PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3863

_____________

PG PUBLISHING COMPANY, d/b/a 

The Pittsburgh Post-Gazette,

 Appellant

v.

CAROL AICHELE, in her capacity as Secretary 

of The Commonwealth; ALLEGHENY COUNTY 

BOARD OF ELECTIONS; MARK WOLOSIK, 

in his capacity as Division Manager of the 

Allegheny County Elections Division

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE WESTERN DISTRICT OF 

PENNSYLVANIA

(D.C. Civ. Action No. 2:12-cv-00960)

District Judge: Honorable Nora B. Fischer

______________

Argued October 24, 2012

______________
2

Before: HARDIMAN, GREENAWAY, JR., and 

VANASKIE, Circuit Judges.

(Opinion Filed: January 15, 2013)

______________

Frederick N. Frank, Esq. [ARGUED]

Ellis W. Kunka, Esq.

Frank, Gale, Bails, Murcko & Pocrass

707 Grant Street

Gulf Tower, 33rd Floor 

Pittsburgh, PA 15219

Counsel for Appellant PG Publishing Company

Kemal A. Mericli, Esq. [ARGUED]

Office of Attorney General of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Counsel for Appellee Carol Aichele

George M. Janocsko, Esq.

Andrew F. Szefi, Esq.

Office of Allegheny County

Law Department

445 Fort Pitt Boulevard

300 Fort Pitt Commons Building

Pittsburgh, PA 15219
3

Allan J. Opsitnick, Esq.

564 Forbes Avenue

Suite 1301

Pittsburgh, PA 15219

Counsel for Appellees Allegheny County Board of 

Elections and Mark Wolosik

Teri L. Henning, Esq.

Pennsylvania Newspaper Association

3899 North Front Street

Harrisburg, PA 17110

Counsel for Pennsylvania Newspaper Association, 

Amicus Appellant

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

The instant case calls upon us to decide whether a state 

statute restricting access to a polling place infringes on the 

media‟s First Amendment right to gather news. Appellant PG 

Publishing Company (“Appellant” or “PG”) seeks review of 

the District Court‟s decision to dismiss its suit against 

election officials for the Commonwealth of Pennsylvania. 

Specifically, Appellant alleges violations of the First 

Amendment and the Equal Protection Clause of the 

Fourteenth Amendment. Appellant also seeks review of the 

District Court‟s refusal to enter a consent decree agreed to by 
4

PG and one of the parties relating to the suit. For the reasons 

set forth below, we will affirm the District Court‟s decisions.

I. Background

Appellant brought suit pursuant to 42 U.S.C. § 1983 

against (1) Appellee Carol Aichele (“Appellee”) in her 

capacity as the Secretary of State of the Commonwealth of 

Pennsylvania, (2) the Allegheny County Board of Elections, 

and (3) Mark Wolosik in his capacity as the Division 

Manager for the County Elections Division (collectively, 

“Defendants”).

1

 Appellant‟s suit addressed the 

constitutionality of 25 Pa. Stat. Ann. § 3060(d), a portion of 

the Pennsylvania Election Code mandating that

[a]ll persons, except election officers, clerks, 

machine inspectors, overseers, watchers, 

persons in the course of voting, persons 

lawfully giving assistance to voters, and peace 

and police officers, when permitted by the 

provisions of this act, must remain at least ten 

(10) feet distant from the polling place during 

the progress of the voting.

25 Pa. Stat. Ann. § 3060(d). A “polling place” is “the room

provided in each election district for voting at a primary or 

election.” 25 Pa. Stat. Ann. § 2602(q).

 

1

The Board and Mr. Wolosik are not participating in

this appeal.
5

In its Amended Complaint, Appellant asserted two 

claims:2(1) that § 3060(d) infringed on its First Amendment 

“right to access and gather news at polling places” (“Count 

I”), and (2) that Defendants‟ selective enforcement of § 

3060(d) presented a violation of the Equal Protection Clause 

of the Fourteenth Amendment (“Count II”). (App. at 81a84a.)

In support of Count I, Appellant alleged that “its 

reporters and photographers had previously been denied 

access to polling places to gather news” in Allegheny and 

Beaver Counties. (Id. at 76a.) Appellant also alleged that, in 

October 2008, Mr. Wolosik and the Allegheny County Board 

of Elections notified Appellant that not only was “any type of 

recording inside the polling place . . . prohibited under [the 

County‟s] policy,” but that “the Pennsylvania Election Code 

limited [Appellant‟s] reporters and photographers from being 

inside polling places” altogether.3 (Id. at 76a.) Appellant 

 

2

The Amended Complaint purported to allege three 

causes of action; however, the third count appears to be a 

request for injunctive relief based on Appellant‟s claim of an 

Equal Protection Clause violation.

3 At oral argument, Appellant claimed that § 3060(d), 

as applied in Allegheny County, prohibited its reporters from 

even recording in the direction of a polling place. This is not 

so. In November 2008, in a separate state proceeding, 

Appellant successfully petitioned the state court for an order, 

directing that

[Mr. Wolosik and the Allegheny County Board 

of Elections] and their agents are hereby 

prohibited from restricting or interfering with 
6

further contended that reporting from within polling places 

during the November 6, 2012 election was particularly 

important because “for the first time, the Voter ID Law, 

House Bill No. 934, Session of 20114[was to be] enforced, 

which [would have required] all electors to present a 

government-approved photo ID in order to be allowed to vote 

in any election in the Commonwealth.”5 (Id. at 79a-80a.) 

 

attempts of Plaintiff‟s agents and employees to 

photograph activities in or around polling places 

so long as Plaintiff‟s agents and employees are 

located in areas accessible to the public or into 

which they have otherwise been lawfully 

admitted. No photography shall be taken from 

inside the polling place or within ten (10) feet 

of the entrance of the polling place.

(App. at 76a.) At issue in the state court was Allegheny 

County‟s policy of prohibiting filming from within areas 

accessible to the public and beyond the 10-foot boundary 

imposed by § 3060(d). Despite the language in the order, the 

state court did not have occasion to rule on the 

constitutionality of § 3060(d) itself. 

4 Nothing in our decision today relates to the Voter ID 

Law. We mention it only because Appellant has alluded to its 

purported relevance in the Amended Complaint and briefs.

5 After Appellant filed its Amended Complaint, the 

Pennsylvania courts suspended the operative provision in the 

law. See Applewhite v. Commonwealth, No. 330 M.D. 2012, 

2012 WL 4497211 (Pa. Commw. Ct. Oct. 2, 2012). At oral 

argument, both counsel for Appellant and Appellee conceded 

that this past election represented a “soft test” of the law, in 
7

Appellant sought (1) a declaratory judgment holding § 

3060(d) to be unconstitutional as applied and (2) 

compensatory damages for past infringement of its First 

Amendment rights.

6

To establish its equal protection claim in Count II, 

Appellant alleged that its reporters had been “denied access to 

photograph in polling places in Allegheny and Beaver 

Counties.” (Id. at 77a.) At the same time, Appellant set out a 

number of examples where reporters from other Pennsylvania 

newspapers had the opportunity to take photographs inside 

polling places in counties other than Allegheny or Beaver 

Counties. Finally, Appellant alleged that its own reporters 

previously had been allowed inside polling places in 

Allegheny County “for the purpose of reporting upon and 

photographing the electoral process only as it relates [to 

certain] public figures.” (Id. at 79a.) Appellant then 

requested (1) a declaratory judgment that the counties‟ 

application of § 3060(d) violates the Equal Protection Clause 

and (2) injunctive relief (either preliminary or permanent) 

against further discrimination.

 

that identification may have been requested, but was not 

required.

6

In setting out Count I, Appellant alleged that § 3060 

“impermissibly restrict[ed its] First Amendment right to 

gather news and, thus, [was] facially unconstitutional.” (App. 

at 82a.) Read in the context of Appellant‟s other allegations, 

we do not take this language as asserting a facial challenge to 

§ 3060. Appellant conceded as much during oral argument.
8

Pursuant to Federal Rule of Civil Procedure 12(b)(6), 

Defendants moved to dismiss the suit and the District Court 

granted the motion. As to Count I, the District Court noted 

that § 3060(d) applies to an individual‟s physical location and 

not his speech, therefore obviating the need to determine 

whether a polling place was a public forum. PG Publ’g Co. 

v. Aichele, No. 12-CV-960, 2012 WL 4796017, at *22 (W.D. 

Pa. Oct. 9, 2012). The District Court then analyzed the 

statute under the rubric of content-neutral laws applied in 

nonpublic fora and held that PG‟s First Amendment rights 

were not abridged given that § 3060(d) is a “[content]-neutral 

law of general application seeking to protect an individual‟s 

„right to cast a ballot in an election free from the taint of

intimidation and fraud.‟” Id. at *27 (quoting Burson v. 

Freeman, 504 U.S. 191, 211 (1992)).

As to the equal protection claim in Count II, the 

District Court held that the examples of inconsistent 

enforcement of § 3060(d) alleged in Appellant‟s Amended 

Complaint did not rise to the level of a constitutional

violation. Specifically, the District Court held that Appellant

failed to establish that “a single election official ha[d]

discriminated against reporters working for” Appellant in 

applying § 3060(d). Id. at *29 (emphasis in original).

