—a sta-
tus rather than an event.” Id. at 1360. And because “the heart
of the Supreme Court’s right of access analysis is the convic-
tion that the public should have access to information,” it
would be illogical to limit access “only . . . to those who are
able to be bodily present in the courtroom itself.” Id.; see id.
at 1360 n.14. Rather, “[t]rue public access to a proceeding
means access to knowledge of what occurred there,” and such
access “is served not only by witnessing a proceeding
firsthand, but also by learning about it through a secondary
source.” Id. at 1360. Without access to an accurate record of
“what occurred” during the proceedings, the press would be
unable to “function[] as surrogates for the public,” and the pub-
lic in turn would lose access to the “broad[] dissemination” of
information required for it to “monitor, observe, and comment
upon the activities of the judge and the judicial process.” Id.
at 1360–61 (citation omitted).
Antar’s bottom line is clear: “It would be an odd result
indeed were we to declare that our courtrooms must be open,
but that transcripts of the proceedings occurring there may be
closed”—“for what exists of the right of access if it extends
only to those who can squeeze through the door?” 38 F.3d at
1360; see id. at 1360 n.16 (emphasizing that the values
8
underlying access “can be fully vindicated only if the oppor-
tunity for personal observation is extended to persons other
than those few who can manage to attend . . . in person” (quot-
ing United States v. Criden (Criden I), 648 F.2d 814, 822 (3d
Cir. 1981))).
Antar was not our last declaration that the right of ac-
cess is “concerned with information, not with a particular
means of communication,” 38 F.3d at 1360 n.14. We returned
to the issue in Whiteland Woods, which recognized a First
Amendment right of access to meetings of a township planning
commission.3 193 F.3d at 180–81. Whiteland Woods again
3
In a later decision, we suggested this aspect of White-
land Woods might have been dicta. See N. Jersey Media Grp.,
Inc. v. Ashcroft, 308 F.3d 198, 214 (3d Cir. 2002). It was not.
In Whiteland Woods, a developer sought to videotape one of the
commission’s meetings but was denied. 193 F.3d at 178. After
the township “agreed not to enforce the [videotaping] ban at fu-
ture meetings,” the developer sued for damages under 42 U.S.C.
§ 1983. Id. One obstacle standing in the way of the developer’s
damages claim was the argument that the First Amendment right
of access did not apply at all to public proceedings of that kind.
But after applying our experience-and-logic test, see infra Sec-
tion I.B, we held that the developer “had a constitutional right
of access” to planning commission meetings. Whiteland
Woods, 193 F.3d at 180–81. Although ultimately we rejected
the damages claim on narrower grounds, see id. at 184, White-
land Woods’s analysis of the right of access’s application re-
mains an integral part of that decision, one not subject to eras-
ure by a subsequent panel’s comment. See Pardini v. Alle-
gheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)
(where a later panel decision “is inconsistent with [an earlier
9
underscored “that the Constitution protects the right to receive
information,” particularly “to protect the free discussion of
governmental affairs.” Id. at 180 (emphasis added) (citations
omitted). And while we rejected the plaintiff’s bid to elevate
one mode of collecting information above all others by assert-
ing a “right to videotape public meetings of [the] commission,”
we did so only because “other effective means of recording the
proceedings [we]re available.” Id. Specifically, because all
interested members of the public could “compile an accurate
record of the proceedings” through notetaking, “audio record-
ing devices,” and “stenographic recording,” a video recording
would not add anything “uniquely valuable” to the mix, which
meant the videotaping ban did not “meaningfully restrict[]” the
plaintiff’s right of access. Id. at 183.
Whiteland Woods laid down clear markers for future
cases. While the First Amendment “does not require states to
accommodate every potential method of recording its proceed-
ings,” it does protect the public’s right to “compil[e] a compre-
hensive,” “accurate,” and “full record” of those proceedings.
193 F.3d at 183–84. And if a government restriction “mean-
ingfully interferes” with that right, it is unconstitutional unless
the government can show it to be justified. Id. at 183.
Finally, we recently reaffirmed the distinction between
contemporaneous observation and later-available documenta-
tion. The First Amendment, we explained, “protects the pub-
lic’s right of access to information about their officials’ public
activities” and “prohibit[s] government from limiting the stock
case, the later decision] must be deemed without effect.” (cita-
tions omitted)).
10
of information from which members of the public may draw.”
Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017)
(citation omitted). For that information to serve “citizen dis-
course on public issues,” it must be “credible.” Id. And on
that score, in-person observation is no substitute for a record-
ing capable of “wide[] distribut[ion] via different forms of me-
dia,” because “record[ing] what there is the right for the eye to
see or the ear to hear” is how we “corroborate[] or lay[] aside
subjective impressions for objective facts.” Id.
In sum, consistent with the Supreme Court’s case law,
our decisions establish that the First Amendment right of ac-
cess is not limited to contemporaneous attendance of judicial
proceedings. Rather, it covers various forms of information
about what happened during those proceedings, including sub-
sequent access to a comprehensive, accurate, and verifiable
record. Restrictions that meaningfully interfere with that ac-
cess are therefore presumptively unconstitutional.
3.
We find further confirmation in the case law of other
Courts of Appeals, which likewise recognize that for purposes
of the First Amendment, “[i]t is access to the content of the
proceeding—whether in person, or via some form of documen-
tation—that matters.” Hartford Courant Co. v. Pellegrino,
380 F.3d 83, 92 (2d Cir. 2004) (alteration in original) (empha-
sis added) (quoting Antar, 38 F.3d at 1359–60); see also ABC,
Inc. v. Stewart, 360 F.3d 90, 99–100 (2d Cir. 2004) (endorsing
Antar’s reasoning that “[d]ocumentary access is not a substi-
tute for concurrent access, and vice versa”).
