PG Publishing Co v. Carol Aichele
705 F.3d 91
3rd Cir.2013Background
- PG Publishing challenged 25 Pa. Stat. Ann. § 3060(d) restricting access to polling places as applied in Allegheny County and Beaver County.
- Plaintiff alleged a First Amendment right to gather news at polling places and an Equal Protection violation due to selective enforcement.
- Defendants included Secretary of State Aichele, the Allegheny County Board of Elections, and the county Elections Division manager Wolosik.
- District Court dismissed Count I as non-vested in First Amendment rights to polling-place access and Count II for lack of selective-enforcement proof; consent decree was denied.
- Court held polling places are nonpublic forums and applied Richmond Newspapers/experience-and-logic test framework to election process; rejected Beacon Journal approach and affirmed dismissal and denial of consent decree.
- Historical/constitutional context shows voting openness has evolved toward less openness, with a soft test pending on Voter ID.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a First Amendment right to gather news at polling places | PG asserts a First Amendment right exists for news gathering | Aichele argues no greater right than the public; §3060(d) is general and nonpublic-forum | No enhanced First Amendment right; polling place is nonpublic forum; right denied |
| Whether polling place access is governed by traditional forum analysis | Appellant seeks forum analysis to gain heightened access | Polling place is nonpublic; access reviewed under reasonableness standard | Experience-and-logic framework applies; not traditional public forum |
| Whether the Right of Access is subject to strict scrutiny | Right to access should be strictly scrutinized | Nonpublic forum allows reasonable, content-neutral restrictions | Not subject to strict scrutiny; restrictions pass as reasonable for nonpublic forum |
| Whether selective enforcement of § 3060(d) violates Equal Protection | Some newspapers were allowed access in some counties | Different counties autonomously apply §3060(d) with no systemic discrimination | No Equal Protection violation; no proof of intentional discrimination or class-of-one violation |
Key Cases Cited
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (balance news gathering with other interests; no special press access right)
- Zemel v. Rusk, 381 U.S. 1 (U.S. 1965) (right to speak/publish not coextensive with right to gather information)
- Pell v. Procunier, 417 U.S. 817 (U.S. 1974) (right to gather news not greater than general public; security/other interests may prevail)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. 1980) (experiences-and-logic framework for right of access to government processes)
- Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (U.S. 1982) (open trials with strong openness justification; strict scrutiny if restricted)
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (U.S. 1986) (two-prong test for access to pretrial hearings)
- Burson v. Freeman, 504 U.S. 191 (U.S. 1992) (history of voting; traditional openness; distinguishes speech-protection contexts)
- Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir. 1986) (expansion of Richmond Newspapers to government information/records context)
- First Amendment Coalition v. Judicial Inquiry and Review Bd., 784 F.2d 467 (3d Cir. 1986) (application of experience-and-logic beyond litigation proceedings)
- Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177 (3d Cir. 1999) (extension of access rights to governmental meetings; dicta on openness)
- North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 199 (3d Cir. 2002) (application of experience-and-logic to deportation proceedings; openness considerations)
- Beacon Journal Publ’g Co. v. Blackwell, 389 F.3d 683 (6th Cir. 2004) ( Sixth Circuit on polling-place access; rejected for forum-analysis approach)