State ex rel. Dayton Newspapers, Inc. v. Phillips (46 Ohio St. 2d 457, 1976)

O’Neill, C. J.

The question to be determined by this court is: Shall'a permanent writ be granted ?

Two issues require resolution at. the threshold in the determination of this cause. The first of these is whether an action in prohibition is the appropriate remedy for the relief sought.

On authority of State, ex rel. Beacon Journal Publishing Co., v. Kainrad (1976), 46 Ohio St. 2d 349, and State, ex rel. Northern Ohio Telephone Co., v. Winter (1970), 23 Ohio St. 2d 6, 260 N. E. 2d 827, prohibition lies.

. • "The second threshold issue is whether .relator has standing' to .maintain the action.

Standing of CBS,. Inc., an owner: and operator of á television and radio network, to mandamus a' district court judge to vacate an order directing “* * * all counsel and court personnel, all parties concerned with * * * .[the] litigation * * * their relatives, close friends, and associates * * * to refrain from discussing in any manner whatsoever * * * [the pending cases] with members of the news media or the public,” was raised in CBS, Inc., v. Young (C. A. 6, 1975), 522 F. 2d 234.

Rejecting the argument that CBS lacked standing to apply for mandamus, t'he Circuit Court of Appeals reasoned as follows, at pages 237, 238:

“The doctrine of standing is well established and has been employed in-many instances as a device to -deny litigants access to the courts. The. Supreme Court in Data Processing Service v. Camp, 397 U. S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), enunciated the requirements for a party to have standing. The first requirement, as the Court stated, is that the plaintiff must allege that the challenged action has caused him injury in fact, economic or otherwise. That petitioner has satisfied this prong of the test is clear from the petition and from the face of the oi-dor itself, as already pointed out. The second requirement as set forth in Data Processing is that ‘the interest sought'to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee.-in question.’ This aspect of the Data Processing test is also satisfied here. This is true because the order of May 6, in denying:to petitioner -access to potential sources of information, at least arguably impairs rights guaranteed to the petitioner .by the First Amendment. We are not persuaded by the argument that petitioner lacks- standing because it is not a party to the civil-litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it. This was recognized by the Supreme Court in, Branzburg v. Hayes, 408 U. S. 665, 681, 92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626 (1972), where the court stated: ‘Without some protection for seeking out the news, freedom of the press could be eviscerated.’ News gathering thus qualifies for First Amendment protection. See Branzburg at 681 and 707, 92 S. Ct. 2646.

“Thus, though CBS was not named in the order, cf. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 95 S. Ct. 1, 42 L. Ed. 2d 17 (1974), nevertheless, as applied to CBS, this order affected its constitutionally guaranteed right as a member of the press to gather news.”

Adopting the foregoing reasoning and applying it to the instant cause, this court holds that relator has standing to maintain the present action.

This case deals with the right of a newspaper to observe and publish a report of what happens at a judicial proceeding in a criminal case.

A court order which denies that right has the force of law. There can be no dispute about the fact that such an order abridges the freedom of the press. Such abridgment is prohibited by the First Amendment to the Constitution of the United States and by Section 11 of Article I of the Ohio Constitution.

Can such a court order be constitutionally upheld on the ground that its issuance is required to assure the defendant, in the criminal proceedings, an impartial jury in his later trial on felony charges?

The central and controlling issue in the instant case may be stated thus:

When the trial court, in a sensational kidnapping and murder ease, has before it:

1. a motion for change of venue by a defendant,

2. motions to suppress evidence by the defendant,

3. a motion to close the courtroom, exclude the public and bar the press from observing and reporting and publishing anything which may transpire in a court-room hearing on the motions to suppress, and is faced with the possibility that the publicity generated by a pretrial hearing on the motions to suppress may prejudice potential jurors and .thus jeopardize the securing of an impartial jury in the defendant’s trial to be held later, what action should the court take to guarantee the defendant an impartial jury and preserve unabridged the freedom of the press?

