The First Amendment Coalition, Frederick J. Huysman and Daniel R. Biddle, in 84-1164 v. Judicial Inquiry and Review Board, in 84-1153

OPINION OF THE COURT

WEIS, Circuit Judge.

The Pennsylvania Constitution provides that public access to records of the Judicial Inquiry and Review Board is allowed only if it recommends that the state supreme court impose discipline on a judge or member of the minor judiciary. The district court found that the federal constitution requires public disclosure by the Board in every instance in which it conducts a formal hearing even if no disciplinary action is recommended. We conclude that the Pennsylvania provision does not violate the federal constitution. In addition, we find that the Board’s order banning witnesses from disclosing their own testimony is over-broad. Accordingly, the district court’s order will be vacated and the case remanded for the entry of a new decree.

Plaintiffs are Frederick Huysman, a reporter for the Pittsburgh Post-Gazette; Daniel Biddle, a reporter for the Philadelphia Inquirer; and the First Amendment Coalition, a nonprofit corporation comprising newspapers, broadcasters, and media organizations. Defendant is the Pennsylvania Judicial Inquiry and Review Board which receives, investigates, and processes complaints of misconduct against members of the state judiciary.

Plaintiffs commenced the action in February 1983 seeking to obtain access to Board proceedings. They alleged that the Board was conducting private hearings on charges of misconduct which it had lodged *469against Associate Justice Larsen of the Pennsylvania Supreme Court after receiving a complaint and conducting a formal investigation. In accordance with state constitutional and statutory provisions, as well as the Board’s procedural rules, the public was denied access to the proceedings. During the hearings, plaintiffs Huysman and Biddle, who had been subpoenaed as witnesses, were prohibited “from disclosing in any way their own testimony or appearance before the Board.” Plaintiffs contended that the state’s confidentiality provision should be declared in violation of the First and Fourteenth Amendments of the United States Constitution.

Within a week after the suit was filed, the Philadelphia Inquirer, one of the Coalition members, stated in an editorial that it had obtained a full transcript of the proceedings before the Board and began to publish purported verbatim excerpts. At about the same time, the Board dismissed the charges against Justice Larsen without recommending discipline.

The Board’s prior practice had been to file a transcript of formal proceedings with the state supreme court in some cases in which the charges were dismissed, as well as in all those in which discipline had been proposed. After receiving an opinion from counsel, however, the Board determined that under the state constitution the record was to be sent to the court, and thus made public, only in those cases where discipline was recommended. Consequently, the Larsen record remained sealed.

The First Amendment Coalition then filed a petition for mandamus with the state supreme court asking that it compel the Board to file the record with the court. The petition was denied, the court stating that it was prohibited from granting the request because the Board had not suggested suspension, removal, discipline or retirement. In the absence of a recommehdation by the Board there was “no constitutional authority for [the] court to review the record and act. The matter is constitutionally closed.” First Amendment Coalition v. Judicial Inquiry and Review Bd., 501 Pa. 129, 133, 460 A.2d 722, 724 (1983).

Following these developments, the district court received evidence on the history and practices of the Board. No material issues of fact were in dispute, and the plaintiffs’ motion for summary judgment was granted. Preliminarily, the court rejected the Board’s contention that the case was mooted by the Inquirer’s publication of the Larsen transcripts. Observing that the Inquirer had “not shared its riches” with fellow members of the Coalition, the court found that the matter still presented a live dispute as to them. Moreover, the claims fell into the category of those capable of repetition yet evading review.

After surveying decisional law on the First Amendment and a right of access, the district court concluded that “a restriction on public and press access can be sustained, but only to the extent that it demonstrably advances significant governmental interests.” First Amendment Coalition v. Judicial Inquiry and Review Bd., 579 F.Supp. 192, 211 (E.D.Pa.1984). Noting that only a fraction of the Board’s investigations result in formal charges,1 the court found a substantial state interest “in protecting accused judges, and the judiciary itself, from the public hearing of charges, most of which will evaporate.” Id. at 214. Consequently, the Coalition’s “insistence on access to all charges other than those which are ‘obviously unfounded or frivolous’ is not persuasive.” Id.