11
The Second Circuit, for instance, has explained that
subsequent access to a documented record is necessary to “en-
dow the public and press with the capacity to exercise their
rights guaranteed by the First Amendment” and to ensure that
those rights are not “merely theoretical.” Hartford Courant,
380 F.3d at 93. For that reason, it has held that the First
Amendment demands not just in-person attendance but also
subsequent access to docket sheets, see id., and transcripts of
live proceedings, see Newsday LLC v. County of Nassau, 730
F.3d 156, 165 (2d Cir. 2013) (“The transcript of a proceeding
is so closely related to the ability to attend the proceeding itself
that maintaining secrecy is appropriate only if closing the
courtroom was appropriate.”). Likewise, the Ninth Circuit has
observed that because of the “significant role” that access to
criminal proceedings “plays . . . in the functioning of the judi-
cial process and the governmental system,” the public has a
right to access documents filed as part of postconviction mo-
tions for a sentence reduction. CBS, Inc. v. U.S. Dist. Ct. for
the Cent. Dist. of Cal., 765 F.2d 823, 825 (9th Cir. 1985) (Ken-
nedy, J.) (quoting Globe Newspaper, 457 U.S. at 606). The
Eighth Circuit, for its part, has held that the right of access ex-
tends beyond mere attendance of criminal proceedings and in-
cludes, for example, documents filed in support of a search
warrant affidavit. In re Search Warrant for Secretarial Area
Outside Office, 855 F.2d 569, 572–73 (8th Cir. 1988); see id.
at 573–74 (collecting similar decisions from other circuits).
And the Fifth Circuit, acknowledging the need for “public con-
fidence . . . in the integrity of criminal proceedings,” has iden-
tified a First Amendment right to access transcripts document-
ing midtrial proceedings to investigate juror misconduct.
United States v. Edwards, 823 F.2d 111, 115 (5th Cir. 1987)
(quoting Richmond Newspapers, 448 U.S. at 572 (plurality
opinion)).
12
Examples abound, but the point is this: As protected by
the First Amendment, “access” means much more than the
right to attend proceedings in person. It also covers subsequent
access to information about what occurred at those proceed-
ings. And while that information can take many forms, it must
be enough to instill public confidence, facilitate debate, and al-
low for meaningful oversight of government institutions.
B.
Although we part ways about what the right entails, my
colleagues and I agree on one thing: the First Amendment right
of access applies to bail hearings, just as it does to a wide range
of other government proceedings. See Maj. Op. 11 n.7 (recog-
nizing that the Bail Fund has a First Amendment right to access
bail hearings and transcripts created as a result of those hear-
ings). Several of our sister circuits have reached the same con-
clusion. But because this is an issue of first impression for our
Court, and because the reasons the right applies to bail pro-
ceedings also shed light on the points on which my colleagues
and I disagree, I pause to explain what those reasons are.
Unlike its common-law cousin, see infra Section III.B,
the First Amendment right attaches only where (i) “the place
and process have historically been open to the press,” which
we call the “experience” prong, and (ii) “public access plays a
significant positive role in the functioning of the particular pro-
cess in question,” which we call the “logic” prong. In re Avan-
dia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662,
673 (3d Cir. 2019) (citation omitted). Both prongs are satisfied
here.
13
Start with experience. True, there is no “unbroken, un-
contradicted history” of open bond hearings stretching back to
time immemorial. United States v. Chagra, 701 F.2d 354,
362–63 (5th Cir. 1983) (citation omitted). But our case law
does not require an uninterrupted, longstanding lineage. See
N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 213 (3d
Cir. 2002). Indeed, in “the criminal context, relatively little
history is required.” Id. And here we have more than a little
history: Public bail hearings in Philadelphia date back over
half a century. See Caleb Foote, Compelling Appearance in
Court: Administration of Bail in Philadelphia, 102 U. Pa. L.
Rev. 1031, 1037 n.28 (1954).
Moreover, precedent demands that we “define[] the
type of proceeding broadly” in order to benefit fully from “the
‘judgment of experience,’” Del. Coal. for Open Gov’t, Inc. v.
Strine, 733 F.3d 510, 515–16 (3d Cir. 2013) (quoting Press-
Enterprise II, 478 U.S. at 11). For instance, in a case involving
in camera investigation of potential juror misconduct, we em-
phasized the “overwhelming historical support for access in
other phases of the criminal process,” which made us “reluc-
tant to presume” a lack of openness for in camera proceedings
absent clearer evidence of consistent closure. United States v.
Simone, 14 F.3d 833, 835, 838 (3d Cir. 1994). Here, as in
Simone, we note both the overwhelming openness of modern
criminal proceedings, see id. (citing United States v. Criden
(Criden II), 675 F.2d 550, 555 (3d Cir. 1982)), and the increas-
ing centrality of bail hearings in criminal litigation, see, e.g.,
Seattle Times Co. v. U.S. Dist. Ct. for the W. Dist. of Wash.,
845 F.2d 1513, 1516 (9th Cir. 1988) (bail proceedings “have
grown increasingly important in the modern era,” particularly
since the Bail Reform Act of 1984); see also United States v.
Abuhamra, 389 F.3d 309, 323 (2d Cir. 2004) (bail hearings “fit
14
comfortably within the sphere of adversarial proceedings
closely related to trial”). Taken together, the evidence of the
openness of modern bail proceedings, the dearth of any evi-
dence of consistent closure, and the central role that bail hear-
ings play in the overall criminal adjudicatory process satisfy
the experience prong.
Now for the logic prong, in which we assess how open-
ness facilitates “the interests of the People in observing and
monitoring the functions of their government.” In re Avandia,
924 F.3d at 673. Here, the case for openness is especially
strong. A bail hearing is a pivotal moment in any criminal
case: It typically “marks the start of adversary judicial pro-
ceedings,” Rothgery v. Gillespie County, 554 U.S. 191, 213
(2008); informs the defendant of “the charge against him and
[that] his liberty is subject to restriction,” id.; provides “a pow-
erful lever of coercive plea bargaining,” as “someone who is
locked up pending trial is likely to be fairly miserable and will
have substantial difficulty assisting in his defense,” Clark
Neily, Jury Empowerment as an Antidote to Coercive Plea
Bargaining, 31 Fed. Sent’g Rep. 284, 286 (2019); and may
lead to pretrial detention, which itself has powerful and detri-
mental downstream consequences.4 These pivotal proceedings
4
See, e.g., Will Dobbie et al., The Effects of Pretrial
Detention on Conviction, Future Crime, and Employment: Ev-
idence from Randomly Assigned Judges, 108 Am. Econ. Rev.
201, 204 (2018) (“Initial pretrial release increases the proba-
bility of employment in the formal labor market three to four
years after the bail hearing by 9.4 percentage points, a 24.9
percent increase from the detained defendant mean.”); id. at
203–04 (examining other effects of initial pretrial detention
versus release); Erica Kates, Wellesley Ctrs. for Women,
15
naturally “attract significant public interest . . . and invite legit-
imate and healthy public scrutiny.” Chagra, 701 F.2d at 363.
