[73] GIBBONS, Circuit Judge, dissenting, with whom HIGGINBOTHAM, SLOVITER and MANSMANN, Circuit Judges, join:

Exercising plenary review of the grant of a motion to dismiss an amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the majority holds that: (1) the trial court properly determined that pendent state law claims for access to governmental information may not be considered by a federal court; (2) the court erred in dismissing claims based upon the equal protection clause of the fourteenth amendment; and (3) the court properly dismissed claims for access to information based upon the first amendment. I agree that the eleventh amendment, as reinterpreted in Pennhurst State School Hospital v. Halderman (Pennhurst II), 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), precludes federal courts, in the absence of the state's consent, from entertaining pendent state law claims "against state agencies and officers seeking prospective injunctive relief for a violation of state law." Geis v. Board of Education of Parsippany-Troy Hills, 774 F.2d 575, 580 (3d Cir. 1985). For reasons that I address more fully in Part IV below, I agree that the amended complaint states a claim for violation of the equal protection clause for which relief can be granted. I dissent from the majority's affirmance of the Rule 12(b)(6) dismissal of the claim for access to information based upon the first amendment.

I. [75] The Pleaded Facts

Since the appeal is from the grant of a Federal Rule of Civil Procedure 12(b)(6) motion, our review, as the opinion of the court acknowledges, is plenary. We must decide whether the verified complaint and supporting affidavit set forth a set of facts which, if proved at trial, would entitle Times Leader to the relief it seeks. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Times Leader can be expected to prove that in December of 1983, a major supplier of drinking water for Northeastern Pennsylvania, Pennsylvania Gas and Water Company, discovered that a substantial portion of its water supply was contaminated by giardia cysts. Ingestion of giardia cysts causes an intestinal illness in humans called giardiasis. As a result of the contamination, over four hundred persons became afflicted with the disease. This outbreak led the Pennsylvania Department of Environmental Resources and the Pennsylvania Department of Health to make a public announcement about the contamination, and to place water use restrictions on 250,000 area water customers. The outbreak and the reactions of the two state departments were the subject of local, state, and national news coverage.

Following the giardiasis outbreak, Times Leader commenced an in-depth examination of the disease and its source. Because the Pennsylvania Department of Environmental Resources was the agency responsible for the enforcement of federal and state environmental laws respecting water quality, Times Leader undertook an extensive examination of its job performance and the job performance of its officials. During the course of that inquiry, Times Leader published approximately 400 news articles and opinion pieces. Some of the published materials expressed concern that political influence or other improper considerations affected the conduct of the Department over the years and resulted in the selective enforcement of environmental laws, particularly those regarding sewage discharges in Roaring Brook and Spring Brook Townships. Sewage discharges in those townships were the most likely sources of the giardia cyst contamination in the Pennsylvania Gas and Water Company watershed.

During the course of Times Leader's investigation, it sought access to documents and records respecting the activities of the Department of Environmental Resources in the contaminated communities. Access to some documents at the Department's Northeast Regional Office was granted; however, some documents were withheld. The Department explained,

Department policy statewide allows for review of all files at Regional offices and in Harrisburg with the following exceptions:

1. Interoffice memorandum.

2. Documents relating to attorney-client relationships.

3. Citizen complaints.

The rationale behind these exceptions is self-explanatory.

Letter from Mark R. Carmon, Community Relations Coordinator for the Pennsylvania Department of Environmental Resources to Times Leader (April 18, 1984), reprinted in Joint Appendix, at 33. Times Leader asked the Department for a copy of the statewide policy on withholding documents, but none could be found. An assistant counsel for the Department informed Times Leader that there was no formal Departmental policy, and that each regional office decided on its own what information would be disclosed. Thereafter the Department furnished Times Leader with a copy of its "Public Information General Policy and Guidelines." This document states that "all citizens shall be provided access to Departmental records and documents. . . . If such person desires copies of these documents or records, the Department shall impose a reasonable charge." Joint Appendix at 34-35. The document cross-references to two Pennsylvania statutes. The first defines public records, Pa. Stat.Ann. tit. 65, § 66.1(2) (Purdon Supp. 1985), and the second provides that "[e]very public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." Pa.Stat. Ann. tit. 65, § 66.2 (Purdon 1959). The command in the second statute that the government afford citizens access to public records is qualified, however, by the following proviso to the first:

That the term "public records" shall not mean [1] any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, . . . [or 2] any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or [3 any document] which would operate to the prejudice or impairment of a person's reputation or personal security, or [4 any document] which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for a criminal act.

Pa.Stat.Ann. tit. 65, § 66.1(2).

Neither the quoted proviso nor any other Pennsylvania statute mandates nondisclosure of the four categories of materials excepted from the definition of public record. Even during the course of its investigation, Times Leader was shown inter-office memoranda, inspection reports, prosecution/enforcement action complaints (including those pertaining to criminal prosecutions), citizen complaints, investigation reports on citizen complaints, correspondence, enforcement recommendations, and other papers. Thus, as the Department interprets Pennsylvania law, the fact that a paper is not designated as a public record does not prevent its disclosure, but merely permits its nondisclosure in the unfettered absolute discretion of the agency official to whom a request for disclosure is made.