However, in instances where the Board has preferred formal charges, the court concluded that denial of access impairs the public’s opportunity to appraise the work of the Board, the standards of judicial conduct it applies, and the consistency of enforcement.

*470Acknowledging the “trauma of public accusation,” one which is “greater for an official who, due to the special constraints of the bench, is largely disabled from seeking public support,” the court found a “tension between the identified public interest and the identified cost.” Id. at 215. “The way of maximizing these twin interests is to permit access to all cases in which the Board prefers formal charges — but to defer the time of access until the Board’s filing with the Supreme Court of a transcript which fully records the Board’s proceedings.” Id. As a result, the state constitutional requirement was modified by the district court’s directive that the Board make public, on disposition, the record of all proceedings in which it had filed formal charges.

In discussing the contentions of the individual plaintiffs, the district court recognized a valid state interest in insisting on witness secrecy. Id. at 217. Accordingly, the court declared that the Board may “impose confidentiality upon any witness who appears and testifies ... concerning the fact of the witness’ appearance and the substance of any testimony until such time as the record of the Board’s proceedings are made available to the public.”

All parties have appealed. Plaintiffs contend that the court erred in allowing access only to a transcript at the completion of formal proceedings and that the restrictions on nonparty witnesses violate the constitutional guarantee of free speech. The Board argues that the confidentiality requirement is appropriate to the Board’s role, has only slight impact on news-gathering, and is consistent with federal constitutional standards.

I.

In response to the need for modernization of its constitution, Pennsylvania called a convention in 1968. Although a number of changes in the organization of state government were proposed, the principal item presented to the delegates was the preparation of a new judiciary article. The convention ultimately submitted a proposal, designated Article V of the state constitution, governing the selection, retention, and tenure of judicial officers.

One of the convention’s most valuable contributions to that Article was the establishment of a Judicial Inquiry and Review Board, a constitutionally independent body to oversee the conduct of the state’s judiciary. The essential elements of that proposal had been recommended to the Convention’s Preparatory Committee in 1967 by the Pennsylvania Bar Association. That presentation expressed dissatisfaction with the cumbersome method of impeachment as the sole procedure for grappling with the problems of the aged, infirm, irascible, or, in rare instances, corrupt judge. The Bar advocated a new method of solving these problems, including measures short of removal from office.

Favorable comments were received on the operation of the California Commission on Judicial Qualifications, which had been established some years earlier. Speaking on behalf of the state bar association, Bernard G. Segal, Esquire, devoted special attention to the fact that a number of California judges had voluntarily resigned or retired while under investigation by the Commission. He also remarked that under California practice when a complaint is filed with the Commission, its “investigations, deliberations, and conclusions on the case are completely secret, except, of course, if the Commission’s decision is appealed to the Supreme Court.” Statement of Bernard G. Segal on the Proposed Judiciary Article before the Preparatory Committee for the Pennsylvania Constitutional Convention.

Dean Laub of the Dickinson School of Law, a former judge, wrote an article listing the arguments for and against the features of the various plans proposed. He referred to the California plan noting, under that state’s procedure “confidentiality is maintained until the matter is referred to the Supreme Court for decision.” As a possible drawback to the California system, he listed the potential for abuse in the investigative power conferred on an inde*471pendent agency. He also discussed criticism of the plan followed in New York because its proceedings had no assurance of confidentiality. Laub, Issues Before the Judiciary Committee of the Pennsylvania Constitutional Convention, 39 Pa.B.A.Q. 390 (1968).

Materials submitted to the delegates discussed in even greater detail the pros and cons of confidentiality in Board proceedings. Removal, Suspension, and Discipline of Judges, reprinted in, The Pennsylvania Constitutional Convention, Reference Manual No. 5: The Judiciary. See also Woodside, Pennsylvania Constitutional Law, 433-38 (1985) (The author is a former Pennsylvania appellate judge and was a delegate to the convention).

In presenting the plan for a Judicial Inquiry and Review Board to the convention for a vote, William W. Scranton, Chairman of the Convention’s Judiciary Committee and a former governor of Pennsylvania, urged adoption. He stated that if the proposal were approved it would be “a tremendous step forward for the people of Pennsylvania as well as for the judges of same. It protects the judges and at the same time makes changes where changes are necessary in the finest kind of way.” Journal of the Constitutional Convention, February 29, 1968, page 1374. Review of the convention materials thus demonstrates that the question of confidentiality was actively considered in the preparation of the constitutional amendment.