The answer is simple.

(1) The court should overrule the motion which requests the court to close the courtroom, exclude the public and bar the press during the hearing on the motions to suppress because the First Amendment to the Constitution of the United States and Section 11 of Article I of the Ohio Constitution prohibit any abridgment of the.freedom of the press.

(2) The court should hold a public hearing on the motions to suppress for the same reason.

i31 The court, after completion of the public hearing on the motions to suppress, should rule on the defendant’s motion for change of venue. That ruling should be macF after the hearing or after a final decision on any appeal from a ruling on the motions to suppress or at trial after juror voir dire but before the administration of the jurors ’ oath. R. C. 2901.12(1).

If the judge concludes that because of the publicit'generated by the hearing on the motions to suppress it appears that a fair and impartial trial can not be held in Montgomery County, he should grant the venue motion and transfer the case to a county unaffected by the publicity. R. C. 2901.12(1); State, ex rel. Beacon Journal Publishing Co., v. Kainrad, supra; Irvin v. Dowd (1961), 366 U. S. 717; Rideau v. Louisiana (1963), 373 U. S. 723. If he concludes that a fair and impartial trial can be held in Montgomery County, he should overrule the motion for a change of venue.

■ ': .Although: the- United States Supreme .Court: has not decided the'specific question "-which the instant case presents to this court, the principles of law-to.be applied by the trial court with regard to the central issue which this case'presents'-are:. succinctly feet forth, in Sheppard v. Maxwell (1966), 384.U. S. 333, by Justice Clark who delivered the opinion for the court. After listing certain actions which the trial judge should have taken to have assured Sheppard a fair trial, Justice Clark wrote the following at pages 362 and 363: "

“* * * Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial hews prior t'o 'trial toill prevent a fair trial, the judge should continue the case until the threat abates, or transfer it'to another county not so - permeated with publicity. *■” (Emphasis added.)

• ‘ That rule is provided by Ohio statute. R. C. 2901.12 (I) reads:

“Notwithstanding any other requirement for the place of trial, venue may‘be changed‘upon motion-of-* *’* the defense, * * to amy court having jurisdiction' of the subject matter ■ outside the county in which trial would otherwise be--held,-when it appears that a fair and'impartial trial cannot be held in the jurisdiction in which trial would otherwise be held * * V’ (Emphasis added.)

■ Ohio Criminal ■ Rule 18(B) contains a similar provision. ■

In Irvin v. Dowd, supra (366 U. S. 717),. the United States Supreme Court considered a similar statute.'That court interpreted the statute,- upheld its constitutionality, applied it and vacated the judgment' of the federal Court of Appeals and District Court and remanded the case to the latter, and held the judgment of the state trial court void for refusing to grant the defendant’s motion for a Second'change of venue made necessary by intense prejudicial pretrial publicity, even though , the statute did not specifically provide for a second change of venue.

The rule has been applied in Ohio with success.

In State v. Hoffman (Court of Appeals for Lucas County, No. 7551, unreported), decided August 28, 1975, appeal to the Supreme Court dismissed (No. 75-1033) January 16, 1976, an Ohio trial court took action to grant two changes of venue, on the ground of pretrial prejudicial publicity, to two different counties in a sensational murder case and by that action guaranteed the defendant his Sixth Amendment right to an impartial jury and, at the same time, preserved inviolate the First Amendment prohibition against abridgment of the freedom of the press.