The Department, in a letter to Times Leader from Mark R. Carmon, its Community Relations Coordinator, explained,

Listed below is a reference list of the materials that were purged from our files on Spring Brook and Roaring Brook Townships. I do not intend to go into detail on this list as it would be doing the actual discovery work. I have attempted to give you a broad picture of what was deleted from your inspection and why.

File on Grella Litigation — Includes interoffice memos Attorney Work Project [sic], ± 15 pieces

Elmbrook Public Service Corp. Files — Includes interoffice memos, and citizen complaints, ± 20 pieces

Roaring Brook Estates File — Includes legal action strategies and interoffice memos, ± 15 pieces

We strongly feel that your access to public files has been considerable and appropriate. The above-mentioned files were not made available to you and your staff under the three exception areas that we have discussed previously.

Letter from Mark Carmon to Times Leader (July 16, 1984), reprinted in Joint Appendix, at 38. The Department later gave Times Leader a more complete oral description of the documents and its reasons for withholding them. The documents date from the late 1960's up to and including 1984. They include: six to twelve reports of citizen complaints and of inspections made as a result thereof, three or four letters sent to or received from the office of the Department's legal counsel relating to litigation strategy, six memos generated by technical personnel discussing enforcement strategies or modes of approach to compliance problems, a large number of memos generated by technical personnel discussing the results of their investigation into the giardiasis problem and an undetermined number of uncategorized documents, the subject matter of which is unknown.

Times Leader alleges and has pleaded facts which, if proved, would lead to findings that there is no generally applicable state policy prohibiting disclosure of the bulk of the requested information, that similar information has regularly been disclosed, and that the Department's disclosure policy has been selectively implemented by Departmental personnel to deny access to individuals or news organizations whom the Department does not favor. Times Leader has, in short, pleaded a claim that information which under Pennsylvania law may be lawfully disclosed is selectively withheld for the purpose of manipulating the public's perception of the Department's performance.

II. [85] The Parties' Legal Contentions and the District Court Decision

The Commonwealth's position with respect to disclosure of materials in the possession of its agencies or political subdivisions is elemental. In its view, no one has any right of access to information in the possession of any branch, department, or political subdivision of a state except such as is conferred by the positive law of that state. No federal law bears upon the question. In Pennsylvania, the only such law is section 66.2 of title 65 of the Pennsylvania Statutes Annotated, see Pa.Stat.Ann. tit. 65, § 66.2, and that law does not cover the four categories of documents listed in the proviso to section 66.1(2) of that title, see Pa.Stat.Ann. tit. 65, § 66.1(2). State officials may, as a matter of grace, selectively withhold or disclose the documents mentioned in the proviso, as was done in this instance. But absent a willingness on their part to disclose, the public has no right of access to them at any time. Moreover, the Commonwealth argues, even if some of the withheld documents do not fall within the proviso in section 66.1(2) and therefore should have been disclosed under section 66.2, the eleventh amendment bars the district court from considering that claim. Thus, the Commonwealth urges, even a state statute mandating disclosure does not establish, for first amendment purposes, a public right of access.

Times Leader, on the other hand, contends as follows: (1) the first amendment guarantees it a right of access to at least some of the withheld information; (2) the Department's arbitrary and capricious policy with respect to disclosure deprives it and other citizens of the equal protection of the laws; and (3) there is pendent jurisdiction over its state law claims.

The district court accepted the Commonwealth's contention on each issue and dismissed the complaint. This appeal followed.

III. [89] The First Amendment and Access to Information A.

Before I address Times Leader's contention that the first amendment guarantees it a right of access to information in possession of the Pennsylvania Department of Environmental Resources, it is appropriate, in light of unfortunate dicta in the opinion of the court, to note certain issues that are not presented by this appeal. First, the Commonwealth does not contend, and the majority does not hold, that Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), has been overruled. The first amendment applies to the Commonwealth. Second, although Times Leader is a member of the Fourth Estate, it does not in this case contend for any right of access to information superior to that of the general public. It contends for the same right of access that, in its view, is guaranteed to all residents of the United States. Third, the appeal presents no issue of reasonable time, place, and manner restrictions upon access to information in the interest of such governmental interests as efficiency or economy. The Commonwealth does not contend that production of the withheld information would excessively burden the Department or divert public funds from their intended use. Indeed, the Department willingly undertook to permit inspection at its office of a large quantity of information in its files. The only significant burden or expense encountered was that of purging the raw files of that information the Department officials decided to withhold. The position of the majority apparently is that the Commonwealth has no burden of justifying any time, place, or manner restriction on access.

Fourth, the case does not involve any legislative determination that certain categories of governmental information must be withheld. The Pennsylvania statute is clear in this respect. It mandates disclosure of all public records, excepting from that mandate the four categories of records listed in section 66.1(2), but it does not prohibit the disclosure of the excepted records. The decision whether to disclose or not is by statute, and in practice so far as this record reveals, left to the discretion of the executive branch official possessing the information. Under the amended complaint Times Leader could prove that some information that is designated by statute as public was nevertheless withheld.

