The Volokh Conspiracy

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First Amendment Right of Access Applies to Appellate Oral Arguments,

and not just to trials:


From yesterday's order of a Pennsylvania appellate court in Hangey v. Husqvarna Professional Products, Inc.—unsurprising, but good to see, and illustrative of the broader legal principle:

[T]he request by Appellees (hereinafter referred to as "Husqvarna") to essentially close the argument scheduled for June 3, 2020, and of the responses filed by Appellants (hereinafter "Hangey") … is … DENIED for the following reasons:…

2. In Appellants' answer filed on June 1, 2020, Appellants specify and assure that the alleged, confidential information will not be divulged at oral argument:

"[A]rguing counsel for plaintiffs [Howard Bashman of How Appealing fame -EV] does not intend to refer during oral argument specifically to the precise totals of Husqvarna's annual sales throughout the United States during the years 2014 through 2016. Arguing counsel for plaintiffs will not refer to Husqvarna's annual sales throughout the entirety of Pennsylvania during the years 2014 through 2016, as that data is simply not relevant to this appeal and has not even been mentioned in the briefing of this appeal. And arguing counsel for plaintiffs during oral argument only intends to refer generally, within a $10,000 range, to Husqvarna's sales figures for Philadelphia County during the years 2014 through 2016. None of this information threatens to cause any competitive harm to Husqvarna …."

3. In light of the staleness of the alleged confidential information, and of the limitations on its use as stated in paragraph 2 above, there are no compelling reasons to close the argument from the public.

4. We are mindful that the existence of a common law right of access to judicial proceedings and inspection of judicial records is beyond dispute. R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. 1993). Pennsylvania courts have long recognized a constitutional right of public access to judicial proceedings based on Article I, Section 11 of the Pennsylvania Constitution, which provides that "[a]ll Courts shall be open." Pa. Const. Art I, § 11. "The right of public access to judicial proceedings has an independent basis in the common law as well as in the United States Constitution." PA ChildCare v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005). In the words of our former colleague, the Honorable Richard B. Klein, the first amendment of the United States Constitution, when read together with the aforesaid provision in the Pennsylvania Constitution and the established common law, reference a "mandate" for open and public courtrooms. In re M.B., 819 A.2d 59, 61 (Pa. Super. 2003)….