Additionally, in September 2012 — roughly a month 

after Defendants filed their motion to dismiss — Appellant 

and the Allegheny County Board of Elections moved jointly 

for entry of a consent decree which they argued, in essence, 

resolved the dispute (“Consent Order”). The Consent Order 

permitted Appellant and its reporters to enter polling places in 

Allegheny County for purposes of recording the sign-in 

process. This permission was subject to various restrictions 

including, for example, an obligation for Appellant‟s 
9

personnel to stop recording if voters objected. The Consent 

Order was also explicitly “conditioned upon [Appellant] 

discontinuing its action against the Commonwealth.” (App. 

at 142a.) Appellee, not a party to the Consent Order, objected

that the Order was illegal in that it essentially permitted 

Appellant to act in contravention of a valid state law (§ 

3060(d)). The District Court agreed and refused to enter the 

Order, noting that the parties could not “use a consent decree 

to enforce „terms which would exceed their authority and 

supplant state law.‟” Id. at *32 (quoting Keith v. Volpe, 118 

F.3d 1386, 1393 (9th Cir. 1997)).

PG filed a timely appeal from the District Court‟s 

aforementioned rulings. Given that Election Day was fast 

approaching, we granted the parties‟ motion to expedite the 

proceedings. On November 1, 2012, we entered an order 

affirming the District Court‟s rulings. This opinion sets forth 

the bases of the Order.

II. Standard of Review

We exercise plenary review over the District Court‟s 

grant of a motion to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 

121, 128 (3d Cir. 2010). “[I]n deciding a motion to dismiss, 

all well-pleaded allegations of the complaint must be taken as 

true and interpreted in the light most favorable to the 

[Appellant], and all inferences must be drawn in [its favor].” 

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(citation omitted). To withstand a Rule 12(b)(6) motion to 

dismiss, “a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(internal quotation marks omitted).
10

We review the District Court‟s ruling regarding the 

Consent Order for an abuse of discretion, see NutraSweet Co. 

v. Vit-Mar Enters., 176 F.3d 151, 153 (3d Cir. 1999), and 

look to see whether the decision was “arbitrary, fanciful or 

clearly unreasonable.” Democratic Nat’l Comm. v. 

Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012) 

(quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 

532, 542 (3d Cir. 2007)); see also Hanover Potato Prods., 

Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (“An abuse 

of discretion arises when the district court‟s decision rests 

upon a clearly erroneous finding of fact, an errant conclusion 

of law or an improper application of law to fact.” (internal 

quotation marks omitted)).

III. The Right of Access

Appellant argues that it has a constitutionally protected 

right of access to gather news at the polling place and that any 

restriction on this right must be reviewed under strict 

scrutiny. While PG never explicitly claims that the media 

should have greater First Amendment rights than the general 

public, Appellant‟s arguments hinge on one particular 

principle: that the Framers “thoughtfully and deliberately 

selected [the press] to improve our society and keep it free.” 

(Appellant‟s Br. 15 (quoting Mills v. Alabama, 384 U.S. 214, 

219 (1966)).7

 

7

The brief filed by the Pennsylvania Newspapers 

Association as amicus curiae advances a similar point. In 

describing its interest as an amicus, the Association notes that 

it “wishes to participate in this matter [in part] to stress the 

policy considerations that mandate an interpretation of the 

Pennsylvania Election Code and the First Amendment to 
11

Appellee counters that (1) Appellant enjoys no greater 

right to gather news than what has been granted to the general 

public, (2) that § 3060(d) is a law of general applicability 

which incidentally burdens Appellant‟s right to gather news, 

and (3) that a polling place is a nonpublic forum thereby 

implicating only a modest constitutional review — one that § 

3060(d) passes.

In reviewing the constitutional validity of a statute, 

“[t]he first issue to be addressed . . . is whether a First 

Amendment right exists, for „if it [does] not, we need go no 

further.‟” Kreimer v. Bureau of Police for Town of 

Morristown, 958 F.2d 1242, 1250-51 (3d Cir. 1992) (second 

alteration in original) (quoting Cornelius v. NAACP Legal 

Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). We 

therefore consider whether a First Amendment right to gather 

news exists, and if it does, whether Appellant enjoys its 

protections.

A. The Right of Access is Limited

It is beyond peradventure that “[t]he constitutional

guarantee of a free press „assures the maintenance of our 

political system and an open society,‟ and secures „the 

paramount public interest in a free flow of information to the 

people concerning public officials.‟” Pell v. Procunier, 417 

U.S. 817, 832 (1974) (citation omitted); see also Pennekamp 

v. Florida, 328 U.S. 331, 354-55 (1946) (Frankfurter, J., 

concurring) (“Without a free press there can be no free 

 

safeguard the right of the news media to observe and report 

on the election process in the Commonwealth of 

Pennsylvania.” (Amicus Br. 1.)
12

society. Freedom of the press, however, is not an end in itself 

but a means to the end of a free society.” (footnote omitted)). 

For this reason, the Supreme Court has recognized that the 

First Amendment — in addition to protecting freedom of 

speech and the press — must also contain protections for 

some news-gathering activity. See, e.g., Branzburg v. Hayes, 

408 U.S. 665, 681 (1972) (“[W]ithout some protection for 

seeking out the news, freedom of the press could be 

eviscerated.”).

Yet, the Supreme Court has held, time and again, that 

this First Amendment right of access to information is 

qualified and subject to limitations. In Zemel v. Rusk, the 

Supreme Court held that “[t]he right to speak and publish 

does not carry with it the unrestrained right to gather 

information.” 381 U.S. 1, 17 (1965). Going further, the 

Court cautioned that:

[t]here are few restrictions on action which 

could not be clothed by ingenious argument in 

the garb of decreased data flow. For example, 

the prohibition of unauthorized entry into the 

White House diminishes the citizen‟s 

opportunities to gather information he might 

find relevant to his opinion of the way the 

country is being run, but that does not make 

entry into the White House a First Amendment 

right.

Id. at 16-17; see also Branzburg, 408 U.S. at 684 (“It has 

generally been held that the First Amendment does not 

guarantee the press a constitutional right of special access to 

information not available to the public generally.”); Pell, 417 

U.S. at 834 (“The First and Fourteenth Amendments bar 
13

government from interfering in any way with a free press. 

The Constitution does not, however, require government to 

accord the press special access to information not shared by 

members of the public generally.”). 

Appellants are therefore correct in arguing that the 

First Amendment encompasses a right of access for newsgathering purposes. However, we decline to hold — as 

Appellant and the amicus curiae hope — that the press is 

entitled to any greater protection under this right than is the 

general public. The Supreme Court‟s pronouncement on this 

issue is unequivocal: “[T]he First Amendment does not 

guarantee the press a constitutional right of special access to 

information not available to the public generally.” 

Branzburg, 408 U.S. at 684. Thus, while the First 

Amendment does protect Appellant‟s right of access to gather 

news, that right does not extend to all information.

B. The Right of Access is Distinct from 

the Right to Free Speech

Before proceeding further, we note that the word 

“access” may cause some consternation.

8

 Much of First 

 

8

The plurality opinion in Richmond Newspapers, Inc. 

v. Virginia, 448 U.S. 555 (1980), recognized this potential 

issue and noted that the name of the right was immaterial —

the distinction lay in what the right protected:

It is not crucial whether we describe this right to 

attend criminal trials to hear, see, and 

communicate observations concerning them as 

a „right of access‟ or a „right to gather 

information,‟ for we have recognized that 
14

Amendment jurisprudence is couched in the language of 

access. For example, when addressing traditional issues of 

free speech on government property, courts apply the wellestablished forum analysis (where the essential formulation is 

whether the government may restrict “access” to a particular 

forum). See Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 44-46 (1982) (discussing the 

constitutional difference between restriction on access to 

public and nonpublic fora in the language of a “right of access 

to public property”). 

Importantly, we do not address here limitations on 

access to a forum for speech purposes; indeed, we are not 

concerned here with expressive conduct or speech at all. 

(Appellant conceded as much at the beginning of oral 

argument.) Rather, our focus is on access to information.

9

 

 

„without some protection for seeking out the 

news, freedom of the press could be 

eviscerated.‟

Id. at 576 (footnote omitted) (citations omitted) (quoting, 

among others, Branzburg, 408 U.S. at 681). 

9

Likewise, we do not address here the right to listen 

— a concept analogous to, but still distinct from the right at 

issue in this case. See Va. State Bd. of Pharm. v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748, 757 (1976); see also 

Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) 

(Brennan, J., concurring) (“It would be a barren marketplace 

of ideas that had only sellers and not buyers.”). The right to 

listen is derivative of an individual‟s right to speak, for the 

Supreme Court has held that “where a [willing] speaker 

exists . . . the protection afforded is to the communication, to 
15

Thus, we do not believe that the traditional forum analysis is

apposite here. If we were to apply such a framework, the 

government would be free to shut down nonpublic fora 

completely, thereby hiding any activities behind a veil of 

secrecy.

10

 It cannot be that the First Amendment would 

 

its source and to its recipients both.” Va. State Bd. of Pharm., 

425 U.S. at 756 (footnote omitted). Our own jurisprudence

likewise maintains that “where one enjoys a right to speak, 

others hold a „reciprocal right to receive‟ that speech, which 

„may be asserted‟ in court.” Pa. Family Inst., Inc. v. Black, 

489 F.3d 156, 165-66 (3d Cir. 2007) (“In determining 

standing, the right to listen depends entirely on the 

infringement on the rights of a willing speaker.”). 