In State v. Hoffman, supra, the defendant was charged and convicted of shooting his mother and father and setting lire to their bodies. The decedents were described in the press as “socially prominent” citizens. Lake County, in which the crime was committed, adjoins Cuyahoga County where there are two large metropolitan daily newspapers, each having broad circulation in Lake County. There was extensive publicity in both the Cuyahoga County papers and the Lake County papers following the crime. Defendant moved for a change of venue, which was granted to Trumbull- County. During the trial in that county the defendant’s wife purportedly attempted suicide and was confined to a Cleveland hospital. That incident received widespread publicity. There was a motion for a mistrial, on the ground of prejudicial publicity, which was denied. Later, a mistrial was granted because of a prejudicial unresponsive answer by a state’s witness to a question by the prosecutor. The case was returned to Lake County. The defendant- urged that the law ¡required that the case be returned to Trumbull County for trial. That motion was denied. A defense motion for a change of venue was then made and granted. The ease was transferred to Lucas County and tried in Toledo. The Lake County judge was assigned by the Chief Justice of the Supreme Court to try the case. The defendant whs convicted and on appeal to the Court of Appeals, for Lucas County no issue "was raised concerning the denihl of a fair trial by reason of prejudicial publicity. The defendant was represented by most competent aiid experienced counsel. A motion for leave to appeal to the Supreme Court was denied, but there was no assignment of error in that motion on the grounds of denial of a fair trial due to prejudicial publicity.

That case represents a clear demonstration that under the provisions of Ohio law there is no reason for this state to be faced with the troublesome issues of the instant case. The large geographical area of Ohio, the large number of separate judicial, trial jurisdictions, the limited intensive circulation of newspapers and the limited in-depth area coverage of television and radio stations, the law providing for change of venue to assure a fair and impartial trial, R. C. 2901.12(1), gives the trial judge adequate power to protect the defendant’s constitutional right to an impartial jury, and, at the same time, to preserve inviolate the constitutional right of freedom of the press for the benefit of the public.

When there is a conflict between the First and the Sixth Amendment rights, as in the instant case, the trial court is required to act to resolve that conflict by protecting both the First and the Sixth Amendment rights when, as here, that can be done in a reasonable and lawful way. State, ex rel. Beacon Journal Publishing Co., v. Kainrad, supra.

■ The trial judge in the instant case gave little consideration to the use of a change of venue. In his opinion lie said:

“* * * The defendant has already requested his change of venue, which the court now has under advisement.. However, the court is of the opinion, that the defendant-has a right to be tried in the locale where the crime occurred, and likewise the public has a right to have-such case tried .in that locale.”

The error in that position is apparent. First, the defendant has waived his right to be tried in the locale where the crime occurred bv his motion for a change of venue. Second, it is doubtful that the public has any constitutional right to have such a case “tried in that locale;” In' any event, the Supreme Court of the United States has made it clear that it is error for the trial court to deny a’motion for change of venue where prejudicial news prior to trial will prevent a fair trial. Irvin v. Dowd, supra (366 U. S. 717); Rideau v. Louisiana, supra (373 U. S. 723); Sheppard v. Maxwell, supra (384 U. S. 333). See dissenting’opinion in Murphy v. Florida (1975), 421 U. S. 794, 44 L. Ed. 2d 589; Any right the public has to have such a case “tried'in that locale” must yield to the constitutional right of the de-f fendant to a fair trial and the constitutionally protected freedom of the press. :

Celebkezze, J., in his dissenting opinion,' in thé same manner dismisses change of venue as an alternative by which the right of a fair trial and freedom of the press can be protected. The opinion states:

“We do not believe that the interests of justice counter nance the waiver of one constitutional right in order to secure another.” :

The defendant in the instant case moved for a change of venue prior to making his motions to suppress evidence; The statute (R.: C. 2901.12 [I]) authorizes sueh a motion for a change in venue. The trial court has that motioii under advisement. By that motion, the defendant waived his right to be tried in the locale where the crime was coni-i mitted. The defendant cannot be heard to complain if his own motion is granted. The Supreme Court of the United States has consistently placed its stamp of approval upon change of venue as a proper alternative for a trial court to use to avoid a denial of fair trial by reason of prejudicial publicity. Irvin v. Dowd, supra (366 U. S. 717); Rideau v. Louisiana, supra (373 U. S. 723); Sheppard v. Maxwell, supra (384 U. S. 333).

