dissenting.
I would reverse the judgment of the district court and hold that the Colorado statute offends the First Amendment right of access to criminal proceedings. I believe that this case is governed by the teachings of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986) (hereinafter Press-Enterprise II):
In cases dealing with' the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a “ ‘tradition of accessibility implies the favorable judgment of experience,’ ” Globe Newspaper [Co. v. Superior Court], 457 U.S. [596], at 605[, 102 S.Ct. 2613, at 2619, 73 L.Ed.2d 248 (1982)] (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589[, 100 S.Ct. 2814, 65 L.Ed.2d 973] (1980) (BRENNAN, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public....
Second, ... the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question.
Although it is true that the “Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control,” Houchins v. KQED, Inc., 438 U.S. 1, 9, 98 S.Ct. 2588, 2593-94, 57 L.Ed.2d 553 (1978) (Burger, C.J., plurality opinion), when it comes to criminal proceedings, “[i]f the particular proceeding in question passes ... tests of experience and logic, a qualified First Amendment right of public access attaches.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740.
In order to determine if the Colorado Criminal Justice Records Act, Colo.Rev.Stat. § 24-72-305.5, is constitutional, we must examine the records to which it bars access under a three-part inquiry: (a) whether “criminal justice records” and “official actions” are part of “criminal proceedings,” (b) whether national experience provides for public access to such records and (c) whether access by the public plays a significantly *1517positive role in the functioning of the process in question. See Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 605-06, 102 S.Ct. at 2619-20.
In my view, we must answer all three questions in the affirmative.
I.
To ask the first question is also to answer it. The Colorado statute clearly precludes access to “[r]ecords of official actions and criminal justice records” to certain individuals. Colo.Rev.Stat. § 24-72-305.5. “Criminal justice records” clearly refer to the records of criminal prosecutions. The statute’s definition of “official action” covers all aspects of criminal proceedings:
“Official action” means an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify or relocate any person under criminal sentence.”
Colo.Rev.Stat. §' 24-72-802(7).
There can be no question that Colo.Rev. Stat. § 24-72-305.5 relates to the records of criminal proceedings.
II.
We must next examine the experience prong of our three-part inquiry. In El Vocero De Puerto Rico v. Puerto Rico, — U.S. -, -, 113 S.Ct. 2004, 2006, 124 L.Ed.2d 60 (1993), the Court held that “the ‘experience’ test of Globe Newspaper does not look to the particular practice of any one jurisdiction, but instead ‘to the experience in that type or kind of hearing throughout the United States.’ ” (citing Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 323 (1st Cir.1992)). In Press-Enterprise II, 478 U.S. at 11, 106 S.Ct. at 2741-42, the Court established that “[ojpen preliminary hearings ... have been accorded ‘the favorable judgment of experience.’” (citing Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619). The records at issue here, by and large, relate to prelimi--nary proceedings. Furthermore, this court “acknowledged the axiom that a common law right exists to inspect and copy judicial records.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir.), cert. denied sub nom. Hopkinson v. United States, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985). As Colorado notes in its brief, “prior to the passage of the Colorado Criminal Justice Act records were released pursuant to a common law .... obligation to do so.” Brief of Appel-lee at 7 n. 3. Although the Colorado experience is not dispositive, it is indicative of the “national tradition” of access to these records. See United States v. Suarez, 880 F.2d 626, 630 (2d Cir.1989) (recognizing a presumption of public access to a criminal trial and to documents filed in connection with criminal proceedings). Accordingly, the right of access contention meets the test of “experience.”
III.
We must now inquire into the last prong: What value, if any, does public access to the State’s criminal justice records add to the judicial process? Whether access is available to Appellants through a qualified First Amendment right depends on “whether public access ... plays a particularly significant positive role in thé actual 'functioning of the process.” Press-Enterprise II, 478 U.S. at 11, 106 S.Ct. at 2742.
In general, “the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.” Richmond Newspapers, 448 U.S. at 571, 100 S.Ct. at 2824.
A.
Here, however, only a specific sector of society has been denied access to Colorado’s criminal justice records. One Appellant, Lanphere & Urbaniak, is a Colorado Springs law firm, which handles many cases invblving misdemeanor traffic offenses and driving under the influence of alcohol cases. The remaining Appellant, Frank Mutchler, directs the Turning Point Drug and Alcohol Treatment Center, also located in Colorado Springs. Prior to June 1992, the effective *1518date of the statute, Appellants used El Paso County Court records to obtain the names and addresses of individuals being prosecuted for driving under the influence and other traffic violations. The information was used for direct mail solicitation and advertising. The statute now prohibits the use of El Paso County Court records for “the purpose of soliciting business for pecuniary gain.” Colo. Rev.Stat. § 24-72-305.5.
Colorado argues that Appéllants’ solicitations for pecuniary gain provide no significant value to the court processes.
B.
Notwithstanding the State’s attempt to characterize the Appellants’ behavior as unsavory, direct mail advertising by lawyers is a constitutionally protected activity. Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 472, 108 S.Ct. 1916, 1921, 100 L.Ed.2d 475 (1988) (“Lawyer advertising is in the category of constitutionally protected commercial speech.”). No suggestion has been made that solicitation of candidates for alcohol' rehabilitation is prohibited. We must look beyond any personal distaste for direct solicitation and, instead, look to the value these professionals provide to our legal system.