As finally adopted by affirmative vote of the people of the state, the constitution provides for a Board composed of five judges, two lawyers, and two laymen. It receives complaints or reports and makes preliminary investigations. After further examination, the Board may order a hearing and direct the attendance and testimony of witnesses. “If after hearing, the Board finds good cause therefor, it shall recommend to the Supreme Court the suspension, removal, discipline, or compulsory retirement of the justice or judge.” Pa. Const. Art. 'V, § 18(g).

The state supreme court reviews the Board’s record and may receive additional evidence. Following that, the court may order discipline as recommended by the Board, may impose a different measure of discipline, or may exonerate the accused judge. “All papers filed with and proceedings before the Board shall be confidential but upon being filed by the Board with the Supreme Court, the record shall lose its confidential character. The filing of papers with and the giving of testimony before the Board shall be privileged.” Pa. Const. Art. V, § 18(h).

Implementing legislation consistent with the constitutional language was enacted and codified at 42 Pa.Cons.Stat.Ann. § 2101 et seq. (Purdon 1981). In accordance with a constitutional directive, the state supreme court drafted rules of procedure for the Board.

II.

Certain features of this case discussed by the parties in their briefs play no part in today’s decision. Initially, we note that although the Board’s earlier practice was to file its record with the state court in some cases where the charges were dismissed, it has now been authoritatively established that the state constitution permits filing only where discipline has been recommended. The Coalition does not now contend that the Board’s prior practice was consistent with the state constitution. The district court recognized the state’s construction of its constitutional provision as binding on the federal courts, and we agree with that determination.

Additionally, it should be apparent that since there has been publication of substantial portions of the Larsen hearings, the merits of that proceeding are not particularly pertinent here. The case before us is not legally moot, but realistically what is at stake is the Board’s procedure in future cases.

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 *472Amendment, 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. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam).

The issue before us is not whether the First Amendment prohibits the state from barring public observation of judicial disciplinary proceedings at all stages. Pennsylvania has provided for disclosure but has limited it to the situation in which discipline has been recommended and the record has been filed with the court. Consequently, we assume, but do not decide, that there is a constitutional right of access to disciplinary proceedings at some stage.

In argument before the court, counsel for the Coalition conceded that “the most difficult issue is the issue of where in the process the right of access attaches and we have struggled with this issue.” Indicative of that difficulty is the Coalition’s retreat from its original position that access was required to “all proceedings on charges which the Board has determined not to be frivolous or obviously unfounded.” The plaintiffs’ brief at 6. That would have permitted disclosure of informal action by the Board such as private reprimands and requests for resignations in lieu of formal hearings. The Coalition’s present contention is that contemporaneous access should commence at the point where the Board issues formal charges against a judge.

Although we assume a right of access, it does not attach at the same time it might in certain other contexts and at the point the Coalition urges on us here. By analogy to the cases establishing a First Amendment right of access to criminal trials, see, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555,100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and this court’s decision to extend the rationale to civil trials, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984), the Coalition maintains that where a constitutional right of access ■ is found to exist, a “presumption of openness” is created. This presumption, the Coalition contends, places the burden on the state to justify restrictions on access by showing a “compelling governmental interest [which the restriction] is narrowly tailored to serve.” Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982).

All rights of access are not co-extensive, however, and some may be granted at different stages than others. In assuming a right of access, we need not postulate a span as extensive as that in civil and criminal trials as such, but rather may be guided by the unique history and function of the Judicial Review Board.

Richmond Newspapers and the cases decided in its wake stressed the tradition of open trials in England and then later in colonial America. Since the Bill of Rights had been adopted “against the backdrop of the long history of trials being presumptively open,” 448 U.S. at 575, 100 S.Ct. at 2826, the Court concluded that the First Amendment prohibits the “government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.” Id. at 576, 100 S.Ct. at 2827.

