Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510

Delaware amended its code to authorize court-run arbitration for business disputes, creating a state-sponsored arbitration program in the Court of Chancery.
Participation requires at least one party to be a Delaware business entity and excludes consumers; disputes must involve at least $1,000,000 in controversy.
Arbitrations occur in a Delaware courthouse, during normal business hours, with rules similar to, but modifiable from, regular Chancery procedures; confidentiality is presumed.
Arbitration petitions are not part of public docketing, attendance is limited to parties and their representatives, and materials are confidential; appeals proceed to the Delaware Supreme Court under confidentiality.
The Coalition for Open Government challenged confidentiality as violating the First Amendment right of public access, prompting district court judgment for open-records advocates.
The Third Circuit held that Delaware’s statute and rules violate the First Amendment’s public-access right to these state-sponsored arbitrations, applying the experience-and-logic test.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the First Amendment confer a right of access to Delaware’s government-sponsored arbitration?	Coalition argues confidentiality violates public access.	Appellants argue sealed proceedings are not required to be open like civil trials.	Yes; the Court finds a First Amendment right of access.
Does the experience-and-logic test support openness of Delaware’s arbitration?	History shows openness to civil trials and government proceedings; arbitration shares open traits.	Delaware’s process resembles private arbitration; confidentiality is essential to function.	Yes; openness is warranted under experience and logic.
Are confidentiality provisions in § 349(b) and Rules 97(a)(4) and 98(b) constitutionally infirm?	Confidentiality violates public access under the First Amendment.	Most confidentiality provisions survive constitutional scrutiny with tailored protections.	Partially; § 349(b) and Rules 97(a)(4), 98(b) are unconstitutional; severability may preserve other provisions.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. Supreme Court 1980) (right of public access to trials)
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (U.S. Supreme Court 1984) (public access to voir dire and prelim hearings)
Press-Enterprise Co. v. Superior Court, 2, 478 U.S. 1 (U.S. Supreme Court 1986) (economic test for access to preliminary hearings)
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (federal civil-trial public-access precedent)
North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) (deportation/hearings open/limited openness framework)
PG Publ’g Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013) (voting process and access history informed by openness)
Capital Cities/ABC, Inc. v. Chester, 797 F.2d 1164 (3d Cir. 1986) (en banc; openness of public records)
El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (U.S. Supreme Court 1993) (preliminary criminal hearings; cited for context on openness)
Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (U.S. Supreme Court 2006) (constitutional severability and scope principles)
Alaska Airlines v. Brock, 480 U.S. 678 (U.S. Supreme Court 1987) (severability and constitutional removal of unconstitutional parts)