We have long recognized the value of legal representation in criminal proceedings. See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963) (“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”). Direct solicitation for clients may result in legal representation for individuals charged with offenses that may place liberty and property interests at risk, including the possible loss of automobile operation privileges. I believe that this plays a particularly significant positive role in the actual functioning of the judicial process. In addition, the attorney Appellants argue that direct mail solicitation serves an educational purpose because it informs members of the public of their rights in traffic court proceedings.
Lawyers 'are not the only professionals prevented from soliciting. Health care providers such as Mr. Mutchler may not solicit clients for their treatment centers.- Treatment of alcohol abuse benefits the justice system by attempting to limit the number of repeat offenders.
Therefore, not only does public access provide significant value in this instance, but it is value that goes to the very heart of our judicial system.
IV.
Under the Court’s three-pronged analysis, a qualified First Amendment right of access attaches to the criminal justice records regulated by the state of Colorado. Therefore, in order to close those records to all or part of the public, there must be a' compelling state interest in closure and a carefully tailored resolution of the conflict between that interest and First Amendment concerns. Globe Newspaper, 457 U.S. at 606-07, 102 S.Ct. at 2619-20.
The State suggests at least three compelling interests in closing the criminal justice records to the Appellants: (1) affording the individuals named in the records greater control over the information the State has concerning them, thereby preserving the right to privacy, (2) adhering to the original, intended uses of the records, namely the administration of justice and law enforcement and (3) eliminating the offensiveness of seeking monetary gain from another’s misfortune with the State’s assistance.
In the context of First Amendment analysis, I find none of these arguments persuasive. Upon close scrutiny the State’s interests are far from “compelling.”
A.
Colorado concedes that all of the information denied to Appellants by the statute is accessible to them through the El Paso County News, the official weekly newspaper for El Paso County, Colorado. The State’s interest in preserving the right of privacy of those arrested for driving under the influence is not so compelling that they have attempted to prohibit the publication of the names of these individuals in the El Paso County News. No citation is necessary to indicate that any attempt to prevent publica*1519tion of this information by the news media would be a violation of prior restraint precepts of the First Amendment. The statute is far too underinclusive to protect the privacy interest of those arrested for this offense.
B.
Colorado contends that by precluding the dissemination of names and addresses, fealty is being paid to the “original, intended uses of the records, namely, the administration of justice and law enforcement.” Brief of Ap-pellee at 29-30. I believe that this is an incomplete statement of the purpose of public records. As this court has previously made clear, the right to inspect and copy judicial records “is an important aspect of the overriding concern with preserving the integrity of the law enforcement and the judicial processes.” Hickey, 767 F.2d at 708 (citing United States v. Hubbard, 650 F.2d 293, 315 (D.C.Cir.1980)). To be sure, the interests of law enforcement must always be paramount, but those interests may never be interpreted as superior to or towering over the rights of those accused of a crime.
C.
In describing its third compelling interest in defense of the statute, Colorado makes the following engrossing statement:
Eliminating the offensiveness of seeking monetary gain from another’s misfortune with the State’s assistance. It is the State’s function and duty to .administer justice and enforce the law. It is not the State’s function or duty to provide a client base to private organizations seeking monetary gain.
Brief of Appellee at 30.
Even if the solicitation of clients by lawyers or alcoholic rehabilitation programs, a constitutionally protected, activity, is to. be considered offensive conduct, the offensive nature of such activities has been found by the Supreme Court to be an insufficiently compelling reason to abridge the public’s First Amendment rights. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, 103 S.Ct. 2875, 2882-83, 77 L.Ed.2d 469 (1983) (“At least where obscenity is not involved,'we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”) (quoting Carey v. Population Serv. Int'l, 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977)).
In a First Amendment analysis, the issue is not whether Appellants have access to a client base for monetary gain, but whether the State has the power to place off limits'to certain sectors of society records which hitherto have been open to all. As I read the teachings of the Supreme Court, so long as direct mail solicitation is “not false or deceptive and does not concern unlawful activities,” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985), it will be permitted and that the First Amendment right of public access to criminal proceedings applies to the public as a whole, without regard to the lawful use of the information gained through that access. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) (“The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurances that established procedures are being followed and that deviations will become known.”). It would be disingenuous to recognize as a compelling state interest the indirect regulation of that which the State clearly cannot directly regulate. See Edenfield v. Fane, — U.S. -, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (holding that Florida’s ban on in-person solicitation by Certified Public Accountants violated the First Amendment); see also Zauderer, 471 U.S. at 638, 105 S.Ct. at 2275.
Thus, the issue is not whether Colorado is obliged to provide a client base to the Appellants or required to furnish a source of news to El Paso County News. Rather, the question is to what extent may it deny public access, irrespective of the motivation for the access, so long as the motivation is not for an unlawful purpose. In my view, a desire for pecuniary gain in the world’s strongest capitalistic society operating under a democratic *1520political system has not yet been declared unlawful, offensive or unconstitutional.
V.
Therefore, I believe that Appellants possess a qualified First Amendment right of access to the records, which has been denied them by the Colorado statute. I would hold that the statute is unconstitutional and would reverse the judgment of the district court. Accordingly, I dissent.