The only other reason asserted by Celebfezze,' J., in his dissenting opinion, for not allowing a chang'd of venue to assure a fair trial is stated thus: ' •

“Finally, a change of venue presents numerous costly practical problems such as transportation of witnesses. to and' from the trial, and transportation of jurors to view the situs of the crime.” ■

When the cost of transporting witnesses to and from the trial and the cost of one trip by jurors to view the situs of the kidnapping or murder is weighed against the constitutional guarantee to the defendant of a right of fair trial > ánd the constitutional prohibition against abridgment of freedom of the press, there is no valid reason to deny the; chánge. of venue when it appears that a fair and impartial trial cannot be held because prejudicial news prior to trial will prevent it. Irvin v. Dowd, supra; Sheppard v. Maxwell, supra, at pages 362 and 363.

i ■ There'is: ho .reason for a trial court iñ this state to feel compelled, as the trial .court in the instant: case did, to issue an:order which abridges the freedom of the press by barring a .hews report oh what is to transpire in a judicial hearing.

There aré.88 separate county judicial districts in Ohio, each'with its own court of general jurisdiction. No.newspaper has an intensive circulation area that extends .beyond the counties that are contiguous to the county in which the newspaper is published. The in-depth coverage area of the most powerful television and radio stations does not extend to'more than 30 percent of the counties .of the state. One of the principal purposes of R. C. 2901.12(f) arid ..Criminal-Rule 18(B) is to provide for a change, of venue in a criminal case where prejudicial publicity makes it appear that' a fair and impartial trial cannot be hel.d- in. the jurisdiction in which trial.Would otherwise be held.. •• . ; '

1'■ •• Change of venue has been used for that purpose and has served that purpose. State v. Hoffman, supra.

a ^The -polestaf in: this case is the-constitutional-.'provisions' that the freedom and liberty of the press shall not be abridged or restrained by any law: 1 ¡ ■ • : ■. -

A hearing on a motion to suppress evidence is a sensitive and extremely important proceeding. The issues in-.sueh.ia hearing are often.the. competence, efficiency/judg-i ment,-courage,.! and. behavior .of/the - police; the .prosecutor j the defense -.Counsel, the- court- employees, and' the-judge; Because of-corruption or malice, a secret judicial\pmmedj ing may--be'- and has-been, used to .railroad accused, personé charged .with , Crime. Secret proceedings-:may .be Used to cover up for- ’incompetent and corrupt police/ prosecutors and-judges,-- and-the influence of . corrupt politicians ‘on the judicial ay stem. The public and. the victims---of 'Crime aré entitled -to know what is going on. The public-, is entitled to- know what is háppening to ..the accused.'- There? is.-nd other way-the busy ordinary citizen can evalúaté how-the judicial system/is administéring justice except-through-the media/he’reads; hears-or watches.' A free-press.is the only guarantee a citizen has of his right to'know'what, is going on-in his gwefriment. '• -.rf”’

' It-i-S1 alreády settled- law that freedom of the ¡presé includes '■ the right to'gather,- writé~and publish '-the .news■ and that"'’?reporters * * * aré-plainly free to report -what', ever occurs’in open court through their respective1 media..’? Estes v. Texas (1965), 381 U. S. 532, 541, 542. See, also Times-Picayune Pub. Corp. v. Schulingkamp (1974), 419 U. S. 1301, 1307, 42 L. Ed. 2d 17, 22.

