concurring

I concur in Judge Thompson’s opinion for the court. I write separately only to emphasize that in this case the district court affirmed the right of access on the ground of the common law and that, because it did so, it is appropriate for us to commence our review of its decision by examining that ground. Then, because we uphold the order on the basis of the common law, there is no reason for us to reach the First Amendment questions.

It is worth emphasizing once again, however, that there is a significant difference between the common law and constitutional inquiries. While the purposes of both are similar, the common law right of access to court proceedings and documents “is not absolute ... nor is it given the same level of protection accorded constitutional rights.” United States v. Schlette, 842 F.2d 1574, 1582 (9th Cir.1988). See also Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289 , 1293 (9th Cir.1986). The common law right of access is subject to the balancing of interests and we review district court decisions in that regard for abuse of discretion. See Schlette, 842 F.2d at 1576-77, 1581 . The constitutional right of access, however, may be overcome only by showing a compelling interest that no alternative will adequately protect, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 , 102 S.Ct. 2613 , 73 L.Ed.2d 248 (1982); Oregonian Pub. Co. v. United States Dist. Court, 920 F.2d 1462 , 1466 (9th Cir.1990), and we perform our review of decisions on that score under a de novo standard. See Times Mirror Co. v. United States, 873 F.2d 1210, 1212 (9th Cir.1989); see also In re State-Record Co., Inc., 917 F.2d 124 (4th Cir.1990). If the party seeking disclosure relies on both grounds, the withholding of information must survive both — in other words, a party that asserts both grounds for disclosure will prevail if it succeeds on either one.

Generally when courts decide issues involving the press’s right to access they resolve them on First Amendment grounds rather *933 than on the less protective common law basis. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 , 106 S.Ct. 2735 , 92 L.Ed.2d 1 (1986); Globe Newspaper, 457 U.S. at 602 , 102 S.Ct. 2613 ; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 , 100 S.Ct. 2814 , 65 L.Ed.2d 973 (1980); Oregonian, 920 F.2d at 1465-67; Seattle Times v. United States Dist. Court, 845 F.2d 1513 , 1515-19 (9th Cir.1988); Associated Press v. United States Dist. Court, 705 F.2d 1143 , 1147 (9th Cir.1983). Given the need for robust protection of a free press and the critical importance to a democratic society of the public’s right to be fully informed, resolving the constitutional issues directly would ordinarily be the appropriate and sensible course for district courts to take, notwithstanding the general rule that we avoid such questions whenever possible. See Oregon Short Line Railroad Co. v. Department of Revenue Oregon, 139 F.3d 1259, 1264 (9th Cir.1998) (citing Jean v. Nelson, 472 U.S. 846, 854 , 105 S.Ct. 2992 , 86 L.Ed.2d 664 (1985)). In this case, however, because we affirm an order that is based on the common law, there is no cause for us to consider the constitutional questions on appeal.