But the cases defining a right of access to trials are, at best, of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards. These administrative proceedings, unlike conventional criminal and civil trials, do not have a long history of openness. Recognizing this fact, the Coalition points to time honored judicial removal in open impeachment hearings.

Had the state constitutional convention acted to replace traditional impeachment with a substitute vehicle like the Judicial Inquiry and Review Board, a closer question of public access to the successor proceedings would be presented. But it is clear that the Board’s functions are intended to supplement rather than replace the historical methods of judicial discipline: im*473peachment and removal for conviction of a crime. Pa. Const. Art. V, § 18(h), 18(1); see also Judicial Discipline, 84 Dick.L. Rev. 447, 449-52 (1980). It was largely the recognition that these traditional methods are cumbersome and ineffective, partly because of their openness, that spurred the constitutional convention to conceive the new judicial disciplinary procedure.

Against this background, the “presumption of openness” gleaned from the history of criminal trials surveyed in Richmond Newspapers lacks force. Rather, in judicial disciplinary proceedings, what tradition there is favors public access only at a later stage in the process. A temporally based right is no stranger to the law. For example, tradition supports the secrecy of the grand jury, the entity in the criminal justice system to which the Board is most akin. Similarly, sidebar conferences between lawyers and judges at trial are contemporaneously confidential although they may later appear as part of the transcript. See United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977).

In choosing the point at which formal charges are filed as the stage when proceedings should become public, the Coalition uses an analogy with traditional criminal procedures beginning with the indictment. It would treat formal proceedings before the Board as the equivalent of the criminal pre-trial and trial proceedings. This analogy is faulty because the Board cannot impose, but only recommend, punishment, and in that sense its functions are similar to those of the grand jury. Only the state supreme court has the power to discipline just as in the criminal field only a court has the power to sentence.

It may be said that the Board’s recommendation has the effect of an indictment, not a conviction. The traditional notion of protection for a non-indicted target applies equally well in the disciplinary setting. That the Board’s rules grant the accused more extensive procedural rights than are allotted to the subject of a grand jury investigation does not undermine the analogy-

Forcing judicial review proceedings into an older criminal procedural mold would have a stifling effect on a state’s ability to use creative methods in solving its problems. It is quite uncertain whether the state would have chosen a judicial disciplinary program or have been able to implement one in the absence of the confidentiality provision. The Coalition has failed to show that the right of access it urges is so compelling as to justify the restriction on the state’s freedom of choice.

The Coalition goes beyond tradition when it argues that the “structural values” of the First Amendment are served by subjecting the proceedings of the Board to greater public access. In his concurring opinion in Richmond Newspapers, Justice Brennan wrote that the First Amendment embodied more than a commitment to free expression for its own sake but included a “structural” role in government. Falling within this concept is the notion that the public must be properly informed in order for a democracy to survive.

The Coalition contends that the Board, in carrying out its assignments, is performing a governmental function. The public has an interest in information about the conduct of its judiciary and consequently is entitled to assurance that the Board is properly discharging its duties. As we recently noted in United States v. Smith (Appeal of the Patriot News Co.), 776 F.2d 1104 (3d Cir.1985), structural values have been a consideration in the decisions granting a right of access to trial, and even some pre-trial proceedings. See United States v. Criden, 675 F.2d 550 (3d Cir.1982).

The “structural” argument alone cannot carry the day, however, because it has not developed independent of, and unrelated to, historical antecedents. The authority relied on by plaintiffs must be viewed in the context in which it was decided — the trial process which has a long common law tradition of openness. For a court to accept the structural considerations of the First Amendment without heed to the circumstances in which they are invoked would lead to an unjustifiably expansive interpre*474tation. See In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1332 (D.C.Cir.1985). Justice Brennan, an advocate of the structural theory of the First Amendment, has cautioned that “the stretch of this protection is theoretically endless.” Richmond Newspapers, 448 U.S. at 588, 100 S.Ct. at 2833 (concurring opinion). Consequently, the right to know “must be invoked with discrimination and temperance.” Id.

The structural arguments, of course, are legitimate constitutional underpinnings for the right of publication, but they do not mandate access. Chief Justice Warren must have envisioned such contentions when he wrote:

“There 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. The right to speak and publish does not carry with it the unrestrained right to gather information.”

Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-81, 14 L.Ed.2d 179 (1965). The Supreme Court has applied this limitation even in cases where the public does have an interest in gaining information— for example, attempts to establish a special right of access to prisons have been rebuffed. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).2

Even in the litigation setting, the right of access is subject to limitations. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), the Supreme Court stated that “pretrial depositions and interrogatories are not public components of a civil trial,” and accordingly, “restraints placed on discovered, but not yet admitted information are not a restriction on a traditionally public source of information.” 104 S.Ct. at 2207-08. It bears noting that the Seattle Times case upheld a trial court ban on dissemination of information, a form of prior restraint which is not often permitted.

The Coalition does not now contend that all of the Board’s activity should be open to the public. If the access question is envisioned as a line stretching from the extreme of completely open proceedings to completely closed ones, we find that each party has taken a position somewhere in the center. The battle here is not at the extremes, but in the middle ground.

The parties have staked out their positions in that area, the Board arguing that access is proper only as mandated by the state constitution, and the Coalition advocating the point at which it believes that the First Amendment requires access. The Board’s demarcation point is specific and fixed, whereas the Coalition’s position is somewhat selective and must rely on rather vaguely defined concepts in decisional law.

As noted earlier, the delegates to the state constitutional convention confronted the question of when access should begin. Their resolution, which is presently under attack, was arrived at with full knowledge of the competing concerns.

The plaintiffs’ contentions appear to be based primarily on the desirability of granting earlier access, an argument that influenced some nineteen states. But Pennsylvania and twenty-one other states have deliberately chosen to fix the point of access at a later stage.3

*475In the circumstances of this case, we find that the presumption of validity attaching to state legislative and constitutional provisions weighs heavy. See Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). This presumption does not relieve the courts of their obligation to make an independent inquiry when First Amendment rights are at stake, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978), but it does require that the state’s determination be upheld unless it is found to transgress a clear constitutional prohibition. In addressing a claim of access, the Chief Justice admonished the courts not to “confuse what is ‘good,’ ‘desirable,’ or ‘expedient’ with what is constitutionally commanded by the First Amendment. To do so is to trivialize constitutional adjudication.” Houchins v. KQED, Inc., 438 U.S. 1, 13, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1978) (Opinion of Burger, C.J.).

The Coalition’s burden is particularly heavy here because the concerns of access have been accommodated up to the point that the state has determined them to be outweighed by more compelling interests. In his oft-cited lecture, “Or of the Press,” 26 Hast.L.J. 631, 636 (1975), Justice Stewart said,

“There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy [citing Pell v. Procunier\ The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
“The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American Society.”

In this case, we have a state constitutional provision, precisely addressing the point, arrived at as a result of the tug and pull of political forces. Federal courts should not overturn a state’s evaluation of structural concerns in the absence of egregious circumstances. Here we are not presented with the fiat of a single official acting in a discretionary fashion, but with a constitutional provision enacted by a state in conformity with Article IV, § 4 of the federal constitution guaranteeing each state a republican form of government. See Bauers v. Heisel, 361 F.2d 581, 588-89 (3d Cir. 1966).

The notion that the effectiveness of judicial disciplinary boards depends to a large extent on confidentiality is not unique to Pennsylvania; the idea has been almost universally accepted. In Landmark Communications, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), the Supreme Court listed four advantages of confidentiality:

1. Encouraging the filing of complaints;
2. ■ Protecting judges from unwarranted
complaints;
3. Maintaining confidence in the judiciary by avoiding premature announcement of groundless complaints; and
4. Facilitating the work of a commission by giving it flexibility to accomplish its mission through voluntary retirement or resignation of offending judges.4

See also Mosk v. Superior Ct., 25 Cal.3d 474, 159 Cal.Rptr. 494, 601 P.2d 1030 (1979).