There are good reasons for the public to scrutinize bail
proceedings. In bail hearings, as in all initial criminal proceed-
ings, “the absence of a jury, long recognized as an inestimable
safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge, makes the im-
portance of public access . . . even more significant.” Press-
Enterprise II, 478 U.S. at 12–13 (internal quotation marks and
citation omitted). And there are many examples of the good
that public access can produce. Perhaps the most famous
comes from one of the major political events of the previous
century: The Watergate scandal “might have been cut off at
the pass” had Bob Woodward and Carl Bernstein not been able
to discover “that high-priced lawyers were representing ‘third-
rate burglars’” at the initial hearing. Chagra, 701 F.3d at 363
n.25 (citation omitted). In more recent years, efforts to exam-
ine Philadelphia’s bail hearings have uncovered disturbing
trends; for example, in a multiyear study of thousands of
Moving Beyond Incarceration for Women in Massachusetts:
The Necessity of Bail/Pretrial Reform 2, 4–5 (2015),
https://bit.ly/2CseGoR (showing that almost 50% of women in
pretrial detention were at risk of losing their homes); Megan T.
Stevenson, Distortion of Justice: How the Inability to Pay Bail
Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 512–13
(2018) (finding, based on data from Philadelphia, that “pretrial
detention leads to a 13% increase in the likelihood of being
convicted on at least one charge,” “a 42% increase in the incar-
ceration sentence,” and “a 41% increase in courtroom debt”).
I thank amici for identifying these helpful resources.
16
hearings, over 90% featured a magistrate who “imposed cash
bail without even inquiring, as required by state law, about the
accused person’s financial ability to pay,” and over 85% of ar-
restees “assigned monetary bail were also appointed counsel
because of their indigency.” Br. of Amici Curiae Cato Institute
et al. 8. The Majority and I therefore agree that “the bail deci-
sion is one of major importance to the administration of justice,
and openness will help to assure the public that the decision is
properly reached.” In re Globe Newspaper Co., 729 F.2d 47,
52 (1st Cir. 1984); accord, e.g., Seattle Times, 845 F.2d at
1516–17.
In recognizing today that the First Amendment right of
access applies to bail hearings, we join three of our sister cir-
cuits. See Seattle Times, 845 F.2d at 1517; In re Globe News-
paper, 729 F.2d at 52; Chagra, 701 F.2d at 363–64; see also,
e.g., United States v. Edwards, 430 A.2d 1321, 1343–46 (D.C.
1981). And the reasons for this aspect of our holding also bear
on what that right of access requires in this case. It is to that
question that I now turn.
II.
The merits here should be straightforward. The chal-
lenged restrictions meaningfully interfere with the public’s
right to a comprehensive and verifiable record of bail proceed-
ings. And the Magistrates’ proffered reasons for those re-
strictions fall well short of the showing required to justify such
an interference. The District Court was therefore correct in
finding a First Amendment violation, and we should affirm.
17
A.
The Bail Fund’s First Amendment right of access has
been infringed because (1) state and local policies prevent ac-
cess to or compilation of a comprehensive, accurate record of
bail proceedings (2) without providing an adequate alternative
source for that constitutionally protected information. I ex-
plain each point below.
1.
The Bail Fund’s suit challenges a trio of state and local
restrictions that prevent it from recording bail hearings. See
Phila. Bail Fund, 440 F. Supp. 3d at 419–20 (citing Pa. R.
Crim. P. 112(C), Pa. R. Jud. Admin. 1910(B), and Phila. Mun.
Ct. Arraign. Ct. Mag. R. 7.09). But the Fund does not chal-
lenge these restrictions in a vacuum. Rather, as the District
Court recognized, it does so in light of other critical limitations:
that the “Municipal Court does not make available to the public
either its own official audio recordings or transcripts of the bail
hearings,” id. at 426, and that bail hearings occur without no-
tice at a rapid-fire, unpredictable pace at any time of the day or
night, making it impossible for the Fund to rely on in-person
attendance and notetaking to compile an accurate and complete
record. It is the cumulative effect of these rules and circum-
stances that produces the constitutional harm underlying the
Bail Fund’s request for relief.
And harmful it is indeed. With neither an official record
nor the means to make a record of its own, the public is left
“[un]informed,” Globe Newspaper, 457 U.S. at 605, about a
matter of the “high[est] concern and importance,” namely the
government’s prosecution of criminal offenses, Richmond
18
Newspapers, 448 U.S. at 575 (plurality opinion). Informa-
tional gaps of this kind have grave consequences. For one,
without active oversight from the public, the criminal justice
system loses perhaps its best way to ensure “basic fairness.”
Press-Enterprise I, 464 U.S. at 508. Just as critical, “public
confidence in the system” suffers, id., because the public loses
all “assurance[s] that established procedures are being fol-
lowed and that deviations will become known,” Press-Enter-
prise II, 478 U.S. at 13 (citation omitted). And when, by luck
or circumstance, deviations do become known, they can all too
easily be swept aside with a retort that they reflect isolated in-
stances, inaccurate recollections, or subjective impressions.
See Fields, 862 F.3d at 359 (emphasizing the need for an actual
recording to “corroborate[] or lay[] aside subjective impres-
sions for objective facts”).
In the context of bail hearings, these issues are far from
hypothetical. The soundness of Philadelphia’s bail system is
an issue of great and immediate public importance.5 And the
information the public has managed to gather about bail pro-
ceedings from existing sources, see infra Part II.A.2, has been
deserving of that scrutiny. One study, for example, found that
magistrates overwhelmingly ignored the obligation to inquire
into an arrestee’s financial situation before imposing monetary
bail and often imposed seemingly unconscionable amounts,
5
See, e.g., Chris Palmer, Tensions Are Boiling Over Be-
tween Philly DA Larry Krasner and Bail Reform Advocates,
Phila. Inquirer (July 29, 2020), https://bit.ly/3aqYUY1. See
generally Report of the Special Master, Phila. Cmty. Bail Fund
v. Arraignment Ct. Magistrates, No. 21 EM 2019 (Pa. Dec. 16,
2019).
19
often without explanation. See Br. of Amici Curiae Cato Insti-
tute et al. 8–9. The Bail Fund’s court-watching efforts, too—
hampered as they have been by the challenged restrictions—
have turned up troubling evidence, including magistrates’ ig-
noring arrestees’ questions, “intentionally turn[ing] off their
microphone[s] so that they could speak about [an arrestee’s]
case . . . without being heard by the [arrestee] or the observers,”
and making bail determinations outside the arrestee’s presence.