Fifth, the appeal is not before us in the posture in which the executive branch official has attempted to make any factual showing of a legitimate governmental interest that would be protected by nondisclosure. Times Leader, it is true, has pleaded that three or four of the requested documents were generated by or sent to the Department's counsel, and thus there may be a viable claim of attorney-client privilege as to those documents. Even as to those documents, however, the Commonwealth has not made a specific assertion in the record before us of such a privilege. In addition, no factual assertion has been made, much less considered and resolved, that the remaining withheld information would prejudice an ongoing investigation, endanger a witness, disclose the identity of a confidential informant or breach a contract. Thus the case is not before us in a posture in which the Commonwealth asks us to balance the Time-Leader's asserted right of access against identified, competing state or private interests. Nor is it before us in a posture in which we can identify any method of vindicating competing state or private interests by means less intrusive on the asserted right of access than total nondisclosure. We are confronted with the naked proposition that the first amendment guarantees no one any right of access to information possessed by the government under any circumstances. While some dicta in the opinion of the court suggests a willingness to accept that naked proposition, the precise holding in Part II E is narrower. The holding is only that the complaint insufficiently alleges a tradition of public access to the types of records here in issue.

B.

Before accepting either the naked proposition that the first amendment guarantees no one any right of access to information in the possession of the government or the narrower pleading holding of the majority, it is appropriate to consider what purposes animate the relevant portion of that amendment. The first amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." U.S. Const. amend. I.

Over the years, the animating purpose of the speech-press clause has been the subject of much discussion by justices and scholars alike. Justice Brandeis, in Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), related the speech-press clause to individual autonomy, noting that "[t]hose who won our independence believed that the final end of the State was to make men free to develop their faculties. . . ." Id. at 375, 47 S.Ct. at 648 (Brandeis, J., concurring). Professor Emerson expressed the same thought when he wrote that freedom of expression is essential as a means of assuring individual self-realization. T. Emerson, The System of Freedom of Expression 6 (1970). Justice Holmes, echoing Thomas Jefferson, focused on the perhaps more pragmatic purpose of assuring competition in the marketplace of ideas. See Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes J., dissenting). See also Jefferson, First Inaugural Address, in 1 A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 321-24 (J. Richardson ed. 1897). Professor Emerson also endorsed the view that the purpose of freedom of expression is to foster a marketplace of ideas when he wrote, "[F]reedom of expression is an essential process for advancing knowledge and discovering truth. An individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds." Emerson, supra, at 6-7. Alexander Meiklejohn, whose writings upon the speech-press clause have been enormously influential upon members of the Supreme Court, identified the first amendment as a corollary to the fundamental constitutional principle of self-government. Because the electorate exercises the power of self-government, though indirectly, he explained, the electorate must know and be totally free to discuss all matters concerning its government. See A. Meiklejohn, Free Speech and its Relation to Self-Government (1948); Meiklejohn, The First Amendment is an Absolute, 1961 Sup.Ct. Rev. 245; Meiklejohn, What Does The First Amendment Mean, 20 U.Chi.L.Rev. 461, 473 (1951-53).

But the earliest and certainly the most widely-accepted explanation of the animating purpose of the speech-press clause is that enunciated by its author, James Madison; namely, its value in serving as a restraint upon the abuse of power by public officials. Madison articulated that justification for the speech-press clause in the House of Representatives on June 8, 1789. See 1 Annals of Congress 432-42 (J. Gales ed. 1789), reprinted in 5 The Writings of James Madison 370-89 (G. Hunt ed. 1904). He reiterated that justification in a House debate in 1794. See 4 Annals of Congress 934 (1794). In 1799 he reemphasized the importance of the speech-press clause as a means for restraining abuse of power by government officials in his Report on the Virginia Resolutions in opposition to the Alien and Sedition Acts. Contrasting the situation in Great Britain where Parliament was deemed to be the sole guardian against usurpation of power by the executive, Madison observed.

In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence, in the United States, the great and essential rights of the people are secured against legislative as well as executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain but from legislative restraint also; and this exemption, to be effectual must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws. . . . The nature of governments elective, limited, and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion, than might be tolerated by the genius of such a government as that of Great Britain. . . . In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both, being elective, are both responsible.

4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 569-70 (J. Elliot ed. 1881). It is Madison's justification for the speech-press clause — control of the abuse of governmental power — upon which Justice Brennan chiefly relied in the most significant of the modern first amendment cases, New York Times Co. v. Sullivan, 376 U.S. 254, 273-76, 84 S.Ct. 710, 722-23, 11 L.Ed.2d 686 (1964). Madison's control of abuse of governmental power justification has been referred to by a leading first amendment commentator as the checking value of the first amendment. See Blasi, The Checking Value in First Amendment Theory, 1977 A.B. Found. Research J. 523. That checking value and Alexander Meiklejohn's closely-related, self-government principle are most directly involved when those in power in government attempt to withhold information about their activities from the people to whom the government belongs.

The majority, while paying lip service to the value of information to the public, in essence rejects the checking value and the related, self-government principles as the most fundamental justifications for the speech-press clause. That rejection is nowhere better disclosed than in the statement:

It simply does not seem reasonable to suppose that the free speech clause would speak, as it does, solely to government interference if the drafters had thereby intended to create a right to know and a concomitant governmental duty to disclose.

At 1168. The sentence reveals a fundamental misconception of the very purpose of clauses in written constitutions placing limitations upon rather than conferring authority upon governments. The line of reasoning that because the first amendment only limits governmental action it therefore does not create individual rights or impose governmental duties is as illogical as the proposition that because the fourth amendment does not address invasions of privacy it should not be construed to require governmental acknowledgment of privacy rights.