Interestingly, while courts have sometimes cast the right to 

listen in the mold of “the media‟s right to gather news,” see, 

e.g., Daily Herald Co. v. Munro, 838 F.2d 380, 384 (9th Cir. 

1988), that is merely a matter of semantics — those cases still 

dealt with questions of speech and the forum analysis.

10 We take this opportunity to make explicit that which 

has been implicit in our preceding discussion: A polling 

place is a nonpublic forum. See Burson, 504 U.S. at 201-06 

(plurality) (discussing the history of voting and the longevolving pattern of laws limiting expression in and access to 

the polling place); id. at 216 (Scalia, J., concurring) (“It is 

doctrinally less confusing to acknowledge that the environs of 

a polling place, on election day, are simply not a „traditional 

public forum‟ — which means that they are subject to speech 

restrictions that are reasonable and viewpoint neutral.”); 

Marlin v. D.C. Bd. of Elections & Ethics, 236 F.3d 716 (D.C. 

Cir. 2001) (“The forum here, the interior of a polling place, is 

neither a traditional public forum nor a governmentdesignated one. It is not available for general public 
16

countenance such a course of action. See Smith v. Daily Mail 

Publ’g Co., 443 U.S. 97, 104 (1979) (“A free press cannot be 

made to rely solely upon the sufferance of government to 

supply it with information.”).11

 

discourse of any sort.” (citing Burson, 504 U.S. at 201-06)); 

see also United Food & Commercial Workers Local 1099 v. 

City of Sidney, 364 F.3d 738, 749-50 (6th Cir. 2004); Cotz v. 

Mastroeni, 476 F. Supp. 2d 332, 364 (S.D.N.Y. 2007) 

(“Polling places clearly are non-public fora and voters present 

are subject to various First Amendment restrictions, including 

those based on content.”). Despite Appellant‟s conclusory 

statement in its Amended Complaint that “[a] polling place is 

a traditional public forum under the First Amendment of the 

United States Constitution,” (App. at 80a), the weight of 

precedent holds that it is not. Moreover, Appellant can point 

to no conduct on the part of the Commonwealth — neither in 

its policy nor its practice — that would suggest an intent to 

designate the polling place otherwise. Cornelius, 473 U.S. at 

802 (O‟Connor, J.) (noting that “[t]he government does not 

create a public forum by inaction or by permitting limited 

discourse”).

11 As our discussion above should make clear: the right 

of access is distinct from the right to free speech. Thus, 

where the First Amendment does not protect a right of access 

to a particular proceeding, this fact has no bearing on any 

constitutional protections for expressive speech at the same 

proceeding. For instance, even if we find no constitutional 

protection for a right of access to the polling place, this would 

not absolve courts from undertaking a traditional forum 

analysis in determining whether an individual has the right to 

speak inside of the polling place.
17

For this reason, we consider Appellant‟s citation to 

cases such as Munro, which focused on exit-polling, to be of 

little help. Daily Herald Co. v. Munro, 838 F.2d 380, 382

(9th Cir. 1988). The act of exit-polling has been held by our

sister circuits to constitute protected expressive speech. See, 

e.g., id. at 384 (“The media plaintiffs‟ exit polling constitutes 

speech protected by the First Amendment, not only in that the 

information disseminated based on the polls is speech, but 

also in that the process of obtaining the information requires a 

discussion between pollster and voter.”). The analysis that 

these courts apply to laws curtailing exit-polling activities —

i.e., the traditional forum analysis — is therefore distinct from 

what is necessary here.

Appellant also urges that the instant case should be 

evaluated under the rubric of a prior restraint. We disagree. 

While it is true that restricting access to information may

work a prior restraint on speech, see In re Express-News 

Corp., 695 F.2d 807, 810 (5th Cir. 1982); United States v. 

Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978), this principle 

is not unlimited. For

[i]t is one thing to say that a journalist is free to 

seek out sources of information not available to 

members of the general public, that he is 

entitled to some constitutional protection of the 

confidentiality of such sources, and that the 

government cannot restrain the publication of 

news emanating from such sources. It is quite 

another thing to suggest that the Constitution 

imposes upon government the affirmative duty 

to make available to journalists sources of 

information not available to members of the 

public generally. This proposition finds no 
18

support in the words of the Constitution or in 

any decision of this Court.

Pell, 417 U.S. at 834-35 (1974) (citing, among others, N.Y.

Times Co. v. United States, 403 U.S. 713 (1971)). Thus, the 

case at hand does not implicate the “kind of classic prior 

restraint that requires exacting First Amendment scrutiny.” 

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34 (1984); 

see also United States v. Cianfrani, 573 F.2d 835, 861 (3d 

Cir. 1978) (holding that there was “[n]o prior restraint . . .

involved” where the court imposed restrictions on 

information adduced at a pre-trial suppression hearing).12

For this reason, we distinguish those cases cited by 

Appellant that concern court orders prohibiting members of 

the press (and others) from contacting jurors. See, e.g., In re 

 

12 We do not come to this conclusion lightly. Systems 

of prior restraint are rightly considered to be antithetical to 

the Constitution and thereby come before the courts “bearing 

a heavy presumption against [their] constitutional validity.” 

N.Y. Times Co. v. United States, 403 U.S. at 714; see also 

Mills v. Alabama, 384 U.S. 214, 219 (1966) (“It is difficult to 

conceive of a more obvious and flagrant abridgement of the 

constitutionally guaranteed freedom of the press [than a 

restraint on the publication of editorials].”). But “[t]he phrase 

„prior restraint‟ is not a self-wielding sword. Nor can it serve 

as a talismanic test.” Kingsley Books, Inc. v. Brown, 354 U.S. 

436, 441 (1957). We find that the instant case — where the 

law concerns only access (not even subsequent use) to already 

nonpublic information — does not necessarily implicate the 

exacting constitutional scrutiny reserved for evaluating prior 

restraints.
19

Express-News Corp., 695 F.2d 807; Sherman, 581 F.2d 1358. 

Here, the government is not restricting access to information 

per se; rather it is restricting access to a particular proceeding 

(i.e., the voting process that occurs inside polling places). 

Unlike the juror-interview cases, therefore, Appellant is free 

to contact voters and individuals working in a polling place in 

order to obtain information about the goings-on inside. There 

is no blanket gag order curtailing access to this information.13

Instead, we find that the analysis in this case turns on 

the question of whether the source of information (here, 

access to the polling place) should be “available to members 

of the public generally.” Thus, we must determine the proper 

 

13 We have also defined the right of access as being 

distinct from the right of publication (which, as explained 

below, is a particular kind of prior restraint):

The obvious must also be stated. The 

Coalition‟s claims are based on an alleged right 

of access, not a right of publication. Although 

both have their roots in the First Amendment, 

these principles are doctrinally discrete, and 

precedents in one area may not be 

indiscriminately applied to the other. In 

general, the right of publication is the broader 

of the two, and in most instances, publication 

may not be constitutionally prohibited even 

though access to the particular information may 

properly be denied.

First Amendment Coal. v. Judicial Inquiry and Review Bd., 

784 F.2d 467, 471-72 (3d Cir. 1986).
20

analytical framework for evaluating this question. As the 

discussion below demonstrates, the matter here concerns 

information about government bodies, their processes, and 

their decisions. As such, our analysis of the public‟s right to 

access the source of this information turns on both historical 

and structural considerations. We must balance the interests 

of the government on the one hand and those of the press and 

public on the other.

C. The Right of Access in the Supreme Court: The 

Experience and Logic Test

The Supreme Court has suggested that the existence of 

a First Amendment right to gather news (i.e., the right of 

access to the source of information or a government process) 

is best evaluated via a balancing test. The necessity of such a 

test was first noted in Branzburg v. Hayes, where a reporter 

had claimed that testifying before a grand jury about 

confidential sources would violate his right to gather news.

408 U.S. 665. A plurality of the Court acknowledged that, 

“without some [First Amendment] protection for seeking out 

the news, freedom of the press could be eviscerated.” Id. at 

681. On the other hand, the plurality did not believe that this 

protection for news-gathering extended endlessly. Id. at 681-

83 (“[The press] has no special immunity from the application 

of general laws [and] no special privilege to invade the rights 

and liberties of others.”). Thus, they affirmed the principle 

that the press is not guaranteed a “constitutional right of 

special access to information not available to the public 

generally.” Id. at 684 (citing, inter alia, Zemel, 381 U.S. at

16-17, and N.Y. Times Co. v. United States, 403 U.S. at 728-

30 (Stewart, J., concurring)).
21

Having set the operative framework, the plurality then 

engaged in a balancing inquiry to determine which set of 

rights should prevail. In his concurrence, Justice Powell 

summarized the sentiment of the plurality and his own 

position: “The asserted claim to privilege should be judged 

on its facts by the striking of a proper balance between 

freedom of the press and the obligation of all citizens to give 

relevant testimony with respect to criminal conduct.” Id. at 

710. He added that “[t]he balance of these vital constitutional 

and societal interests on a case-by-case basis accords with the 

tried and traditional way of adjudicating such questions.” Id.