*476The possibility that judges would be harassed and the judicial system disrupted in the event of open hearings before a judicial inquiry board has not been an illusory concern. California, the first to adopt a commission-form of judicial discipline, included a constitutional provision assuring confidentiality of proceedings until filing with the state supreme court. The California Commission provided the model for the Pennsylvania Board, including its confidentiality requirements. See Frankel, Removal of Judges: California Tackles an Old Problem, 49 A.B.A.J. 166 (1963). The intuitive wisdom of that concept was confirmed by the near disaster experienced by the California Supreme Court when confidentiality concerns were brushed aside and charges against its Chief Justice were heard in public. See Cameron, The California Supreme Court Hearings — a Tragedy That Should and Could Have Been Avoided, 8 Hast. Const.L.Q. 11 (1980); Mosk, Chilling Judicial Independence— The California Experience, 3 West.N.Eng. L.R. 1 (1980); Tribe, Trying California’s Judges on Television: Open Government or Judicial Intimidation?, 65 A.B.A.J. 1175, 1178 (1979) (“Gallup Poll Justice at its Worst”).

In his article, Professor Tribe describes confidentiality in disciplinary proceedings as “[protection vitally needed to encourage collegiality, candor, and courage — both political and intellectual — protection needed not only for the benefit of judges but for the benefit of society as a whole.” 65 ABA J. 1179. The effective operation of the judiciary is a matter of serious concern, one which may suffer from too. much openness.

It is noteworthy too that the disciplinary procedures for the federal judiciary enacted by Congress provide for confidentiality. See 28 U.S.C. § 372(c)(14). The Senate Committee explained its belief “that the establishment of a confidentiality provision will avoid possible premature injury to the reputation of a judge,” and that specified measures ought to be taken in “protecting the judge from malicious publicity.” See S.Rep. No. 362, 96th Cong.2d Sess. 16 reprinted in 1980 U.S.Code Cong. & Ad. News 4315, 4330. Approval of the rationale employed by the Coalition here would inescapably lead to a holding that the confidentiality provision of the federal statute is also unconstitutional. See also Rule 10J, Judicial Council of the Third Circuit. Because the federal statute is not at issue here, however, we need not pursue discussion of that ramification.

The district court observed that there is no special federal constitutional protection from public criticism given to judges. That is undoubtedly true in the publication context, but nothing in the state constitutional provision bars dissemination of information which the press has received. Indeed, the publication of the Larsen transcript in this case illustrates that point. See also Landmark.

Nevertheless, the state has demonstrated a substantial interest in preserving limited confidentiality. That interest rests not only on the reputation of the judiciary as an institution and judges who have been accused but not proved culpable, but also on the need for flexibility so that the Board may efficiently accomplish its purpose.

In practice, it has been demonstrated that one of the most effective methods of meeting the problem of the unfit judge is to remove him from the bench by voluntary retirement or resignation. Experience has shown that some judges would prefer to resign rather than undergo complete formal hearings. Pennsylvania has concluded that if the confidentiality provisions were not in effect, the accused judge might feel compelled to seek vindication by requiring a hearing.5 In the state’s view the public would lose more than it would gain in this eventuality.

Nor is it a valid objection to say that the confidentiality provision gives more favored treatment to judges than other gov*477ernmental officials. The reality is that only judges are subjected to such disciplinary procedures; rather than being favored they have been singled out for more rigid oversight than their counterparts in the legislative and executive branches.6 See generally Markey, The Delicate Dichotomies of Judicial Ethics, 101 F.R.D. 373.

In summary, even assuming a right of access, an issue we specifically do not decide, determination of the point at which it becomes overriding requires a balancing of the state’s concerns against those of public disclosure. The state’s interests are weighty, its resolution of a serious problem is not unreasonable, and the Coalition’s claim, although presenting arguably desirable alternatives, is not supported by historical antecedents. In these circumstances, the Coalition has failed to demonstrate the unconstitutionality of the state procedure, and the district court’s finding of a First Amendment violation is not warranted.

Ill

The state constitution and the enabling statute both provide that “papers filed with and proceedings before the Board shall be confidential.” The Board’s rules of procedure state that it is regarded as contempt of court “for a person subpoenaed to in any way breach the confidentiality of the investigation. All participants shall conduct themselves so as to maintain the confidentiality of the proceeding.” The subpoena served on the individual plaintiffs contained the following statement: “By direction of the Constitution of Pennsylvania these proceedings are confidential and any disclosure outside the proceedings shall constitute contempt and be actionable.”