See Phila. Bail Watch & Pennsylvanians for Mod. Cts., Phila-
delphia Bail Watch Report: Findings and Recommendations
Based on 611 Bail Hearings 20–21 (2018),
https://bit.ly/2Fg41P5 [hereinafter Bail Watch Report]. But
when the Fund has tried to raise these issues with government
officials, it has been waved off, with the officials contesting the
Fund’s description of the “stated rationales for prosecutors’ re-
quests for cash bail” and the “frequency with which the De-
fender Association’s representatives advocated for their cli-
ents” during bail hearings. J.A. 123. Accurate and compre-
hensive information about what occurs at bail hearings would
eliminate these unnecessary credibility contests and produce
the type of verifiable information on which public dialogue de-
pends. And no doubt that information would reveal additional
items of interest that deserve public attention.
The Majority does not directly dispute any of the fore-
going. Instead, it advances three theories whose effect is to
considerably diminish the scope of the First Amendment right
of access as the Supreme Court and this Circuit have described
it. I find support for none of those theories.
First, the Majority contends that Whiteland Woods for-
bids only restrictions that “meaningfully interfere with the pub-
lic’s ability to inform itself about” proceedings and, so long as
20
the public has some way to learn about the subjects or outcome
of those proceedings, the First Amendment has nothing further
to say. Maj. Op. 12. But in Whiteland Woods, the reason we
rejected the plaintiff’s claim was that, because public attendees
were able to “use audio recording devices . . . or even employ
stenographic recording,” the videotaping ban at issue “did not
curtail [the plaintiff’s] ability . . . to compile an accurate . . .
[and] comprehensive record.” 193 F.3d at 183. Had those “al-
ternative means of compiling a comprehensive record” been
unavailable, videotaping would in fact “have provided a
uniquely valuable source of information,” id. at 183, thus re-
quiring a different result. The Majority’s reading, therefore,
erases Whiteland Woods’s emphasis on the need for a compre-
hensive and accurate record and, in its place, substitutes a
lower standard demanding only some publicly accessible infor-
mation about the proceedings.
Second, the Majority argues that the Bail Fund “errone-
ously equates ‘comprehensive record’ with ‘verbatim record,’”
Maj. Op. 13, and, having rejected a per se requirement of a
verbatim record, considers that to be the end of the analysis.
But that should be only the beginning. I agree the First Amend-
ment requires an “accurate” and “comprehensive record” of
proceedings to which the right attaches, Whiteland Woods, 193
F.3d at 183, and does not guarantee a verbatim record in every
context. That leaves, however, the question of what is required
for an “accurate” and “comprehensive record.” Id. And I be-
lieve the District Court was entirely correct that the Magistrates
must either make their recordings available or allow the Bail
Fund to create recordings of its own.
The bail hearings at issue in this appeal implicate per-
sonal liberty, form a vital component of the modern criminal
21
process, and are currently the subject of vigorous and extensive
public debate.6 And the circumstances in which the hearings
6
The Majority highlights that Whiteland Woods cited
two out-of-circuit opinions approving nonverbatim modes of
collecting information about government actions. Maj.
Op. 13–14. It omits the third case Whiteland Woods cited,
which rejected a bid to videotape proceedings only because
“audiotaping was permitted.” Id. (citing Johnson v. Adams,
629 F. Supp. 1563, 1564–65 (E.D. Tex. 1986)); see Johnson,
629 F. Supp. at 1564 (emphasizing that “the public and the
press [we]re allowed to audio tape the proceedings” using “a
tape recorder or any other means of sonic reproduction” (cita-
tion omitted)). And as for the two cases the Majority mentions,
I find them to be of minimal assistance. The first, which in-
volved a one-day redistricting negotiation open to members of
the press, arose in the context of a petition for a writ of manda-
mus. Combined Commc’ns Corp. v. Finesilver, 672 F.2d 818,
819–20 (10th Cir. 1982). That matters: Mandamus is available
only where the right at issue is “clear and indisputable,” Kerr v.
U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403 (1976)
(citation omitted), but the Finesilver court faced “unsettled”
territory ill suited to the writ, 672 F.2d at 821. The second case,
Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977), involved a
reporter who sought to “film executions in state prison,” id. at
1275, and thus implicated unique interests related to “prison
access,” id. at 1278. And Garrett, much like Finesilver, could
not benefit from the Supreme Court’s exegeses on the right of
access in Press-Enterprise I and II, which came later in the
decade. Above all, neither Garrett nor Finesilver involved
criminal hearings remotely like the bail proceedings here, and
consequently their analysis has little to teach us.
22
are held make clear that a transcript, audio recording, or other
verbatim record is necessary for members of the public to com-
pile a complete and accurate record. Before the District Court
entered its order, the Magistrates refused to produce tran-
scripts, refused to grant public access to the audio recordings
they now acknowledge are of sufficient quality to create accu-
rate transcripts, and simultaneously prohibited members of the
public from using stenographic or recording devices to create
their own record. And, given that the parties’ arguments and
the judge’s reasoning do not appear anywhere besides the spo-
ken record, that hearings proceed at rapid pace with little or no
advance notice, and that hearings occur around-the-clock every
day of the week, the idea that any member of the public could
be continually present and capable of capturing what is said is
utterly unrealistic. So, while the Magistrates need not provide
transcripts, share their audio recordings, and permit members
of the public to create their own recordings, they must ensure
that at least one of those channels for compiling a “comprehen-
sive record” remains available. Id.
Third, the Majority asserts the First Amendment right
of access is limited “to documentation already in existence.”
Maj. Op. 11. I explain below why that view conflicts with gov-
erning case law, conflates the First Amendment right with a
separate common-law right, and blurs the distinction between
right and remedy. See infra Section III. But even on its own
terms, the Majority’s analysis does not support today’s out-
come. As I mentioned at the outset, the Municipal Court cre-
ates its own audio recordings of all bail hearings, recordings
now conceded to be of “sufficient [quality] to make certified
transcripts.” Status Rpt. [Dist. Ct. Dkt. No. 59] at 2
23
[hereinafter Status Report].7 I fail to see how those recordings
are anything other than records “already in existence,” Maj.
7
Initially, before the District Court, the Magistrates as-
serted the audio recordings were of “inferior quality” and were
“often hard to hear.” Phila. Bail Fund, 440 F. Supp. 3d at 418.