Subsequently, the Court embarked on a similar 

balancing inquiry to uphold a California Department of 

Corrections regulation that prohibited the press and others 

from interviewing specific inmates. See Pell, 417 U.S. at 

831-32. Prior to the enactment of the regulation in question, 

journalists “had virtually free access to interview any 

individual inmate” while non-press members of the public did 

not benefit from such an unrestricted visitation policy. Id. at 

831. Journalists claimed that the new regulation, by limiting 

their news gathering activities, violated the First Amendment 

protections for freedom of the press. Id. at 820-21. Holding 

that the press does not enjoy any greater constitutional 

protection than does the general public, the Court ultimately 

agreed with the prison administrators that the interest in 

preserving security in the prisons outweighed the press‟s right 

to gather news, partly based on the fact that the press had an 

alternative means of obtaining this information. Id. at 829-

34.

But while the opinions in Branzburg and Pell

presented an ad hoc approach, the case of Richmond 

Newspapers, Inc. v. Virginia suggested a more standardized 
22

framework for evaluating the right of access to information 

about government processes. 448 U.S. 555 (1980) (plurality). 

In that case, reporters sought access to a courtroom that had 

been closed to the public to prevent undue dissemination of 

witness-related information, arguing that there were less 

restrictive means for ensuring a fair trial. The plurality

reaffirmed the First Amendment‟s protection of the press and 

recognized that the First Amendment necessarily also 

“„prohibit[ed] government from limiting the stock of 

information from which members of the public may draw.‟” 

Id. at 575-76 (quoting First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 783 (1978)). Finding that access to trials could 

not be “foreclosed arbitrarily,” the Richmond Newspapers

opinion suggested the framework for a more meaningful test 

on restrictions in nonpublic fora such as a courtroom. Id. at 

577.

The plurality acknowledged that courtrooms were 

nonpublic fora, but recognized the important role of their 

historical openness to the public — namely, that the public 

provides the oversight necessary to maintain the integrity of 

the judicial process. Id. at 573 n.9. As for the prison cases 

(e.g., Pell), the plurality distinguished them on the ground 

that trials were traditionally open to the public whereas 

prisons were not. Id. at 576 n.11. In addition to this

historical tradition of openness, the plurality also noted that 

the presence of the public and its representatives “historically 

has been thought to enhance the integrity and quality of what 

takes place” in the courtroom. Id. at 578.

Justice Brennan, writing in a concurrence, summarized 

“two helpful principles” drawn from the plurality‟s opinion:
23

First, the case for a right of access has special 

force when drawn from an enduring and vital 

tradition of public entree to particular 

proceedings or information. Such a tradition 

commands respect in part because the 

Constitution carries the gloss of history. More 

importantly, a tradition of accessibility implies 

the favorable judgment of experience. Second, 

the value of access must be measured in 

specifics. Analysis is not advanced by 

rhetorical statements that all information bears 

upon public issues; what is crucial in individual 

cases is whether access to a particular 

government process is important in terms of 

that very process.

Id. at 589 (citation omitted) (Brennan, J., concurring). This 

distillation — effectively juxtaposing the People‟s historical 

practice of and interest in monitoring government with the 

State‟s historical practice of and interest in keeping certain 

information from public view — formed the basis for what 

has become the Court‟s balancing test for evaluating whether 

a right of access to government information exists.

Indeed, the Court embraced this framework in a 

subsequent right of access case, Globe Newspaper Co. v. 

Superior Court for Norfolk County, 457 U.S. 596 (1982), 

where the press sought access to a criminal trial involving the 

sexual abuse of underage victims. Writing for the majority, 

Justice Brennan explained why a right of access attached to 

criminal trials:

First, the criminal trial historically has been 

open to the press and general public. . . . And 
24

since that time the presumption of openness has 

remained secure. . . . Second, the right of access 

to criminal trials plays a particularly significant 

role in the functioning of the judicial process 

and the government as a whole. . . . In sum, the 

institutional value of the open criminal trial is 

recognized in both logic and experience.

Id. at 605-06 (emphasis added). Finding that both factors 

weighed heavily in favor of openness, the Court in Globe held 

that the press had a qualified right of access because the right 

to access criminal trials is “of constitutional stature.” Id. at 

606. Consequently, the Court held that the government could 

restrict access to criminal trials only if the restriction was 

necessitated “by a compelling governmental interest, and 

[was] narrowly tailored to serve that interest.” Id. at 606-07.

Arguably the most complete statement of the Court‟s 

balancing test came in Press-Enterprise Co. v. Superior Court 

of California for Riverside County, 478 U.S. 1 (1986), in 

which the Supreme Court considered the right of access to 

preliminary hearings in criminal trials. The Court held that a 

right of First Amendment access requires a two-prong 

evaluation of “whether the place and process have historically 

been open to the press” and “whether public access plays a 

significant positive role in the functioning of the particular 

process in question.” Id. at 8. Where both prongs of the test 

are satisfied, “a qualified First Amendment right of public 

access attaches.” Id. at 9.

These three cases — Richmond Newspapers, Globe, 

and Press-Enterprise — set out a balancing test for evaluating 

whether a right of access to information about government 

bodies, their processes, and their decision exists. This 
25

framework, referred to either as the Richmond Newspapers

test or the “experience and logic” test, balances the interests 

of the People in observing and monitoring the functions of 

their government against the government‟s interest and/or 

long-standing historical practice of keeping certain 

information from public scrutiny. If a right of access exists, 

any restraint on that right is then evaluated under strict 

scrutiny. See Globe, 457 U.S. 606-07.

Our Circuit has also applied the Richmond Newspapers

balancing test in various contexts. While the Supreme Court 

decisions discussed above largely cabin the test‟s application

to situations addressing criminal proceedings, our own 

jurisprudence demonstrates a willingness to apply the test 

more broadly. Still, we have never applied Richmond 

Newspapers to a polling place or to the process of voting. As 

such, it is a matter of first impression. Thus, our focus is on 

the appropriate scope and application of the test. We look to 

our prior decisions for guidance.

D. The Experience and Logic Test in the Third Circuit

In Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 

(3d Cir. 1984), we expanded the application of Richmond 

Newspapers to civil trials. We reasoned that “[t]he Supreme 

Court‟s recognition of a First Amendment right of access to 

criminal trials is predicated on „the common understanding 

that a major purpose of that Amendment was to protect the 

free discussion of governmental affairs,‟” and that, in civil 

trials, too, the “public right of access . . . is inherent in the 

nature of our democratic form of government.” Id. at 1068-

69 (emphasis added) (quoting Globe, 457 U.S. at 604).
26

Two years later, in First Amendment Coalition v. 

Judicial Inquiry and Review Board, 784 F.2d 467 (3d Cir. 

1986), we considered a right of access claim to records of 

Pennsylvania‟s Judicial Inquiry and Review Board. 

Assuming that a right of access did exist, we considered the 

point at which this right attached under Richmond 

Newspapers. See id. at 472; see also North Jersey Media 

Group, Inc. v. Ashcroft, 308 F.3d 198, 208 (3d Cir. 2002) 

(reading First Amendment Coalition as applying the 

“experience and logic” test). While we ultimately noted that 

Board proceedings did not “have a long history of openness,”

the case illustrates our willingness to expand the application 

of the Richmond Newspapers framework beyond litigation 

proceedings. First Amendment Coal., 784 F.2d at 472; see 

also id. at 481 (Adams, J., concurring in part and dissenting in 

part) (arguing that “[t]he correct legal analysis here flows in 

large measure from the historical record” and the standards

set forth in Globe and Press-Enterprise).14

Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 

(3d Cir. 1986) (en banc), decided the same year as First 

Amendment Coalition, stands as a watershed case. That 

 

14 We have also extended the “experience and logic” 

analysis to other portions of the criminal trial process. See, 

e.g., United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir. 

1985) (determining, by “employing the historical and 

structural analysis mandated by [Richmond Newspapers, 

Globe and Press-Enterprise], whether there is a First 

Amendment right of access to indictments. Although those 

cases concerned access to judicial proceedings, no reason 

occurs to us why their analysis does not apply as well to 

judicial documents . . . ”).
27

proceeding concerned a claimed right of access to certain 

administrative records held by the Pennsylvania Department 

of Environmental Resources (“D.E.R.”). We concluded that 

Richmond Newspapers, Globe and Press-Enterprise “hold no 

more than that the government may not close government 

proceedings which historically have been open” except where 

“public access contributes nothing of significant value to that 

process or [where] there is a compelling state interest in 

closure and a carefully tailored resolution of the conflict 

between that interest and First Amendment concerns.” Id. at 

1173. In effect, we held that the three cases do no more than 

set forth the generalized “experience and logic” test for 

evaluating the right of access to traditionally open 

government proceedings. Id. at 1174-76.

Moreover, in evaluating the existence of the right to 

access D.E.R. files, we were cognizant of the fact that the 

Supreme Court had not yet applied the “experience and logic”

test “to the context of executive branch files.” Id. at 1174. 