The majority's attempt to develop an historical justification for its rejection of the checking value or self-government purpose of the speech-press clause is no more persuasive than its illogical reliance upon the fact that the clause only limits the government. The opinion of the court correctly notes that government secrecy was a major concern in several of the state ratification conventions that considered the 1787 constitution. The referenced materials, however, shed no light upon the question we address, for they antedate the first ten amendments, which were proposed by the First Congress in response to those and other concerns about the power of the central government. With the arguable exceptions of the second and tenth amendments, which may address federalism concerns, all clauses of the bill of rights, but especially the speech-press clause, impose limitations upon governmental power in favor of individual liberty.

The reference to the early practice of the Senate and House of Representatives adds little. The journal clause in Article I, Section 5, which antedates the first amendment, lays down a general disclosure rule, "excepting such parts as may . . . require secrecy." U.S. Const. art. I, § 5. The first amendment is not absolute. It accommodates the need for governmental secrecy, both legislative and executive, in certain instances. I would not suppose, however, that if presented with the question the Supreme Court would defer totally to Congress with respect to the secrecy of legislative proceedings. Rather it would, as it has frequently done, accommodate the competing governmental interest in secrecy and the values of the first amendment. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

The weakest reed in the majority's attempted historical justification for rejecting the checking value and the related, self-government principle as the most fundamental justifications for the speech-press clause is the strange reliance upon Jefferson's assertion of executive privilege in the trial of Aaron Burr. That reliance is strange because the instance presented the unusual spectacle of the executive branch seeking a sanction through the Article III courts, while simultaneously asserting the absolute power to withhold exculpatory information. Had Burr been convicted by a jury, rather than acquitted, there is little doubt that the Supreme Court would have exercised judicial review over Jefferson's grandiose notions of executive privilege. Jefferson's executive privilege extremism in the Burr case has since been unanimously rejected as precedential in the only case in which any president relied upon it to claim the power to withhold information in a criminal proceeding. See United States v. Nixon, 418 U.S. 683, 703-13, 94 S.Ct. 3090, 3105-10, 41 L.Ed.2d 1039 (1974).

Finally, the majority relies upon the recent legislative initiatives such as the Freedom of Information Act of 1967, as amended, 5 U.S.C. § 552 (1984), the Privacy Act of 1974, as amended, 5 U.S.C. § 552a (1984), the Government in Sunshine Act of 1976, 5 U.S.C. § 552b (1982), and similar state statutes. It is undoubtedly true that many of these changes "may be traced to the greater public need for such information that has accompanied the growth of government at all levels." At 1170. It is not true, however, that legislative implementation of the citizens' right of access to that information needed for intelligent self-government suggests that the first amendment does not protect that right. The content of the referenced legislation might well inform courts when they are called upon to strike the appropriate balance between governmental secrecy and the first amendment right to information, a task not presented in this record. Legislative initiative in acknowledging a right of access cannot, however, be construed as a negation of that right.

The theme of the majority opinion is to reject the information role of the speech-press clause in citizen participation in self-government in favor of a model of government in which elected executive or legislative branch officials are deemed to have been delegated the power to decide for us what we need to know. That "big brother" approach to democratic government carries with it the seeds of destruction of participatory democracy, for it places in the hands of those chosen for positions of authority the power to withhold from those to whom they should be accountable the very information upon which informed voting should be based. One cannot vote to throw the rascal out until informed of rascality. Thus the majority's approach to the structural purposes of the first amendment is profoundly anti-democratic.

C.

Since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it has been clear that, just as Madison urged in 1799, the speech-press clause restrains government with respect to both prior restraints and post-publication sanctioning, although not in the same manner nor to the same degree. Long before the Court adopted Madison's suggestion that the clause applied to post-publication sanctions, however, it was settled doctrine that prior restraints upon the dissemination of information came laden with an extremely high burden of justification. The seminal case announcing the general presumption against the validity of prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Although from time to time it has not been unanimous with respect to whether a government imposing such a restraint has satisfied the heavy burden of justification, the Court has never waivered from the basic rule. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).

Considering the speech-press clause in light of its fundamental relationship to self-government and to control of the abuse of governmental power, the ultimate prior restraint by government upon the speech that is the core concern of the clause is ignorance of governmental affairs imposed by nondisclosure. If Times Leader had been required to submit for prior approval what it intended to publish about the Department, no one would doubt that the speech-press clause was violated. If the Department had by rule or practice permitted access to records on the condition that only such information as it approved of could be published, few would doubt that the rule or practice operated as a forbidden prior restraint. The selective nondisclosure of governmental records as a practical matter imposes, with respect to governmental activities, a prior restraint having the identical effect. The people cannot discuss governmental activities of which they are kept in ignorance. They cannot make the choices required of voters by our system of self-government on the basis of information about the activities of those in power if information about those activities is withheld from them. Indeed, the Commonwealth's position presents the problem of prior restraint in its most pernicious form because it permits the selective release of information in the unbridled discretion of those holding the reigns of governmental power. Thus, it presents the possibility — indeed virtually the certainty — that such public debate about governmental affairs as does occur will be distorted by governmental interference such as that described by the Department's Community Relations Coordinator in this record as "purging" files.