Although that assertion was included among the stipulated
facts, see id. at 418 n.5, we are obligated in this First Amend-
ment case to undertake “an independent examination of the
record,” see Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380,
387 (3d Cir. 2010) (citation omitted). And two aspects of the
record before us engender skepticism about the recordings’ al-
legedly poor quality. First, the recordings have always been of
sufficient quality for the Municipal Court to use them for inter-
nal purposes, including not only “to address technical issues”
but also “to enable the President Judge of the Municipal Court
to monitor the performance of the magistrates.” Phila. Bail
Fund, 440 F. Supp. 3d at 418. Second, in a status report filed
with the District Court during the pendency of this appeal—
which the Bail Fund brought to our attention via Rule 28(j) let-
ter—the Magistrates reported that, to comply with the District
Court’s order, the Municipal Court had decided to “make avail-
able certified transcripts” of all bail hearings “created from the
current audio recording technology present in arraignment
court.” Status Report, supra, at 2. The status report stated that
the Municipal Court “ha[d] taken steps to ensure that the audio
quality [wa]s sufficient” to make transcripts, id., but did not
indicate what those steps were, which apparently did not in-
volve changing the technology already in the courtroom. In
light of our independent obligation to view the record with
fresh eyes and the uses to which the recordings have been put
before and during this litigation, we cannot simply assume that
24
Op. 11, which would be covered by the First Amendment right
of access under even the Majority’s unduly narrow view of that
right. Why then are we not affirming the District Court’s order,
which gave the Municipal Court the option of simply releasing
those existing recordings to the public? That outcome would
fall well within the ambit of previous decisions such as the
Press-Enterprise duo and Antar even as the Majority reads
them—and yet today the Court reverses, relieving the Magis-
trates of any incentive to release existing documentation that
would provide the public with the information to which it is
entitled.8
2.
To justify that outcome, the Magistrates and Majority
point to two alternative sources of information for what hap-
pens during bail hearings: in-person attendance and notetaking,
and documentation resulting from those hearings. Neither sup-
plies the “accurate,” “comprehensive,” and “full record of the
they are of meaningfully poor quality as compared to others of
their type.
8
Perhaps the Majority views written transcripts as dif-
ferent in kind from other forms of recordings that are more au-
dio–visual in nature. But if that is so, the grounds for that dis-
tinction are entirely unclear. After all, if the issue is that a court
is preparing a recording for its own uses but refusing to allow
the public to access it, why should it matter whether that re-
cording is written or audio–visual? And why would the First
Amendment have something to say about the former but not
the latter?
25
proceedings” that the First Amendment requires. Whiteland
Woods, 193 F.3d at 183–84.
First, contemporaneous attendance and notetaking are
flawed substitutes for both legal and factual reasons. To begin
with the legal, recall our explanation in Antar that, because
“openness is ongoing—a status rather than an event”—“docu-
mentary access is not a substitute for concurrent access, and
vice versa.” 38 F.3d at 1360 & n.13 (emphasis omitted). Antar
could not have been clearer: “The right of access encompasses
both forms, and both are vitally important.” Id. at 1360 n.13.
Although this aspect of Antar figured prominently in the par-
ties’ briefs, it goes essentially unaddressed by the Majority. In
my view, that is unfortunate: Under Antar, whether the initial
proceeding is open to the public does not determine whether
the public also has a right to subsequent documentation of what
took place there.
The factual side is equally problematic. Despite the best
efforts of the Bail Fund’s volunteers—“most of [whom] are not
lawyers and have limited familiarity with legal terms . . . [and]
technical procedures”—“the volume of information and speed
of arguments exchanged during each hearing, [together with]
the quick, back-to-back nature of the hearings, make[] it im-
possible to document by hand everything that occurs.” J.A.
123–24. And what is missed despite those efforts is, lamenta-
bly, lost for good: The hearings take place off the record, with-
out written arguments and, unless bail is denied outright, with
no statement of reasons for the magistrate’s decision. Thus,
whether for immediate, short-term, or long-term purposes,
there is no comprehensive and accurate record on which the
public can rely.
26
Nor can we take solace in the fact, cf. Maj. Op. 5, that
in the event either party opts for an immediate telephonic ap-
peal, the standard of review is de novo. The audio–video link
connecting arrestees to the courtroom ends before any appeal
begins. As a result, attending members of the public cannot
hear the appeal, and the arrestee’s testimony and any argu-
ments or colloquy with the judge will be preserved, if at all,
only through notes of counsel.9 Indeed, the availability of an
immediate off-the-record appeal may exacerbate the First
Amendment injury here; if, for example, the magistrate in an
initial bail hearing violates state law by failing to inquire as to
the arrestee’s ability to pay and the reviewing judge commits
the same error, neither of those errors by public servants would
be appropriately documented in an accurate and verifiable rec-
ord. At both stages of the process, critical information about
bail proceedings would escape memorialization and be forever
lost to the public.
Further restricting the utility of in-person attendance is
that bail hearings can occur “at any time of day on each day of
9
Although I use the word “counsel,” “[f]requently there
are no lawyers in the room participating in the preliminary ar-
raignment hearing.” Bail Watch Report, supra, at 14. As of
late 2018, for instance, “non-attorneys (e.g. paralegals, interns)
often represent[ed] both the Public Defender’s Office and the
District Attorney’s Office at the hearings.” Id. And until re-
cently, it was “extremely rare” for arrestees and their counsel
to have any opportunity to confer and begin building an attor-
ney–client relationship before the bail hearing or immediate
appeal. Amici Br. of Defender Association of Philadelphia et
al. 14–15.
27
the year,” J.A. 58, with no notice to the public of the time, case
number, of circumstances of any given arrestee’s hearing be-
fore the instant it occurs. So while the courtroom doors are
theoretically open, the Fund must ask its volunteers to camp
out in the basement of the Criminal Justice Center day and
night, with the lack of context and notice frustrating their ef-
forts to compile comprehensive and accurate information about
what occurs at each hearing. Such “merely theoretical” access,
Hartford Courant, 380 F.3d at 93, cannot satisfy the First
Amendment’s stringent demands.10
Second, although “court documents related to [each bail
hearing] are [later] filed of record,” Phila. Bail Fund, 440 F.
Supp. 3d at 419, those documents do not supply the compre-
hensive information that the First Amendment demands. After
an arrestee’s bail hearing, the public can access the criminal
complaint, preliminary hearing subpoena, docket sheet, and
any bail appeal report. It can also request bulk data containing
basic information about each arrestee, offense, and disposition,
though those requests cost $80 per hour of staff time expended
and take up to eight weeks to process. These after-the-fact doc-
uments fall short for two main reasons.