Nevertheless, we assumed, without deciding, that the test 

applied to such information and proceeded with our 

evaluation. Id. at 1174-75; see also id. at 1177-78 (Adams, J.,

concurring). Capital Cities therefore stands as the broadest 

suggested application of the “experience and logic” test, 

arguing that it can be applied beyond the limited context of 

criminal and civil trials to cover a greater expanse of 

information related to government bodies, their processes,

and decisions.15

 

15 We recognize the very real concerns our colleagues 

raised in their dissent from Capital Cities:
28

Our willingness to apply the “experience and logic”

test beyond judicial proceedings was once again evidenced in

Whiteland Woods, L.P. v. Township of West Whiteland, 193 

F.3d 177 (3d Cir. 1999). In that case, we considered whether 

a private enterprise, rather than a newspaper, had a First 

Amendment right to videotape “a meeting of the Township 

Planning Commission.” Id. at 178. In dicta, and relying on 

Globe, we reasoned that “[b]ecause a „major purpose of the 

First Amendment was to protect the free discussion of 

governmental affairs,‟ the public and press have the right to 

attend certain types of governmental proceedings.” Id. at 180

(citation omitted) (quoting Globe, 457 U.S. at 604). 

Consequently, we felt “no hesitation in holding Whiteland 

Woods had a constitutional right of access to the Planning 

Commission,” explaining that “[w]hether the public has a 

First Amendment right of access to a particular government 

 

The question . . . is whether government may, 

consistent with the speech-press clause, without 

offering any justification whatever for doing so, 

impose the ultimate prior restraint of imposed 

ignorance about its affairs simply by refusing 

access to information in the possession of 

public officials. The majority holds that it may. 

The governing case law quite plainly is 

otherwise.

Capital Cities, 797 F.2d at 1186-87 (Gibbons, J., et al., 

dissenting). Here, we expressly do not reach the issue of 

whether — even in light of Capital Cities — the “experience 

and logic” test is appropriately applied to cases addressing 

access to legislative or executive records. That case is for 

another day.
29

proceeding depends on” the outcome of the experience and 

logic test. Id. at 180-81 (citing Capital Cities, 797 F.2d at 

1174); see also North Jersey, 308 F.3d at 214 (noting that the 

right of access discussion in Whiteland is dicta).

All of the decisions discussed above informed our 

analysis in North Jersey Media Group, Inc. v. Ashcroft, a case 

in which we focused on the media‟s right of access to 

deportation proceedings. 308 F.3d 199. In defending its 

restriction, the government argued that “the absence of an 

explicit guarantee of access for Article I and II 

proceedings . . . gives rise to a distinction with a difference 

because, without an incorporating provision parallel to the 

Sixth Amendment, the Framers must have intended to deny 

the public access to political proceedings.” North Jersey, 308 

F.3d at 207. “Our own jurisprudence preclude[d] this” result, 

id. at 207, and we held that “experience and logic” “is a test 

broadly applicable to issues of access to government 

proceedings, including removal,” id. at 208-09 (emphasis 

added).16

 

16 As it relates to our ruling in North Jersey, it bears 

repeating that the existence or non-existence of a Sixth 

Amendment-like provision relating to a particular 

government proceeding is not necessary for the satisfaction of 

the “experience and logic” test. Thus, in North Jersey, we 

noted that “[t]here is no suggestion [in Richmond

Newspapers] that the Sixth Amendment is crucial to the right 

of access; indeed, this passage merely states that the Framers 

assumed a common and established practice.” North Jersey, 

308 F.3d at 208.
30

E. The Experience and Logic Test is Applicable to 

Polling Places

Considering the full sweep of our jurisprudence, we 

now hold that the experience and logic test articulated in 

Richmond Newspapers is applicable to the voting process. 

Indeed, an extension of the “experience and logic” test to the 

polling place is in line with the general trend of our decisional 

authority: that access to government proceedings — in effect, 

access to information about governmental bodies and their 

actions or decisions — must be evaluated with an eye toward 

the historical and structural role of the proceeding. North 

Jersey and Whiteland are particularly instructive in this 

regard.

In North Jersey, we held that the “experience and 

logic” test applies to government proceedings under Articles I 

and II of the Constitution. Such proceedings include, among 

other things, the process of voting. While it does not set forth 

the exact nature of the proceeding, Article I of the 

Constitution states that “[t]he Times, Places and Manner of 

holding Elections for Senators and Representatives, shall be 

prescribed in each State by the Legislature thereof; but the 

Congress may at any time by Law make or alter such 

Regulations, except as to the Places of chusing Senators.” U.S. 

Const. art. I, § 4, cl. 1. Moreover, Article II declares that 

“[e]ach State shall appoint, in such Manner as the Legislature 

thereof may direct, a Number of Electors, equal to the whole 

Number of Senators and Representatives to which the State 

may be entitled in the Congress.” U.S. Const. art. II, § 1, cl. 

2. This latter constitutional mandate grants “plenary power to 

the state legislatures in the matter of the appointment of 

electors,” McPherson v. Blacker, 146 U.S. 1, 35 (1892), 
31

thereby ensuring that the voting process is, in no uncertain 

terms, a governmental process and procedure.

17

These mandates to the states are likewise insufficient 

to escape the searching eye of the “experience and logic” test, 

for, in Whiteland, we applied the test to state-level 

proceedings (albeit in dicta). See also First Amendment 

Coalition, 784 F.2d at 472 (applying the test to a state judicial 

discipline board).

Moreover, we believe that this reading of our prior 

decisions fully satisfies — and, in fact, exemplifies — the 

balancing inquiry first articulated by Justice Powell in his 

concurrence in Branzburg. There is an internal logic to this 

test: Where both historical and structural considerations 

militate against a presumption of openness, the press and 

public enjoy no constitutionally protected right of access. In 

such cases, the words of Justice Stewart ring true: The press 

and public “must rely, as so often in our system we must, on 

the tug and pull of the political forces in American society.” 

Capital Cities, 797 F.2d at 1173 (quoting Potter Stewart, Or 

of the Press, 26 Hastings L.J. 631, 636 (1975)).

On the other hand, where history and structure point to 

a presumption of openness, a qualified First Amendment right 

attaches, and the government‟s attempts to cut off access to 

information is subjected to exacting constitutional scrutiny. 

 

17 What is more: The process occurring within a 

polling place, as within a courtroom or a legislative meeting, 

is created, circumscribed, directed, and controlled by the 

government. See U.S. Const. art. I, § 4, cl. 1.
32

See, e.g., Globe, 457 U.S. at 606-07; North Jersey, 308 F.3d 

at 217 n.13.

Thus, by engaging in the “experience and logic”

inquiry, we preserve the interests of the government to keep 

private that which always has been and should be private,

while recognizing the right of the press and the general public

to enter and access traditionally open nonpublic fora and 

other sources of information about government bodies and 

their actions or decisions. Where a tradition of openness is 

found, the test ensures that the government cannot cut off 

access without subjecting itself to exacting constitutional 

scrutiny. By applying the experience and logic test, we 

ensure that the government cannot shroud its activities behind 

a veil of secrecy merely by banning everyone from a 

nonpublic forum. To hold otherwise would be to invite 

inequitable results, and create the possibility of government 

behavior that frustrates the “„paramount public interest in a

free flow of information to the people concerning public 

officials.‟” Pell, 417 U.S. at 832 (quoting Garrison v. 

Louisiana, 379 U.S. 64, 77 (1964)).

F. Applying the Experience and Logic Test to the 

Instant Case

Having determined that the “experience and logic” test 

applies to the voting process, we must now determine 

whether polling places are presumptively open and whether, 

as a result, the Appellant — as well as the general public — is 

presumptively entitled to a right of access pursuant to the 

First Amendment.

1. The “Experience” Prong
33

The framework articulated in Richmond Newspapers

asks us to consider whether a “„place and process have 

historically been open to the press and general public.‟” 

North Jersey, 308 F.3d at 209 (quoting Press-Enterprise, 478 

U.S. at 8). This analysis begins with a review of historical 

practices associated with a particular place or process; this 

inquiry is objective. See Capital Cities, 797 F.2d at 1175. 

Thus, for example, in Capital Cities we held that “the 

relevant historic[al] practice in this case is not specifically 

that of Pennsylvania‟s [D.E.R.]” Id. Instead, after 

considering Richmond Newspapers, Globe and PressEnterprise, we held that “[i]n each of these cases, the Court 

looked not to the practice of the specific public institution 

involved, but rather to whether the particular type of 

government proceeding had historically been open in our free 

society.” Id. (emphasis added).

To meet this objective standard, the Supreme Court 

and the Third Circuit have drawn on a plethora of historical 

sources, including comments made by the Framers, practice 

at the English court of law, congressional procedures, 

relevant regulatory schemes, and court decisions. See, e.g., 

Richmond Newspapers, 448 U.S. at 564-73; Publicker, 733 

F.2d at 1068-70; North Jersey, 308 F.3d at 211-15. This 

wide-ranging inquiry into historical practice is not incidental; 

the “experience” prong sets a relatively high bar, a point we 

recognized in North Jersey, when we compared the tradition

of open deportation proceedings to the traditions of openness 

discussed in Richmond Newspapers (for criminal trials) and 

Publicker (for civil trials), and held that “deportation hearings 

[do not] boast a tradition of openness sufficient to satisfy 

Richmond Newspapers.” North Jersey, 308 F.3d at 212-13; 

cf. Richmond Newspapers, 448 U.S. at 573 n.9 (failing to find 
34

“„a single instance of a criminal trial conducted in camera in 

any federal, state, or municipal court during the history of this 

country‟” (quoting In re Oliver, 333 U.S. 257, 266 (1948)); 

Publicker, 733 F.2d at 1059 (noting that a common law right 

to access civil trials was “beyond dispute”). 