D.

The question, then, 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.

We may set to one side those cases, on which the Commonwealth chiefly relies, dealing with the distinct question whether the press has a separate and superior right to information beyond that shared by the public at large. Time-Leader does not in this case seek such a preferred position. Thus, the rejections in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974), and Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) of press arguments for a favored position that would overcome the incidental restraining effects of other valid governmental objectives lend no support to the Commonwealth's position. Indeed, in those very cases, the court was careful to note that there was no absolute governmental right to withhold information.

In Branzburg v. Hayes, for example, while rejecting the contention that members of the institutional press are more free than other persons from the obligation to give testimony, Chief Justice Burger carefully noted, "We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press would be eviscerated." 408 U.S. at 681, 92 S.Ct. at 2656. In Pell v. Procunier, while rejecting the contention that the press have a greater right of access to inmates than is afforded by California's prisoner visitation regulations, Justice Stewart justified the resulting restraint as no more than a reasonable time, place, and manner regulation of communicative activity, an issue not presented in this case. He was careful to observe, however, 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". . . . By the same token, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." . . . Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published.

417 U.S. at 832, 94 S.Ct. at 2809 (citations omitted). Plainly, had the purpose of California's regulations been to withhold information about prisons rather than to regulate communication in a manner consistent with prison security, the result in the case would have been otherwise. The same is true of the regulations of the Federal Bureau of Prisons considered in Saxbe v. Washington Post Co., decided on the same day.

The Commonwealth urges, and the majority reasons, that the careful reservations articulated in Branzberg, Pell, and Saxbe about the first amendment protection of access to public information were swept aside in Houchins v. KQED, Inc.. Both rely on dicta in the plurality opinion of Chief Justice Burger that arguably may be construed as suggesting that there is no first amendment protection for the news-gathering function. See 438 U.S. at 9, 13-15, 98 S.Ct. at 2593, 2596-97. Assuming that the Chief Justice meant some of the ambiguous statements in the plurality opinion to be so construed, the plurality opinion by three members does not represent the view of a majority of the court. Only seven justices participated and as subsequent cases make clear, the views expressed by Justice Stevens for himself and Justices Brennan and Powell that "the First Amendment protects not only the dissemination but also the receipt of information and ideas," 438 U.S. at 19, 30, 98 S.Ct. at 2599, 2604 (Stevens, J., dissenting, with whom Brennan, J. and Powell, J. joined), now command a substantial majority. "Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large," Justice Stevens wrote, "the process of self-government contemplated by the Framers would be stripped of its substance." Id at 32, 98 S.Ct. at 2605. (footnote omitted). Moreover, the issue in Houchins was physical access by the press to a prison and thus to a place in which security concerns are paramount, and the holding went no further than to reject a preferred position for the press with respect to time, place, and manner restrictions on access to information. Id. at 15-16, 98 S.Ct. at 2597.

Restraints on access to information that were not merely time, place, and manner restrictions, but attempts to withhold information were first addressed in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The case involved access to a pretrial judicial proceeding, and thus involved the inevitable tension between those constitutional and statutory provisions designed to afford a fair trial and the fundamental disclosure policy enshrined in the speech-press clause. The opinion of the Court discussed the claimed right of access principally in terms of the public trial guarantee in the sixth amendment, and balanced the temporary denial of access against the risk of disclosure to potential jurors of inadmissible evidence. Justice Stewart assumed, arguendo, that there was a first amendment right of access, and wrote,

Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public then had a full opportunity to scrutinize the suppression hearing. Unlike the case of an absolute ban on access, therefore, the press here had the opportunity to inform the public of the details of the pretrial hearing accurately and completely. Under these circumstances, any First and Fourteenth Amendment right of the petitioner to attend a criminal trial was not violated.

443 U.S. at 393, 99 S.Ct. at 2912. Justices Stevens and Powell indicated that in their view the first amendment protected access to governmental information. See id. at 391-93, 99 S.Ct. at 2911-12. (Stevens, J., joining in the opinion of Justice Stewart); 379-403, 99 S.Ct. at 2905-17 (Powell, J., concurring). Thus, it is clear from DePasquale that there was no majority support for any dicta in Houchins that the first amendment did not protect the public's right of access to governmental information. The majority's statement that "a majority of the seven judge Court in Houchins held that there is no First Amendment right of press access to government-held information and, in the process, rejected the idea of a First Amendment right of public access," at 1171, is plainly misleading.

What was implicit in DePasquale became explicit in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580-81, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980), in which the Court held that there was a public right, shared by the press, to attend criminal trials. That right, the Court held, was protected by the first amendment. Thus, it could be restricted only if the government could demonstrate a compelling interest justifying the denial of access. Id. at 581, 100 S.Ct. at 2829. In contrast to some of the language he used in Houchins, Chief Justice Burger explicitly recognized that the speech-press clause "prohibit[s] government from limiting the stock of information from which members of the public may draw." Id. at 576, 100 S.Ct. at 2826. Indeed, he expressly adopted the Madisonian version of the purpose animating the amendment, observing that the speech, press, and assembly clauses "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government." Id. at 575, 100 S.Ct. at 2826. Criminal trials were identified as only one aspect of government. Id. In his concurring opinion in Richmond Newspapers, Justice Stevens described the majority opinion as an unequivocal holding that "arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment." Id. at 583, 100 S.Ct. at 2830. The several other concurring opinions all endorsed the holding that the first amendment protects access to government information. Id. at 584, 100 S.Ct. at 2831 (Brennan, J., with whom Marshall, J., joined); 598, 100 S.Ct. at 2839 (Stewart J., concurring); 601, 100 S.Ct. at 2840 (Blackmun, J., concurring).