10
That is not all. As discussed below, see infra Section
II.B.2, “due process requires some notice to the public before
a trial court may close a pretrial criminal proceeding.” Criden
II, 675 F.2d at 558. When combined with the lack of court-
produced transcripts or audio recordings and the prohibition on
public recording of any kind, the lack of notice before bail
hearings raises serious due process concerns.
28
One problem is the considerable delay between the
hearings and access to the bulk data. As we have explained,
delay in disclosure of information to which the right of access
attaches can work a “uniquely irretrievable loss.” Criden II,
675 F.2d at 559 (citing Gannett Co. v. DePasquale, 443 U.S.
368, 442 n.17 (1979) (Blackmun, J., concurring in part and dis-
senting in part)). Part of that irretrievable loss involves down-
stream effects, as “[l]ater events may crowd news of yester-
day’s proceeding out of the public view” or “an important
event, such as a judicial election or the selection of a prosecut-
ing attorney, may occur when the public is ignorant of the de-
tails of judicial and prosecutorial conduct.” Gannett, 443 U.S.
at 442 n.17 (Blackmun, J., concurring in part and dissenting in
part). But the loss may also affect the proceeding itself, as “it
is impossible to know what it would have been like had the
pressure of publicity been brought to bear on the parties during
the proceeding.” Id. Either way, delay hinders the public ob-
servation and participation that the First Amendment is de-
signed to protect.
More fundamentally, these after-the-fact documents
provide at best a crude outline of what happened to which ar-
restees. As the Magistrates conceded at oral argument, there is
no record whatsoever of the arrestee’s testimony, counsels’ ar-
guments, or the magistrate’s questions or reasoning. That is
the very stuff of law and government. It is why our opinions
do not simply state “Affirmed” or Reversed”; rather, we take
pains to explain the parties’ arguments and our reasoning pre-
cisely because it matters not just who a litigant is or what the
court orders him to do, but also what arguments the litigant
presented and what reasons the court gave in support of its de-
cision. And it is that information—beyond factoids about the
number of hearings or the bottom-line dispositions at those
29
hearings—that the public needs for sensible debate and mean-
ingful oversight. Without those details, we cannot conclude
the record is “comprehensive” enough, Whiteland Woods,
193 F.3d at 183, to satisfy the First Amendment.
To be sure, the Bail Fund and organizations like it have
not given up on their missions to, as the Majority puts it, “en-
force what [they] regard[] as justice.” Maj. Op. 6. Their ex-
tensive efforts to attend bail hearings in person and document
what they can through handwritten notes have not been entirely
fruitless. But it is a mistake to treat the fruits of that labor as
enough to remedy the constitutional violation here. The First
Amendment is far more robust than that: It reaches beyond
firsthand observations to subsequent documentation capable of
broad dissemination, Antar, 38 F.3d at 1360–61 & 1360 n.14;
demands a “comprehensive,” “accurate,” and “full record,”
Whiteland Woods, 193 F.3d at 183–84; and recognizes that the
publicly accessible information must be credible and verifiable
to serve the Amendment’s fundamental purposes, see Fields,
862 F.3d at 359. Those robust protections have been violated
here.
B.
Because the challenged restrictions meaningfully inter-
fere with the right of access to bail hearings, they are unconsti-
tutional unless the government, based on specific facts, shows
“an overriding interest . . . that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.”
Press-Enterprise I, 464 U.S. at 502. It is no easy feat to satisfy
this burden, and here the Magistrates come nowhere close.
30
1.
The Magistrates identify two interests that, they con-
tend, support the restrictions: avoiding prejudice to arrestees
and maintaining courtroom decorum. But they have not shown
that either interest is compelling.
The Magistrates first suggest that allowing the Fund to
record bail hearings would increase the risk of prejudicial pre-
trial publicity. Yet they have failed to identify a single case
anywhere in which the existence of a recorded bail hearing
prejudiced the defendant11—including in Philadelphia’s Early
Bail Review, a system allowing certain arrestees to challenge
their bail determinations whose hearings are uniformly rec-
orded. The Magistrates’ concession, see Oral Arg. Tr. 26–27,
is fatal given the requirement that restrictions on access must
be supported by specific findings or evidence, see Antar, 38
F.3d at 1351, 1358–59.
Even if we were to grant the existence of some hypo-
thetical risk of prejudicial publicity, that interest would not jus-
tify the severe restriction on public access at issue here. As a
result of the Magistrates’ recent commitment to allow arrestees
11
That failure is stark given that all federal bail hear-
ings, along with those in many states, are recorded. See 28
U.S.C. § 753(b); see also, e.g., Alaska R. Ct. R. Admin. 35(a);
Colo. R. Crim. P. 10(d); Mich. Comp. Laws
§ 767.37a(4); Minn. R. Crim. P. 5.09; Mont. Code Ann. § 46-
11-701(1), (4); Neb. Rev. Stat. § 29-509; N.M. R. Rec. Jud.
Proceedings 22-301; Ohio Rev. Code Ann. § 2937.15; Tenn.
Code Ann. § 40-14-307.
31
and their counsel opportunities for confidential communica-
tions before and during bail hearings, counsel can now warn
vulnerable arrestees about the downstream effects of anything
said during the hearing. And as the Supreme Court has recog-
nized, voir dire all but eliminates any risk of prejudice from
public disclosure by allowing the trial court to “identify those
jurors whose prior knowledge of the case would disable them
from rendering an impartial verdict.” Press-Enterprise II,
478 U.S. at 15. Given those mechanisms for risk mitigation, I
fail to see how any possibility of prejudicial publicity could be
“overriding.” Press-Enterprise I, 464 U.S. at 502.
The second proffered justification, that of courtroom
decorum, is even harder to credit. There is already considera-
ble technology in the courtroom: The Municipal Court pro-
duces its own audio recordings, arrestees and prosecutors can
cause their own audio recording to be made at any time, ar-
restees appear by audio–video link, and all Early Bail Review
hearings feature a stenographer. Yet as the Magistrates con-
ceded at oral argument, they have not identified a single in-
stance in which any of that technology had any ill effect on
decorum. And once again, even ignoring the lack of evidence
and crediting the Magistrates’ bald assertion, there is a readily
available option for risk elimination: Under the District
Court’s order, the Municipal Court could simply make its own
recordings or a transcript available to the public and continue
to enforce its technological ban. Indeed, that is exactly what it
has done since at least June 2020 in response to the District
Court’s order—again, without any loss of decorum that the
Magistrates could identify. An interest in courtroom decorum
therefore cannot justify the infringement on the right of access
the Bail Fund has identified.