In contrast to the criminal and civil trial settings, we 

noted that the “tradition of open deportation hearings is too 

recent and inconsistent to support a First Amendment right of 

access.” North Jersey, 308 F.3d at 211. And while we 

acknowledged that “a showing of openness at common law is 

not required” and that “a 1000-year history is unnecessary,”

we were quick to note our inability to dispense with the 

“experience” analysis “where history is ambiguous or 

lacking, [or] to recognize a First Amendment right based 

solely on the „logic‟ inquiry.” Id. at 213.18

 

18 During our discussion in North Jersey, we 

acknowledged that one of our cases — United States v. 

Simone, 14 F.3d 833 (3d Cir. 1994) — applied the 

“experience and logic” test without the benefit of a wellestablished tradition of historical openness. 308 F.3d at 213-

14. The Simone case centered on a claimed right of access to 

post-trial examinations of jury misconduct. 14 F.3d 833. In 

analyzing the “experience” prong of the Richmond 

Newspapers framework, we noted that “[n]either the parties 

nor this court have been able to find cases dating before 1980 

in support of either openness or closure for this type of posttrial proceeding.” Simone, 14 F.3d at 838. While we 

explicitly stated in Simone that our analysis would “rely 

primarily on the „logic‟ prong of the test,” we acknowledged 

that the experience prong was fulfilled by looking to “other 

phases of the criminal process.” Id.; see also North Jersey, 
35

In the case before us, Appellant seeks access to the 

polling place.19 We therefore look to see whether a tradition 

of openness exists for the polling place and the process of 

voting occurring inside.

20

 Our inquiry includes not just the 

 

308 F.3d at 214 (acknowledging the peculiar nature of 

Simone).

19 We reject the argument, proffered by Appellant‟s 

counsel, that a right of access to polling places exists because 

information about voters is publicly available. The access 

Appellant seeks is not to this information; it is to the actual 

process occurring within the polling place prior to casting a 

vote. This crucial distinction also ensures that our decision 

does not pertain to activities such as exit-polling.

20 Ordinarily, our case law dictates that the complaint 

must allege this tradition of openness. See Capital Cities, 797 

F.2d at 1175. In the current matter, we recognize that 

Appellant has not directly engaged with the “experience and 

logic” standard and therefore the complaint is relatively 

devoid of any such allegations. (As our earlier discussion 

explains, allegations as to the practices surrounding the 

specific government agency, process or law at issue are not 

pertinent.) However, we believe it is unnecessary to remand 

the case back to the District Court to give Appellant an 

opportunity to amend its pleadings. As the forthcoming 

analysis will demonstrate, the Supreme Court‟s review of 

elections in America presents a well-rounded picture of how 

restrictions around polling places developed. We therefore 

think it would be futile for Appellant to try to amend its 

pleadings.
36

act of voting, but also the act of entering the polling place and 

signing in to vote.

In light of our reasoning that the “experience” inquiry 

is objective, we begin our analysis with the general voting

process. At this level of generality, the Supreme Court‟s 

plurality opinion in Burson is highly instructive. The facts 

and legal conclusions of the decision are immaterial for our 

present purposes; we are instead interested in the plurality‟s 

thorough exegesis on the history of voting in America. See 

Burson, 504 U.S. at 200-06. While a full recapitulation is

unnecessary, it behooves us to engage in a brief discussion.

In the colonial era, voting was conducted by voice vote 

— a process freely accessible to the entire public. Id. at 200 

(“That voting scheme was not a private affair, but an open, 

public decision, witnessed by all and improperly influenced 

by some.”). As time went on, and the perils of public voicebased voting became apparent, the newly-formed states 

adopted systems based on the paper ballot. Id. Voters would 

craft their own ballots at home and then bring them to the 

polls. Id. However, the trip between the home and the poll 

was not a private or protected affair, and the old evils of 

voice-based voting resurfaced in the form of pre-printed 

ballots, bribery, and intimidation. Id. at 200-01 (“State 

attempts to standardize the ballots were easily thwarted — the 

vote buyer could simply place a ballot in the hands of the 

bribed voter and watch until he placed it in the polling box.”). 

Under the original ballot-based system, “[a]pproaching the 

polling place . . . was akin to entering an open auction place. 

As the elector started his journey to the polls, he was met by 

various party ticket peddlers „who were only too anxious to 

supply him with their party tickets.‟” Id. at 202 (quoting 
37

Eldon Cobb Evans, A History of the Australian Ballot System 

in the United States 9 (1917)).

In the late 1800s, states began adopting “the Australian 

system” of voting. Id. at 203. The new system not only 

placed all of the candidates on a single ballot, but it also 

“provided for the erection of polling booths . . . open only to 

election officials, two „scrutinees‟ for each candidate, and 

electors about to vote.” Id. at 202. The state laws differed

mainly in the size of the exclusionary zone that they created 

around the polls. Id. (“The Massachusetts and New York 

laws differed somewhat from the previous Acts in that they 

excluded the general public only from the area encompassed 

within a guardrail constructed six feet from the voting 

compartments.”).21 “By 1896, almost 90 percent of the States 

had adopted the Australian system. This accounted for 92 

percent of the national electorate.” Id. at 204-05. 

In his concurrence, Justice Scalia added that “[b]y 

1900, at least 34 of the 45 States . . . had enacted such 

restrictions,” and that “most of the statutes banning electionday speech near the polling place specified the same 

distance”: 100 feet. Id. at 214-15 & n.1 (Scalia, J.,

concurring) (collecting statutes).

 

21 The court noted that “[t]his modification was 

considered an improvement because it provided additional 

monitoring by members of the general public and 

independent candidates, who in most States were not allowed 

to be represented by separate inspectors.” Burson, 504 U.S. 

at 203-04. 
38

Now, returning our focus to Pennsylvania, we note that 

the Pennsylvania Constitution mandates that “[a]ll elections 

by the citizens shall be by ballot or by such other method as 

may be prescribed by law: Provided, That secrecy in voting 

be preserved.” Pa. Const. art. 7, § 4 (emphasis added). 

Moreover, the provisions in § 3060 limiting access to the 

polling place were adopted 75 years ago. See Act of June 3, 

1937, P.L. 1333, No. 320, Art. XVIII, § 1220. While we do 

not look specifically at whether a tradition of openness exists 

in Pennsylvania, we do find it relevant that Pennsylvania laws 

and provisions are in line with the historical development

discussed by the Supreme Court above.

In light of the foregoing discussion — and our earlier 

directive that the tradition of openness must be objectively 

and clearly established — we find that the historical record is 

insufficient to establish a presumption of openness in the 

context of the voting process itself. While the act of voting 

— and the process by which voting was carried out — began 

its life as a public affair, our Nation‟s history demonstrates a 

decided and long-standing trend away from openness, toward 

a closed electoral process.

2. The “Logic” Prong

The Richmond Newspapers framework also tasks us 

with considering “whether public access plays a significant 

positive role in the functioning of the particular process in 

question.” North Jersey, 308 F.3d at 209 (quoting PressEnterprise, 478 U.S. at 8). We have adopted six broad 

“values” that are typically served by openness:

[1] promotion of informed discussion of 

governmental affairs by providing the public 
39

with the more complete understanding of the 

[proceeding]; [2] promotion of the public 

perception of fairness which can be achieved 

only by permitting full public view of the 

proceedings; [3] providing a significant 

community therapeutic value as an outlet for 

community concern, hostility and emotion; [4] 

serving as a check on corrupt practices by 

exposing the [proceeding] to public scrutiny; [5] 

enhancement of the performance of all 

involved; and [6] discouragement of [fraud].

United States v. Simone, 14 F.3d 833, 839 (3d Cir. 1994). Of 

course, these are general categories and the list is by no 

means exhaustive or mandatory. For the logic prong to be 

satisfied, it need not be shown that the government process or 

the general public will benefit in all six ways from press and 

public access.

In addition to considering the benefits that would 

result from press and public access, we must “take account of 

the flip side — the extent to which openness impairs the 

public good.” North Jersey, 308 F.3d at 217. Indeed, the 

logic analysis must account for the negative effects of 

openness, for otherwise “it is difficult to conceive of a 

government proceeding to which the public would not have a 

First Amendment right of access.” Id. (“[P]ublic access to 

any government affair, even internal CIA deliberations, 

would „promote informed discussion‟ among the citizenry. It 

is unlikely the Supreme Court intended this result.”). And 

while the consideration of potentially detrimental effects is 

speculative, we have held that “the Richmond Newspapers

logic prong is unavoidably speculative.” Id. at 219.
40

Finally, we note that a necessary corollary to the 

“experience” prong being an objective inquiry is that the 

“logic” prong is likewise an objective inquiry. To hold 

otherwise would lead to untenable consequences: First 

Amendment rights of access would not only vary from venue 

to venue, but they would be subject to a kind of arbitrary 

examination that is anathema to our system of defined 

constitutional rights.

In the case before us, we begin by noting the rather 

obvious fact that openness of the voting process helps prevent 

election fraud, voter intimidation, and various other kinds of 

electoral evils. “[S]unlight,” as has so often been observed, 

“is the most powerful of all disinfectants.” N.Y. Times Co. v. 