Two years after Richmond Newspapers, the Court once again confronted the issue of governmental action designed to deny access to information about governmental affairs. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Court addressed a Massachusetts statute providing for mandatory exclusion of the press and the public from trials involving sexual offenses against minors. In the opinion of the Court, Justice Brennan related the right of access protected by the first amendment to the Madisonian values he had previously relied upon in New York Times Co. v. Sullivan. Id. at 604, 102 S.Ct. at 2618. He went on to hold that the test for measuring the validity of a restraint upon access was the same as that traditionally applied in other prior restraint contexts. The restraint must be justified by a compelling governmental interest, and must be narrowly tailored to serve that interest in the manner least intrusive upon first amendment rights. Id. at 606-10, 102 S.Ct. at 2619-22. More recently in Press-Enterprise v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the Court, considering the question whether the public could be excluded from voir dire proceedings, held that the public's right of access could be overcome only "by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 510, 104 S.Ct. at 824.

The cases from DePasquale through Press-Enterprise thus make clear that a governmental restriction on access to information about governmental matters presents a first amendment question, and that such a restriction, like any other prior restraint, can be sustained only if it demonstrably advances significant governmental interests and is narrowly tailored to serve those interests. See also United States v. Smith, 776 F.2d 1104 (3d Cir. 1985); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984).

E.

Although the judges in the majority are plainly uncomfortable with the Supreme Court's acknowledgment in the access cases discussed above of the structural first amendment purpose of informing the electorate, they can hardly claim to be free to reject those cases outright. Instead, adopting the position urged by the Commonwealth, they point to language in Press-Enterprise suggesting that historical practice with respect to access is significant. Arguably the language relied upon applies only to access to various stages of the judicial process rather than to access to records of the executive or legislative branches of government. I am willing to assume, arguendo, however, that historical practice is relevant to denials of access in those branches of government as well. It is one thing to recognize, as the court did with respect to the first amendment right of access to judicial proceedings, that historical practice may be a relevant consideration in determining the government's countervailing interest in secrecy. It is quite another to impose it as an affirmative pleading requirement upon the party asserting the protection of the first amendment. No opinion from DePasquale through Press-Enterprise can be read to ordain any such pleading requirement. Quite the contrary. In recognizing a first amendment right of access, the justices in the majority have made it clear that, consistent with long-settled first amendment jurisprudence, that right can be denied only if the government establishes a compelling interest justifying the denial.

The majority's distortion of the holdings from De Pasquale through Press-Enterprise into a pleading standard that they simply do not announce is understandable. Done otherwise, the majority, although uncomfortable with the structural first amendment purpose that those cases acknowledge, would have had to decide if the burden of justification of the restraint, historical or otherwise, was placed, where it is placed in all other first amendment contexts, and would have had to balance the government's interest in secrecy against the need for openness and the relevant historical practices suggesting openness. But the government in this instance made no attempt to demonstrate any compelling governmental interest in secrecy. Thus the majority can refer to no such interest. That being the case, the majority simply erects a pleading bar and thereby sidesteps its obligation under conventional first amendment jurisprudence to examine the restraint and to determine whether it is narrowly tailored to the identified governmental interest. In sum, by the device of imposing upon Times Leader a totally unprecedented burden of proving prior historical practice — plainly a matter of justification for a restraint on first amendment rights on which the government bears the risk of nonpersuasion — the majority has evaded the responsibility, plainly imposed in Press-Enterprise, that it "articulate findings with requisite specificity" and "consider alternatives to closure and to total suppression." 464 U.S. at 513, 104 S.Ct. at 826.

Not only is the majority's ingenious invention in Part III E of the opinion of the court inexcusably inconsistent with long-settled first amendment pleading rules, but the majority's application of this pleading invention is on this record totally indefensible. As noted in Part I above, Rule 12(b)(6) motions may be granted only if the verified complaint and supporting affidavits set forth no set of facts which, if proved at trial, would entitle the plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Even assuming that the plaintiff has the burden of proving a history of access, the pleadings, read as Conley v. Gibson requires that they be read, would permit proof of such practice. As noted in Part III A above, Times Leader has pleaded that Pennsylvania law permits the disclosure of all of the requested information with the possible exception of those documents that are arguably covered by the attorney-client privilege. Moreover Times Leader has pleaded that under Pennsylvania law the great bulk of the requested materials are classified by Pennsylvania law as public records. It is true that Pennhurst II precludes the grant by a federal court of a remedy predicated upon the Pennsylvania statutes. That holding does not suggest, however, that the statutes are irrelevant to the issue of historical rights of access. Plainly the Pennsylvania statutes are the best evidence of historical practice, and they may not be disregarded. Thus even accepting the majority's erroneous invention of a new pleading requirement for first amendment cases, the opinion of the court is wrong because it misapplies this pleading standard.