32
2.
Apart from the lack of evidence in support of the chal-
lenged restrictions, we confront an independent problem: that
those restrictions are not narrowly tailored.
That is putting it mildly, as the restrictions are not tai-
lored at all. They do not apply only upon specific showings of
possible prejudice or likely breaches of courtroom decorum.
Rather, they extend to every one of the thousands of bail hear-
ings that take place every month in Philadelphia. Additionally,
because no audio recordings or transcripts of those hearings are
later shared with the public, there are no means to try to remedy
initially overbroad restrictions on access through the subse-
quent release of appropriately redacted transcripts. That
across-the-board feature alone suggests that, even taking the
asserted interests at face value, the means chosen to serve them
cannot stand.12
12
The blunderbuss nature of the restrictions approved
today also sets this Court on a collision course with the Due
Process Clause. As we have explained, where (as here) the
First Amendment right of access attaches, “due process re-
quires some notice to the public before a . . . court may close a
pretrial criminal proceeding.” Criden II, 675 F.2d at 558. Alt-
hough the “form that such notice should take” may vary from
context to context, at least for preliminary hearings we have
required it to be “calculated to inform the public that its con-
stitutional rights may be implicated in a particular criminal pro-
ceeding” and to be docketed “sufficiently in advance of [the]
hearing . . . to afford interested members of the public an op-
portunity to intervene and present their views.” Id. at 559. We
are not called on today to set the constitutional baseline for
33
Further, as in all cases involving narrow tailoring, we
must be attentive to underinclusivity that “leaves appreciable
damage to [a] supposedly vital interest unprohibited.” Reed v.
Town of Gilbert, 576 U.S. 155, 171–72 (2015) (citation omit-
ted); see United States v. Marcavage, 609 F.3d 264, 289 (3d
Cir. 2010) (underinclusivity can both “suggest[] that the gov-
ernment’s supposedly vital interest is not really compelling”
and “show that the law is not narrowly tailored” (internal quo-
tation marks and citation omitted)). And here, we confront re-
strictions riddled with exceptions.
The most obvious is that the Municipal Court itself al-
ready creates audio recordings of each bail hearing, which are
currently being used to produce publicly available transcripts.
But there are other exceptions as well. Under state law, the
magistrate, prosecutor, or arrestee “may cause a recording to
be made of the [hearing] as an aid to the preparation of the
written record for subsequent use in [the] case.” Pa. R. Crim.
P. 112(D). And all proceedings in the Early Bail Review sys-
tem discussed above are recorded. That these several other
means of recording are allowed, with no identifiable conse-
quences for the conduct of bail hearings or for arrestees’ rights,
seriously calls into doubt the Magistrates’ proffered justifica-
tions.
notice due before a bail hearing may be closed. Even so, I raise
the issue to underscore the fundamental inconsistency between
the Magistrates’ and Majority’s agreement that the right of ac-
cess attaches to bail hearings and their simultaneous approval
of a system that provides no before-the-fact notice and no after-
the-fact record of those hearings.
34
Together, the weakness of those justifications and the
inartful manner in which they are tailored preclude us from
finding them consistent with the First Amendment,13 and we
should affirm the District Court’s identical conclusion.
13
Some have wondered whether limitations on the right
of access to judicial proceedings may be akin to time, place,
and manner restrictions on expressive activities. Richmond
Newspapers, 448 U.S. at 581 n.18 (plurality opinion). We have
expressed doubts about that idea, particularly as right-of-ac-
cess jurisprudence does not map neatly onto the forum analysis
required by the Free Speech Clause. Whiteland Woods,
193 F.3d at 182–83; see PG Publ’g Co. v. Aichele, 705 F.3d
91, 99–100 (3d Cir. 2013) (because the right of access “fo-
cus[es] . . . on access to information,” not “expressive conduct
or speech,” “the traditional forum analysis is [in]apposite”).
And however far a time-place-and-manner line of thinking
may extend in this context, it does not cover restrictions—like
the ones here—whose effect is “to deny or unwarrantedly
abridge . . . the opportunities for the communication of thought
and the discussion of public questions” essential to the right of
access. Press-Enterprise I, 464 U.S. at 511 n.10. Still, even if
we were to set these doubts to one side, the proffered justifica-
tions here would remain concededly unsubstantiated and there-
fore would not pass muster under even the most forgiving of
the tests used in public forum analysis. See NAACP v. City of
Philadelphia, 834 F.3d 435, 443–44 (3d Cir. 2016) (holding
that the government must prove the reasonableness of any reg-
ulation in a limited public or nonpublic forum through “record
evidence or commonsense inferences” and that where the rec-
ord “is strangely void of support,” the regulation cannot stand).
35
III.
In reaching a different result, the Majority treats this
case as one about the existence vel non of judicial records. But
that view conflates the constitutional right of access with its
common-law cousin and confuses the constitutional right at is-
sue here with the set of remedies available to redress violations
of that right. As I will explain, both those points of confusion
lead the Majority away from settled ground and into uncharted
territory.
A.
The Majority asserts that the law requires only “that ju-
dicial records—assuming they exist—[be] generally available
to the public.” Maj. Op. 10 (citing Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Its lone citation is
to a case “discussing the common law right of access to judicial
records.” Id. But that common-law right has distinct justifica-
tions and coverage as compared to its constitutional cousin,
and it is often a mistake to transplant principles from one into
the other. This is a case in point.
I have explained that the First Amendment right of ac-
cess, which seeks to protect the public awareness and partici-
pation on which our democracy depends, guarantees access to
information about what occurs at government proceedings.
See supra Section I.A. The right that flows from common law,
on the other hand, predates the Constitution and Bill of Rights,
Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse As-
socs., 800 F.2d 339, 343 (3d Cir. 1986), and focuses on the
public’s ability “to inspect and copy public records and docu-
ments, including judicial records,” In re Cendant Corp.,
260 F.3d 183, 192 (3d Cir. 2001).
36
In many ways, that common-law right “is narrower than
the First Amendment right.” N. Jersey Media, 836 F.3d at 434.
First, while the First Amendment captures information that
“plays a significant positive role in the functioning of the par-
ticular process,” id. at 429 (citation omitted), the common-law
right asks only “whether [the document at issue] is considered
to be a ‘judicial record’” based on whether it was “filed with
the court” or “incorporated or integrated into . . . adjudicatory
proceedings,” id. at 434 (first alteration in original) (citation
omitted). The First Amendment also “requires a much higher
showing that the common law right . . . before a judicial pro-
ceeding can be sealed.” In re Cendant, 260 F.3d at 198 n.13.