Sullivan, 376 U.S. 254, 305 (1964). Of course, in situations 

where the press is not geographically far removed from the 

proceedings anyway, the benefits of additional oversight are 

inversely proportional to the distance of the press. The 

situation in Pennsylvania is a fine example: The press (like 

the general public) is only 10 feet away from the polling 

place, and we have no tangible or discernible evidence of how 

the public good would benefit so much more from the press 

being inside the room, rather than several paces away.

22

 

22 At oral argument it became apparent that the press 

could simply stand at the 10-foot mark, point their cameras 

inside the polling place — which we note again is just the 

room designated for voting — and begin to record the 

activity. Counsel for Appellee conceded that this would be 

permissible, and counsel for Appellant had no satisfactory 

response as to how or why this procedure would not serve the 

Appellant‟s interest.
41

Appellant argues that access to the polling place was

particularly necessary during this past election because of the 

Voter ID Law. More specifically, Appellant argues that the 

Voter ID Law — part of which was suspended for purposes 

of the November 6, 2012 election — may have caused voter 

confusion as to whether identification is required in order to 

cast a vote. As a result, Appellant argues that it was of the 

utmost importance for reporters to observe and record the 

goings on at the sign-in table during this election. We agree 

that openness in a situation where new legislation is being 

implemented or tested would generally serve the public good. 

It implicates several of the broad categories recognized in 

Simone, including the “promotion of informed discussion of 

governmental affairs by providing the public with [a] more 

complete understanding of the [proceeding].” Simone, 14

F.3d at 839. We therefore consider this as a factor weighing 

in favor of satisfying the “logic” prong.23

The experience and logic test requires that we also 

examine the potential dangers inherent in openness. Of 

greatest concern to us is that access for one is access for all. 

While Appellant urges that its reporters should be permitted 

to access the polling place for purposes of gathering news, 

there is no constitutionally valid way of limiting the right of 

access only to Appellant. Finding a right of access for one 

 

23 The weight we accord to this fact in our inquiry 

under the logic prong would be different if the Voter ID Law 

actually had been implemented; indeed, our entire analysis of 

the “experience and logic” test could be different. However, 

that case is not before us, and we decline to speculate 

regarding its effect. As both parties concede, November 6, 

2012 represented only a “soft test” of its implementation. 
42

member of the press necessarily means that all other members 

of the press must or should share in that right.

This brings us to the next concern, raised at oral 

argument: Who is a member of the press? Even if we were 

inclined to find a special First Amendment right for the press 

in this case (which we explicitly refuse to do), the class of 

persons to whom such a right is applicable is almost 

boundless. Counsel for Appellant could not divine a way to 

confine the potential beneficiaries of a ruling in its favor.24 

Moreover, there is a very real possibility that the 

presence of reporters during the sign-in period, when 

individuals are necessarily exchanging personal information

in preparation for casting a private vote, could concern, 

intimidate or even turn away potential voters.

 

24 More recently, membership in the Fourth Estate has 

been democratized. Access to blogs, smartphones, and an 

extensive network of social media sites (not the least of which 

are Twitter and Facebook) have transformed all of us into 

potential members of the media. While in almost any other 

situation this would be a boon to a free and democratic 

society, in the context of the voting process, the confusion 

and chaos that would result from a potentially limitless 

number of reporters in a polling place would work the 

opposite effect, potentially creating confusion, frustration, 

and delay. This is to say nothing of our earlier holding that 

the rights of access for the press and public are co-extensive. 

In this situation, anyone could record in the polling place if 

the First Amendment protected the right of access thereto.
43

On balance then, we find the “logic” prong of this 

inquiry disfavors finding a constitutionally protected right of 

access to the voting process. We therefore find that both 

prongs of the “experience and logic” test militate against 

finding a right of access in this case. As in North Jersey, we 

note that while the Constitution does not provide protection 

under the First Amendment, “there is, as always, the powerful 

check of political accountability.” North Jersey, 308 F.3d at 

220.

G. Beacon Journal is Unpersuasive

Despite clear indications by the Supreme Court and 

this Circuit that the experience and logic test is the 

appropriate analytical framework for the instant dispute, 

Appellant urges us to follow the Sixth Circuit‟s conclusion in 

Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 

683 (6th Cir. 2004), a decision whose reasoning is ambiguous 

at best. We decline to do so.

The Beacon Journal court analyzed the 

constitutionality of an Ohio statute similar to Pennsylvania‟s 

§ 3060(d) as applied to members of the media. Like § 

3060(d), the Ohio law mandated that “[n]o person, not an 

election official, employee, witness, challenger, or police 

officer, shall be allowed to enter the polling place during the 

election, except for the purpose of voting.” Id. at 684 

(quoting Ohio Rev. Code Ann. § 3501.35 (2002)). The 

Beacon Journal Publishing Company (which published the 

Beacon Journal newspaper) moved for injunctive relief, 

arguing that the law “abridg[ed its] First Amendment rights.” 

Id. The Sixth Circuit, without fully setting out the basis for 

its decision, applied strict scrutiny and held that the 

government had made no showing that the law was 
44

“necessary to further the state‟s [interest in ensuring orderly 

elections] and „narrowly drawn to achieve that end.‟” Id. at 

685 (quoting Perry, 460 U.S. at 45). It therefore concluded 

that the Ohio law likely abridged the freedom of the press, 

and ordered that the injunction be granted and that the state 

“immediately and forthwith permit [Beacon Journal] to have 

reasonable access to any polling place for the purpose of 

news-gathering and reporting so long as [Beacon Journal

does] not interfere with poll workers and voters as voters 

exercise their right to vote.” Id.

Beacon Journal‟s citation to Perry for the strict 

scrutiny standard is telling (and troubling). The Perry case, 

which concerned a law regulating expressive activity in a 

public school, formulated its analysis this way: “The 

existence of a right of access to public property and the 

standard by which limitations upon such a right must be 

evaluated differ depending on the character of the property at 

issue.” Perry, 460 U.S. at 44 (emphasis added). As we have 

explained above, the “right of access” at issue in Perry

concerned access to a forum for speech purposes. The right 

at issue in this case (and in Beacon Journal) is different — it 

concerns the right of access to a government proceeding for 

news-gathering purposes.

Moreover, in applying a forum analysis, the Sixth 

Circuit apparently took the polling place to be a public forum. 

This is incorrect and stands adverse to both Supreme Court 

precedent and our precedent. As we have just held: a polling 

place is a nonpublic forum, requiring the government to 

satisfy only a reasonableness analysis. Therein lies our 

discord with the Beacon Journal ruling. As our foregoing 

discussion demonstrates, adopting a traditional forum analysis 

for cases such as the one at bar sets a dangerous precedent 
45

which permits the government too much freedom to hide their 

activities from the public‟s view. We cannot accept this 

result. Beacon Journal is a precedent we cannot follow.25

As there is no protected First Amendment right of 

access to a polling place for news-gathering purposes, we find 

that Appellant has failed to state a claim and affirm the 

District Court‟s dismissal of Count I.

IV. Equal Protection

Appellant also alleges that the Commonwealth‟s 

application of § 3060(d), forbidding it from entering polling 

places in Allegheny and Beaver Counties, violates the Equal 

Protection Clause. Appellant asserts that the Boards of 

Elections in Pennsylvania counties other than Allegheny and 

Beaver counties permit reporters to enter the polling place 

and take photographs or otherwise record the proceedings. 

Appellant supports its claim by pointing to a host of 

photographs taken by other Pennsylvania newspapers inside 

polling places. Additionally, Appellant claims that officials 

in Allegheny County have on previous occasions permitted 

the media (presumably including Appellant‟s own reporters) 

 

25 We note also that in rejecting Beacon Journal we are 

not disagreeing with any of our other sister circuits. The 

Beacon Journal decision seems to stand alone, even within 

the Sixth Circuit. Indeed, in the eight years since the decision 

(a span of time which covered four national elections), only 

one court in the entire country has cited Beacon Journal for 

its holding regarding the right of access: the District Court

opinion in this case. PG Publ’g Co., 2012 WL 4796017, at 

*25.
46

entry into the polling place to photograph “certain public 

figures” during the voting process. On the basis of these 

allegations, Appellant urges that it was and is being 

discriminated against in violation of the Equal Protection 

Clause.

Appellee does not dispute that § 3060(d) is selectively 

enforced across the Commonwealth. Indeed, Appellee 

conceded as much during oral argument. Instead, Appellee 

argues that the alleged selective enforcement of § 3060(d) 

cannot sustain an equal protection claim and that any 

disparate enforcement comes from the structure of the 

Commonwealth‟s electoral process. That is, Appellee asserts 

that each Board of Elections operates in complete autonomy, 

and therefore, the decisions of one cannot be compared to the 

decisions of the others.

26

For the reasons discussed below, we agree with 

Appellee that the selective enforcement of § 3060(d) does not 

give rise to a claim under the Equal Protection Clause. 

Consequently, we hold that the District Court rightfully 

dismissed Appellant‟s claim.