F.

While the Supreme Court has thus far recognized a first amendment right of access in cases involving judicial proceedings, application of that right to the executive and legislative branches is an a fortiori case. In Alexander Bickel's felicitous phrase, the judiciary is the least dangerous branch. The need for careful scrutiny of the activities of the executive and legislative branches is heightened by the fact that they possess far more power than the judiciary, and thus far more capacity to abuse power.

I would hold, therefore, that the district court misread the case law from De Pasquale through Press-Enterprise and erred in holding that Times Leader has failed to state a claim upon which relief can be granted under the first amendment. The burden is on the Commonwealth to tender a compelling governmental interest to justify its denial of access or its reasonable time, place, or manner restriction, if the restriction in this case can be classified as one, and it neither pleaded nor proved either. The majority's ingenious invention of a new first amendment pleading rule is bad law and, even if it is not bad law, in this case it is misapplied law. The dismissal of Times Leader's first amendment claim should be reversed.

IV. [121] Equal Protection Claim

I agree with the majority that Times Leader's equal protection claim should be reversed. Applying the pleading standards applicable to a Rule 12(b)(6) motion to dismiss, I have no doubt that Times Leader's pleading would permit it to prove that the Department of Environmental Resources has discriminated among newsgatherers on the basis of a perceived favorable or hostile editorial stance. Such proof certainly would entitle Times Leaders to relief for a violation of the equal protection clause. See, e.g., Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1950) ("The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body."); Bonner-Lyons v. School Committee of Boston, 480 F.2d 442, 444 (1st Cir. 1973) ("once a forum is open for the expression of views . . . under the equal protection clause neither the government nor any private censor may pick and choose between those views which may or may not be expressed").

I write separately to note, however, that the fundamental rights body of equal protection case law is an independent basis for reversing the dismissal of Times Leader's first amendment claim. In a great variety of contexts the Supreme Court has recognized that restrictions upon the exercise of constitutionally protected rights may be justified, even if the government's interests are legitimate and substantial, only if the restrictions are narrowly tailored to their legitimate objectives. That rule has been applied to restrictions upon expression, see Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 102, 92 S.Ct. 2286, 2291, 2293, 33 L.Ed.2d 212 (1972), and upon the free exercise of religion, see Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). There is no reason why it should not be applied, as well, to the first amendment right of access here involved. The Pennsylvania statutes dealing with access to information, as construed by the Commonwealth defendants, are under the standards of these cases facially invalid. Rather than being narrowly tailored to legitimate objectives, they permit unbridled executive branch discretion. This is an entirely separate ground for reversal.

Times Leader could, on the basis of the pleadings, prove not only unbridled discretion to release or withhold information falling within section 66.1(2), a matter of facial invalidity, but also the release of information to persons deemed by government officials to be supportive and the withholding of information from persons deemed critical. Singling out persons for adverse treatment on the basis of their perceived relationship to the regime in control of the government would in my view qualify as an application of the Pennsylvania statute "with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to . . . all . . . persons," by the fourteenth amendment. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1072, 30 L.Ed. 220 (1886).

Since the statutory scheme affecting a first amendment right is not narrowly tailored to meet a legitimate governmental interest, it is facially invalid. Even if it were valid, Times Leader has pleaded that it has been applied in a manner that violates the equal protection clause. Thus for two independent reasons I join in the judgment reversing the dismissal of Times Leader's equal protection claim.

[126] GARTH, Circuit Judge, dissenting:

Although I agree with the majority that Times Leader has failed to state a claim under the first amendment compelling a right of access to the state executive branch documents and records sought here, I nevertheless am compelled to dissent from the majority's judgment. I do so because the majority has vacated the district court's judgment and has remanded so that Times Leader may develop a record in support of its so-called equal protection claim.

The district court, which had been faced with DER's 12(b)(6) motion to dismiss, correctly held that no cause of action for which relief could be granted was presented by Times Leader's complaint. Because no trace of an equal protection claim can be found in that complaint, I find no justification for this court to vacate the district court's order. Since no equal protection claim was pleaded or even intimated in the complaint, I can find no principled basis for the majority's action. I therefore dissent.

I.

In its amended complaint, Times Leader complained it had been denied access to various documents and records and that that denial violated the "public's right to know about the effectiveness with which the defendants and the DER are protecting the environment in Northeast Pennsylvania." Complaint ¶ 11, App. 12a. times Leader also alleged that DER had engaged in a practice of denying public access to records. Finally, the complaint, obviously referring to DER's alleged denial of public access, stated that:

The standards utilized by the Department of Environmental Resources to grant or deny access to the public to records of DER are arbitrary and capricious.

Complaint ¶ 13, App. 13a.

Thus, no allegation in the complaint charges selectivity by the defendants in their distribution of information. The mere allegation that DER employed "arbitrary and capricious" disclosure policies can by no stretch of the imagination constitute a well-pleaded cause of action under the equal protection clause of the fourteenth amendment. At the least, such a cause of action would require some indication that disclosure to someone at sometime had been made and that such disclosure discriminated against the complainant or otherwise constituted a denial of equal protection. No such allegation appeared in Times Leader's original complaint nor in its amended complaint.

