The Third Circuit held today in Delaware Coalition for Open Government v. Strine that a state-run arbitration program over which a judge presides and that results in an enforceable judgment is subject to the First Amendment right of access to judicial proceedings. The key question in the case was whether these proceedings should be treated like civil proceedings, which are presumptively public (and to which the First Amendment applies, according to all courts of appeals to consider the question), or arbitration proceedings, which are often private. Considering the nature of each type of proceeding, and comparing them to Delaware's proceeding, the court concluded:
Although Delaware’s government-sponsored arbitrations share
characteristics such as informality, flexibility, and limited review with private arbitrations, they differ fundamentally from
other arbitrations because they are conducted before active judges in a courthouse, because they result in a binding order of the Chancery
Court, and because they allow only a limited right of appeal.
The court therefore held that the proceedings at issue are more akin to civil proceedings and applied the First Amendment right of access.
Public Citizen filed an amicus brief in support of the result the court reached.