Given these asymmetries, we have repeatedly cautioned that
the First Amendment and common-law rights are “distinct”
and must be analyzed separately. In re Avandia, 924 F.3d at
670; see, e.g., id. at 672–74; N. Jersey Media, 836 F.3d at 428–
36.
We should hew to that approach here. Focusing on
whether “documentation [is] already in existence,” Maj.
Op. 11, may well be appropriate for the common-law right, as
a document that does not exist cannot have been “filed with the
court” or “integrated into . . . adjudicatory proceedings,” N.
Jersey Media, 836 F.3d at 434 (citation omitted). But it is a
poor fit for the First Amendment right, which guarantees ac-
cess to information the public needs to monitor government of-
ficials’ behavior and debate sound policy. After all, if a docu-
ment’s “existence” were all that mattered, rights of documen-
tary access long recognized as protected by the First Amend-
ment—including to transcripts of voir dire, Press-Enterprise I,
464 U.S. at 510–13; Antar, 38 F.3d at 1351, and preliminary
hearings, Press-Enterprise II, 478 U.S. at 13; Criden II, 675
F.2d at 554—could be erased if the government simply chose
37
not to produce the document. Fortunately, the Constitution
does not leave the rights it enshrines so vulnerable to the whims
of the officials it regulates.
To put the issue into sharp relief, consider how the Ma-
jority summarizes Antar’s holding: “that, assuming there are
transcripts of a proceeding, the First Amendment right of ac-
cess extends equally to the transcripts as well as the courtroom
proceedings.” Maj. Op. 11. A diligent search through Antar
for conditional language of this sort, or any other indication
that documentary preexistence was necessary to its reasoning
or outcome, would be in vain. To the contrary, Antar made
clear that “[i]t is access to the content of the proceeding . . . that
matters.” 38 F.3d at 1359–60 (emphasis added); see also id. at
1360 n.14 (emphasizing that the right of access is “concerned
with information, not with a particular means of communica-
tion”). Thus, although the right of access protected by the First
Amendment can involve various “form[s] of documentation,”
id. at 1360, it in no way depends on the preexistence of a judi-
cial record to which the common-law right of access would at-
tach. The Majority’s contrary suggestion defies our case law,
which as a panel we are bound to follow. Jutrowski v. Town-
ship of Riverdale, 904 F.3d 280, 293 & n.13 (3d Cir. 2018).
B.
The Majority also views this case as if it were about an
asserted First Amendment right to create audio recordings. It
is not. It is, as are all First Amendment right of access cases,
about the right to information—comprehensive and accurate
information on which the public can rely in overseeing repre-
sentatives and debating policy. Of course, once a court finds
infringement of the right to access such information, it must
38
then remedy that infringement. And in cases (like this one)
where the plaintiff seeks equitable relief, the court “ha[s] sub-
stantial flexibility,” Brown v. Plata, 563 U.S. 493, 538 (2011),
in choosing among viable “means of compiling [the necessary]
comprehensive record,” Whiteland Woods, 193 F.3d at 183.
See also Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (em-
phasizing that “breadth and flexibility are inherent in equitable
remedies”). This distinction between right and remedy is crit-
ical here, as it supplies the appropriate lens through which we
should view the District Court’s decision.
After an extensive examination of the undisputed facts,
the District Court found a First Amendment violation: that the
challenged rules, together with the fact that the “Municipal
Court does not make available to the public either its own of-
ficial audio recordings or transcripts of [those] hearings,”
Phila. Bail Fund, 440 F. Supp. 3d at 426, meaningfully restrict
the public’s access to comprehensive information about the
hearings. To redress that violation, the District Court engaged
in a thoughtful exercise of equitable discretion. It emphasized
that “the validity of the court rules in question,” including the
blanket ban on public recording, could “be saved by [the
court’s] making such audio recordings or transcripts publicly
available.” Id. The District Court therefore put that choice in
the Municipal Court’s lap, reserving the remedy the Bail Fund
sought—the ability to make its own audio recordings—for
only the circumstance where the court chose not to produce the
information itself. The District Court’s remedy was appropri-
ately tailored to the “nature and scope of the constitutional vi-
olation,” Tillery v. Owens, 907 F.2d 418, 429 (3d Cir. 1990)
(citation omitted), and was highly attentive to federalism con-
cerns, see O’Shea v. Littleton, 414 U.S. 488, 499–500 (1974).
39
Moreover, that carefully designed remedy has proved
capable of administration. Using the “current audio recording
technology [already] present” in arraignment court, the Munic-
ipal Court has opted to produce transcripts available for online
ordering on a similar fee and delivery schedule “as for [all]
other proceedings.” Status Report, supra, at 2. That is an ap-
propriate and fitting outcome to this dispute. And it should put
to rest any concerns that this case is about a plaintiff’s right to
dictate whatever form of record compilation it most prefers.
* * *
On the whole, the Majority places too much emphasis
on essentially irrelevant questions—ones that would be better
addressed in a common-law case or dispute over the permissi-
ble scope of equitable discretion, neither of which is presented
here—and not enough emphasis on what the Supreme Court,
this Circuit, and other Courts of Appeals have had to say about
the constitutional right at issue. Thus, although I join my col-
leagues in recognizing the First Amendment right of access to
bail hearings, I cannot endorse the remainder of their analysis.
IV.
Without the free “circulation of information and ideas,”
“government by the people [is not] a workable reality.” Capi-
tal Cities Media, Inc. v. Chester, 797 F.2d 1164, 1167 (3d Cir.
1986) (en banc). For that reason, the First Amendment embod-
ies a “profound national commitment to the principle that de-
bate on public issues should be uninhibited, robust, and wide-
open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Central to that commitment is a promise of ongoing access to
comprehensive information about what takes place in judicial
40
proceedings, especially those criminal proceedings that may
lead to deprivation of liberty.
That promise is left unfulfilled today. While this case
arises in the context of bail hearings, the Majority’s holding
will reverberate far beyond the confines of the Magistrates’
basement courtroom, with troubling consequences for a wide
range of judicial and other governmental proceedings. Public
dialogue is only as rich as the information on which it is based,
but today’s decision covers the public’s ears and shrouds the
public’s eyes. Because that decision conflicts with our prece-
dent and will inflict deep and lasting harms on the right of ac-
cess and the values that right serves, I respectfully dissent.
41