The district court dismissed the complaint solely on the basis that Times Leader was not entitled to a first amendment right of access. That was the only claim ruled on by the district court. While it is true that the district court's opinion, for reasons which do not appear on the record, addressed in dictum a fourteenth amendment equal protection claim, that discussion cannot provide the foundation for a cause of action where the complaint is totally devoid of any language which could even remotely be construed to state a claim under the equal protection clause. District Court op. at App. 84-85. The majority's reliance not on its own reading of the complaint but on the district court's discussion of an equal protection claim that was never pleaded, is unprecedented.

The majority opinion acknowledges that Times Leader ". . . fails to specify what information, denied to it, has been disclosed to others", Maj. op. at 1176, and indeed nothing appears which indicates that Times Leader ". . . articulated its [equal protection] claim before the district court." Id. Significantly, the majority opinion does not even claim that the allegations of Times Leader's complaint set forth an equal protection claim. Rather, without referring to the particular allegations (of which there are none), the majority relies on the district court's equivocal treatment of an equal protection claim as a substitute for its own examination of Times Leader's complaint. The majority opinion, apparently recognizing the weakness of this position, then seeks to buttress its holding by stating ". . . at oral argument before us, Times Leader represented that there was reason to believe that there had been D.E.R. discrimination between newsgatherers since the district court's decision." Maj. op. at 1176.

Obviously, matters occurring after the district court's decision could not have been before the district court when the district court ruled. Moreover, oral arguments made before a Court of Appeals can not cure a deficient cause of action by attempting to supply those elements of a cause of action which are not stated in the complaint.

II.

As I have observed, the record does not disclose why the district court even addressed an equal protection claim. Significantly, however, if the issue that the district court found necessary or desirable to discuss arose because of assertions made in Times Leader's motion for a preliminary injunction (a motion which was never heard or ruled upon), the district court in any event found such pleading to be deficient. moreover, the district court correctly noted that no equal protection claim was "alleged" because Times Leader did "not identify the particular, insular group which is receiving unfair or discriminatory treatment", nor did Times Leader "even attempt to allege that the exact information was sought by all persons." District Court op. at App. 85a.

It is well-established that a plaintiff seeking to assert an equal protection claim must at the very least allege that "he is receiving different treatment from that received by other individuals similarly situated." Kuhar v. Greensburg-Salem School District, 616 F.2d 676, 677 n. 1 (3d Cir. 1980). "A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual." Huebschen v. Department of Health and Social Services, 716 F.2d 1167, 1171 (7th Cir. 1983). See Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983) ("To establish a violation of the equal protection clause, a plaintiff must show that the allegedly offensive categorization invidiously discriminates against the disfavored group.") Times Leader's complaint fails to provide any allegations which even suggest these basic and rudimentary components of an equal protection claim.

The majority's decision to vacate and remand on the ground that an equal protection claim has been pleaded where no such allegations appear in the complaint does a tremendous disservice to the district court which had before it a fatally deficient pleading. Even under the most generous reading of Times Leader's complaint, an equal protection claim cannot be found. So that there can be no misunderstanding as to what the complaint in fact stated, I reproduce in full the amended complaint in an appendix to this opinion. I defy the most liberal pleader to read that complaint from end to end and find even the semblance of an equal protection claim.

III.

Moreover, the defendants could not possibly be put on notice as to the nature of an equal protection claim based on a reading of the complaint. Nowhere are the specifications which Times Leader alleges to constitute discriminatory behavior set forth in even the most general terms so as to enable the defendants to file an appropriate answer to defend this action.

After all, the district court, in ruling on the defendant's motion to dismiss, and this court in reviewing that ruling, have not been confronted with an unartfully drawn pro se complaint. Even if we had been, this complaint would have been fatally deficient. A fortiori, where the complaint was drafted not by an unschooled pro se litigant, but by trained counsel, I can find no excuse for our acting as co-counsel and structuring the complaint as we would have drawn it, but as counsel has not.

As Chief Judge Aldisert recently wrote in dissent in a case where this court reversed the district court's 12(b)(6) dismissal of a § 1983 civil rights complaint: "I see no reason to torture and twist controlling case law to accommodate plaintiffs' counsel. I would not reward slipshod lawyering by making [the district court judge] the patsy for counsel's derelictions and by branding the judge's action as reversible error." District Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986) (Aldisert, C.J., dissenting).

Because I read Times Leader's complaint as I believe complaints should be read, that is, in accordance with the words and terms found in the complaint, and because I have not deemed it an appropriate judicial exercise to conjure up a claim which Times Leader might have wished to state, but which it clearly did not, I find no reason for vacating the district court's judgment and remanding so that Times Leader may now seek to develop a record in support of its chimerical equal protection claim. Times Leader has never sought a second amendment of its complaint, and I find no justification asserted by Times Leader for granting it an opportunity to develop still another record at this late stage of this proceeding. Indeed, even when arguing before us, Times Leader did not seek that opportunity.

Thus, I would hold that the district court correctly dismissed the complaint that was before it for failure to state a cause of action upon which relief could be granted. Since the majority refuses to read and rule on the same complaint that the district court was obliged to read and rule on, I dissent.

APPENDIX

Vs.

CIVIL ACTION NO. 84-1024 of 1984

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Aug. 10, 1981

AMENDED COMPLAINT