 

26 By contrast, Appellant alleges that the “the 

Commonwealth, through its political subdivisions,” violated 

the Equal Protection Clause. As a necessary consequence, 

Appellant argues that every instance of enforcement or nonenforcement of § 3060(d) can be attributed directly to the 

Commonwealth as a whole and, by extension, the Secretary 

for the Commonwealth of Pennsylvania (Appellee). We need 

not reach this argument for Appellant‟s claim is properly 

disposed of on other grounds.
47

A. The “Class of One” Argument

The Fourteenth Amendment dictates that a state may 

not “deny to any person within its jurisdiction the equal 

protection of the laws.” U.S. Const. amend. XIV. The 

purpose of this clause is “to secure every person within the 

State‟s jurisdiction against intentional and arbitrary 

discrimination, whether occasioned by express terms of a 

statute or by its improper execution through duly constituted 

agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 

(2000) (quoting Sioux City Bridge Co. v. Dakota Cnty., 260 

U.S. 441, 445 (1923)). Where a litigant asserts a so-called 

“class of one” Equal Protection challenge, alleging that the 

litigant itself, and not a particular group, was the subject of 

discriminatory treatment under a particular law, we have 

required the litigant to allege “that she has been intentionally 

treated differently from others similarly situated and that 

there is no rational basis for the difference in treatment.” 

Marcavage v. Nat’l Park Serv., 666 F.3d 856, 860 (3d Cir. 

2012) (quoting Vill. of Willowbrook, 528 U.S. at 564).

The allegations presented in Appellant‟s Complaint do 

not demonstrate that Appellant was “intentionally treated 

differently” from other newspapers in Pennsylvania. In fact, 

the Complaint fails to present a single example where another 

newspaper sought and obtained access to a polling place in a 

location where Appellant could not. As the District Court 

recognized, “[t]he facts alleged by [Appellant] suggest only 

that employees of the Post-Gazette unsuccessfully sought to 

enter polling places located in counties where § 3060(d) is 

enforced, and that employees of other newspapers were 

allowed to enter polling places in counties where § 3060(d) is 

not enforced.” PG Publ’g Co., 2012 WL 4796017, at *29. 

Still, we must delve deeper, for Appellant urges us that it has 
48

alleged a scheme of selective enforcement sufficient to 

implicate the Equal Protection Clause.

B. The “Selective Enforcement” Argument

The Equal Protection Clause prohibits the “selective 

enforcement” of a law based on an unjustifiable standard. 

Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir. 

2006); see also United States v. Batchelder, 442 U.S. 114, 

125 n.9 (1979). Thus, to establish a selective-enforcement 

claim, Appellant must demonstrate: “(1) that [it] was treated 

differently from other similarly situated [entities], and (2) 

„that this selective treatment was based on an unjustifiable 

standard, such as race, or religion, or some other arbitrary 

factor, . . . or to prevent the exercise of a fundamental right.‟” 

Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir. 

2010) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d 

Cir. 2005)). To maintain its equal protection claim, Appellant 

must show not only that the administration of § 3060(d) has 

resulted in “unequal application to those who are entitled to 

be treated alike,” but also that there is “an element of 

intentional or purposeful discrimination” present. Snowden v. 

Hughes, 321 U.S. 1, 8 (1944); see also Jewish Home of E. Pa. 

v. Ctrs. for Medicare and Medicaid Servs., 693 F.3d 359, 363 

(3d Cir. 2012) (“[T]o maintain an equal protection claim of 

this sort, [plaintiff] must provide evidence of discriminatory 

purpose, not mere unequal treatment or adverse effect.”).

Here, we find that Appellant has failed to set forth the 

necessary allegations. Even if we accept all of Appellant‟s 

allegations at face value, as we must, we see no sign of “clear 

and intentional discrimination.” Snowden, 321 U.S. at 8 

(internal quotation marks omitted). The Complaint 

demonstrates only that in some instances, reporters from 
49

newspapers in some counties were permitted into the polling 

place, while reporters in other counties were not. This is 

insufficient to allege a systemic discriminatory purpose. 

Accord Jewish Home, 693 F.3d at 363 (finding no “[s]elective 

discriminatory enforcement” where facts demonstrated only 

that some facilities were penalized less often than plaintiff). 

The law cannot provide a constitutional remedy for every 

situation where a party may feel slighted; claims appealing to 

the Equal Protection Clause must meet a higher bar.
50

C. The “Inconsistent Application” Argument

Finally, we address Appellant‟s allegation that, in the

past, reporters were permitted to enter polling places and 

photograph elected officials casting their votes. It is wellestablished that “the conscious exercise of some selectivity in 

enforcement [of a law] is not in itself a federal constitutional 

violation.” Oyler v. Boles, 368 U.S. 448, 456 (1962); see also 

Gov’t of Virgin Islands v. Harrigan, 791 F.2d 34, 35 (3d Cir. 

1986) (“A prosecutor is not bound to use the habitual criminal 

statute in every case to which it could be applied.”).

Here, the issue lies not in the inconsistent application 

of the statute to Appellants, but in the absence of any 

allegations suggesting some invidious intent. Appellant has 

not set forth sufficient factual allegations to allow this Court 

to draw the reasonable inference that the disparate treatment 

of Appellant‟s own reporters was occasioned by some 

specific agenda aimed at discriminating against Appellant‟s 

personnel in particular.27 To hold, without more, that the onagain/off-again enforcement of § 3060(d) amounts to an 

Equal Protection Clause violation would unduly — and 

imprudently — expand the reach of the Clause. We decline 

to do so, and instead affirm the District Court.

 

27 For example, Appellant presents no allegations that 

its reporters were barred from the polling place for printing 

news items or editorials that were critical of the government. 

See Capital Cities, 797 F.2d at 1176.
51

V. The Consent Decree

We now come to the Consent Order. Appellant argues 

that the District Court erred in refusing to enter the Order. 

Appellant argues that the parties in a litigation may agree to 

any relief that is “within the general scope of the case made 

by the pleadings.” Pac. R.R. v. Ketchum, 101 U.S. 289, 297 

(1879). Given that this court is not “necessarily barred from 

entering a consent decree . . . [that] provides broader relief 

than the court could have awarded after a trial,” Local No. 93, 

Int’l Ass’n of Firefighters, AFL-CIO v. City of Cleveland, 478 

U.S. 501, 525 (1986), Appellant urges that the parties to the 

Consent Order should “obtain the injunctive benefits of the 

settlement agreement they negotiated,” Carson v. Am. 

Brands, Inc., 450 U.S. 79, 89 (1981). In light of our

discussion regarding the constitutionality of § 3060(d), we 

hold that the court below did not abuse its discretion in 

refusing to enter the consent decree.

Consent decrees — such as the Consent Order — have

“elements of both contracts and judicial decrees.” Frew v. 

Hawkins, 540 U.S. 431, 437 (2004). Thus, a consent decree 

represents “„an agreement that the parties desire and expect 

will be reflected in, and be enforceable as, a judicial decree 

that is subject to the rules generally applicable to other 

judgments and decrees.‟” Id. (quoting Rufo v. Inmates of 

Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992)). Consequently, 

the parties cannot circumvent valid state laws by way of a 

consent decree. See, e.g., Perkins v. City of Chicago Heights, 

47 F.3d 212, 216 (7th Cir. 1995) (“While parties can settle 

their litigation with consent decrees, they cannot agree to 

„disregard valid state laws . . . .”); St. Charles Tower, Inc. v. 

Kurtz, 643 F.3d 264, 270 (8th Cir. 2011) (holding that a state 

court can approve a consent order “overrid[ing] state law” 
52

only where there exists a “federal constitutional or statutory

violation”).28

As our foregoing analysis of Appellant‟s First 

Amendment and Equal Protection Clause claims

demonstrates, § 3060(d) does not give rise to a violation of 

federal statutory or constitutional law and is therefore a valid 

state statute. Thus, the District Court did not err in refusing 

to enter a consent decree that would violate a valid state 

law.29

 

28 See also Soc’y Hill Civic Ass’n v. Harris, 632 F.2d 

1045, 1060 (3d Cir. 1980) (“A consent decree need not in 

explicit terms require that the actions specified therein shall 

be carried out in conformity with all applicable federal, state 

and local law. It is sufficient if it does not authorize or 

require conduct in violation of the law.”), overruled on other 

grounds by Martin v. Wilks, 490 U.S. 755, 762 n.3 (1989).

29 Appellant argues that the District Court improperly 

held that the Board of Elections‟ authority did not allow it to 

enter into a consent decree that contravened valid state law. 

Instead, Appellant avers that the Board‟s “broad discretion” 

permits it to “issue rules and regulations for the guidance of 

election officers,” which in turn permits it to enter into this 

particular consent decree. (Appellant‟s Br. at 33-34.) 

Assuming, arguendo, Appellant‟s position, we still find that 

the District Court did not abuse its discretion. Regardless of 

what the Allegheny County Board of Elections‟ authority 

may entail, Appellant does not — and likely cannot —

maintain that it extends to overriding an existing state law. 

Even if the Board may choose not to apply the law, § 3060(d) 

would still remain a valid state statute, and the District Court 
53

VI. Conclusion

For the reasons discussed above, we will affirm the 

District Court‟s decision to grant Appellee‟s motion to 

dismiss and hold it did not abuse its discretion in refusing to 

enter the Consent Order.

 

cannot lend its imprimatur to an order that would sanction its 

contravention. See, e.g., Perkins, 47 F.3d at 216 (holding that 

parties to a consent decree “cannot consent to do something 

together that they lack the power to do individually”); Keith v. 

Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (holding that 

parties to a consent decree cannot “agree to terms which 

would exceed their authority and supplant state law”).