When the reporters appeared before the Board they moved to quash the subpoenas but this request was denied. A motion for an expedited appeal to the state supreme court also failed. When plaintiff Biddle appeared before the Board, his counsel remarked

“MR. KLEIN: And it is the Board’s position, I take it, that Mr. Biddle is precluded from disclosing in any way his own testimony or appearance before this Board.
[Board Member]
JUDGE MIRARCHI: Absolutely
[Board Member]
MR. RACKOFF: Absolutely.”

The district court acknowledged that the Board’s mandate was a form of prior restraint but found the order “justified to the extent that the confidentiality rule is justified.” 579 F.Supp. at 217. The court determined that there was a valid state interest in insisting on witness secrecy until the time the Board’s record was filed with the state supreme court.

The claim of the individual plaintiffs in this phase of the case is based on the broader right of free speech, not simply access. Consequently, we must be less deferential to state interests. Any prior restraint on expression comes to the court with a presumption of unconstitutionality.7 Organization for a Better Austin v. Keefe, 402 U.S. 415, 418, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). Therefore, the district court’s equation of the restrictions placed on witnesses with the limitations on access must not be read as applying the same standard in both instances. Analysis of the factors that distinguish the two situations must be observed.

In Landmark, the Supreme Court examined the grounds for confidentiality in the Virginia judicial disciplinary procedures. Assuming their validity, the court nevertheless held the regulation could not affect a newspapers’ right to publish information it had obtained from an independent source. The Court carefully noted that the newspaper was a stranger to the Commis*478sion proceedings. No reporter, employee, or representative of the paper had been subpoenaed by, or appeared before, the Commission. 435 U.S. at 837 n. 10, 98 S.Ct. at 1541 n. 10. The court made clear, therefore, that it was confronted with a restraint on publication.

In Seattle Times, on the other hand, a ban was imposed on the defendant newspaper that sought to disseminate information it had secured through the court’s own discovery process. The trial court issued a protective order enjoining publication of specified data, allowing its use only for purposes of trial. By its terms, the order did not apply to information gained by the defendant through means other than discovery.

The Supreme Court affirmed the trial court’s order noting that the First Amendment does not prohibit all restraints on expression, “freedom of speech does not comprehend the right to speak on any subject at any time.” 104 S.Ct. at 2207. A litigant has no First Amendment right to publish information made available only for purposes of trying his suit, and an important consideration was that the prohibition extended only to information gained through that means. Finally, the Court concluded that privacy considerations and proper functioning of a court’s discovery proceedings to prevent abuse justified the restrictions.

In Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir.1976), we expressed a similar view in dictum, but held that a protective order prohibiting counsel from discussing material in an exhibit attached to a deposition was not permissible. Because the protective order applied to information that counsel had obtained from means other than through the court’s process, we decided, to that extent, the restraint was impermissible. To the same effect, see State of New York v. United States Metals Refining Co., 771 F.2d 796 (3d Cir.1985).

The restriction imposed by the Board here differs from those considered in the preceding cases. Here, unlike Landmark, plaintiffs were participants in the Board’s proceedings. The situation is also unlike Seattle Times in that plaintiffs did not seek to avail themselves of the Board’s processes. The reporters were compelled to appear and testify on a matter that did not affect their personal interests. As counsel agree, the individual plaintiff’s posture is much like that of a grand jury witness.

The scope of the Board’s rule as well as that of the district court’s order which refers to the “substance of any testimony” are not entirely clear. But it is important to recognize that the order was entered in conjunction with the directive requiring the Board to file its record with the state court in every instance in which formal proceedings were conducted. Hence, the district court’s restraint on a witness would last only until that filing.

Under state law the Board will not file the record until and unless it recommends disciplinary action. Therefore, when the Board dismisses charges, its record will never be filed, and the restraint on the witness will be perpetual. The district court did not contemplate a restriction of such a duration.

The curb on disclosing the witness’s testimony applies to information obtained from sources outside as well as inside the Board. In short, a person having any knowledge about the conduct of a judge, favorable or otherwise, might be forever barred from speaking, writing, or publishing it if he testified about that information before the Board. We find no state interest strong enough to justify such a sweeping measure.

Pennsylvania does not impose any such prohibition on witnesses who appear before a grand jury. They are permitted to disclose their own testimony although the traditional veil of secrecy applies to other participants in the process. 42 Pa.Coris.Stat. Ann. § 4549 (1980); In Re November, 1975 Special Investigating Grand Jury, 299 Pa. Super. 539, 445 A.2d 1260 (1982). This procedure is consistent with the federal practice, see Fed.R.Crim.P. 6(e)(2), and its application in judicial disciplinary proceed*479ings would not substantially impair the Board’s function.

To the extent that the confidentiality requirement is intended to prevent improper defamatory publicity, other protection is available. The state constitution provides that testimony before the Board is privileged.8 A witness, therefore, may invoke that privilege as a defense to an action for defamation. If a witness chooses to speak outside the confines of a Board hearing, however, it would seem questionable whether the privilege would apply to that statement. See Hutchinson v. Proxmire, 443 U.S. Ill, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). For that reason, witnesses may find it in their own best interests not to divulge their testimony.

We conclude that to the extent the Board’s regulation and the district court’s order prevent witnesses from disclosing their own testimony, those directives run afoul of the First Amendment as impermissibly broad prior restraints. They are not totally invalid however. The confidentiality requirement is reasonable and may be enforced insofar as it would prevent a person, whether a Board member, employee, or counsel, from disclosing proceedings taking place before the Board. The same limitation applies to witnesses with the exception of their own testimony. The state interest in this respect, as in the grand jury setting, is sufficiently strong to support such a ban.

It follows that although witnesses may, if they choose, disclose their own testimony, they may not reveal that of another witness whom they may hear testify. Nor are they free to disclose the comments of Board members or staff that are overheard during their appearance. Therefore, the Board’s regulation must be read to permit witnesses, at their discretion, to disclose the substance of their testimony before the Board.

Accordingly, the order of the district court will be vacated, and the case will be remanded for entry of a decree in conformity with the views expressed in this opinion.

. “Out of the 3040 complaints filed with the Board in its fourteen-year history, only eighty-four — not quité three percent — have resulted in a Board decision to prefer formal charges." 579 F.Supp. at 195. These complaints include those against members of the minor judiciary as well as those against judges of courts of record.

. Interestingly, the deliberations of the federal Constitutional Convention in 1787 were conducted in secret despite the strong disapproval of Jefferson. Madison who took voluminous notes would not permit their publication during his lifetime. Commentators have questioned whether the constitution in its present form could have been ratified if the proceedings of the convention had been open to the public. See O'Brien, The First Amendment and the Public’s "Right to Know”, 7 Hast.Const.L.Q. 579, 592 (1980).

. See Shaman and Begue, Silence Isn’t Always Golden, 58 Temple L.Q. 755, 756 (1985).

. In his concurring opinion, Justice Stewart commented on the importance of confidentiality in a judicial disciplinary process: "There could hardly be a higher governmental interest than a State’s interest in the quality of its judiciary. Virginia’s derivative interest in maintaining the confidentiality of the proceedings of its Judicial Inquiry and Review Commission seems equally clear. Only such confidentiality, the State has determined, will protect upright judges from unjustified harm and at the same time insure the full and fearless airing in Commission proceedings of every complaint of judicial misconduct.” 435 U.S. at 848-49, 98 S.Ct. at 1546.

. We recognize that a number of states have chosen to allow earlier access despite its inhibiting effect on the encouragement of resignations. That, however, does not demonstrate that Pennsylvania’s evaluation is faulty or that it is unconstitutional.

. We note that in Pennsylvania, proceedings of the lawyers’ disciplinary Board have similar confidentiality provisions. Pa.R.D.E. 402.

. For a provocative discussion of this principle, see Jeffries, Rethinking Prior Restraint, 92 Yale LJ. 409 (1983).

. In Owen v. Mann, 105 Ill.2d 525, 86 Ill.Dec. 507, 475 N.E.2d 886 (1985) the Illinois Supreme Court held that a judge suing an attorney for libel could not obtain a copy of the complaint the lawyer had filed against the judge in disciplinary proceedings. The complaint was found to be subject to the confidentiality provision of the state constitution.