In Branzburg v. Hayes (1972), 408 U. S. 665, Justice White-;’ Who dfelivéred the' opinion for the' court, said,, .at pages 681 and’707: " T' '■

/’■ “Wé TTO'iffit question the significance of/fre'e speech; presé/ or'aséerábly' to the co'iintry’s ‘welfare. ‘'tÑotf. iS'M-.&Ug*geSted'ihat‘ news -gathering d'oes 'not- gualify-hfor- ■ First Amendment' protection; loithout some' protection'--fon 'séelc* ihg out-'the'news, freedom of the press cotdd'b'é eviscerated', * * * ■ ■ M!“ /V :

“Finally/ as' we have 'earlier indicated, 'hkws'rgat-hering is‘not without its First Amendment'proteciiohs'-'-1^* */? (Emphasis1 added.) ' ■’■' 1 ’ ' ' ¡ ■:

At page's’ ¡727 and 728, Justice Stewart, in. liis dissen-L ing opinion', stated: - •• '. : :;-s-\

“A corollary of the right to publish 'wiust'b'e-'ihe right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. We have, therefore, recognized that there is a right to publish without prior governmental approval [citations omitted], and a right to receive printed matter [citation omitted].

“No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut of at its source, for without freedom to acquire information, the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.” (Emphasis added.)

The finding of the trial court upon which its order was -based is stated as follows:

“The court finds that the intense publicity referred to at the beginning of this opinion has created a clear and present danger of serious and imminent threat to the administration of justice and that in order to prevent the possibility of further prejudicial pretrial publicity, which might affect the right of the defendant to a fair and impartial trial, the motion of the defendant must be and hereby is SUSTAINED.”

If the trial court is correct in that portion of its finding which states “that the intense publicity referred to at the beginning of this opinion has created ,a clear and present danger of serious and imminent threat to the administration of justice,” then the court should-have allowed the defendant’s motion for a change of venue. Sheppard v. Maxwell, supra; Irvin v. Dowd, supra; Rideau v. Louisiana, supra; State, ex rel. Beacon Journal Publishing Co., v. Kainrad, supra.

Under Ohio law, where a motion to change venue on the ground of pretrial prejudicial publicity has been made pi’ior to the making of a motion to suppress evidence, there is no reason for a trial court to be called upon to draw a speculative conclusion that there will be prejudicial publicity emanating from a future courtroom hearing on tlm runtions to suppress evidence and to presume that such publicity will create a clear and present danger of serious and imminent threat to the administration of justice and, based on that speculation and presumption, to order the public barred and the press excluded from the hearing, thereby abridging the freedom of the press which is for the benefit of the public. Such a speculative and presumptive judgment by the trial court is an impossible one to make in most cases. R. C. 2901.12(1) was designed to relieve tidal judges from such a dilemma and to assure that in this state freedom of the press shall not be abridged and defendants shall be guaranteed a fair trial before an impartial jury. State, ex rel. Beacon Journal Publishing Co., v. Kainrad, supra; Sheppard v. Maxwell, supra; Irvin v. Dowd, supra; Rideau v. Louisiana, supra; State v. Hoffman, supra.

The writ of prohibition should be allowed.

Writ allowed.

Herbert, Stern, W. Brown and P. Brown, JJ., concur.

Corrigan and Ceuebrezze, JJ., dissent.

The Sixth Amendment to the Constitution of the United States reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed * '*•

Stern, J.,

concurring. I concur in the opinion of the majority, which reaffirms principles fundamental to our society and our system of government. We cherish few values so highly as the unfettered public commerce in ideas and information ensured by the freedoms of press and speech. We guard no other right more jealously than that of an accused to a trial by a fair and impartial jury. It hardly needs repetition that “free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. ’ ’ Bridges v. California (1941), 314 U. S. 252, 260. My agreement with the majority is that I believe these policies may be accommodated, consistent with the orderly administration of justice without the restrictions upon public information imposed herein, and without closing the courthouse doors.

The fundamental-.task of any trial judge is, of course, to afford-a fair trial, ¡orderly and free of bias or prejudice; before a jury willing-and able to render a. just verdict based upon evidence produced in- court. The criminal justice system-contains numerous..-mechanisms for assuring that, our trials conform as closely as possible to that ideal. ■

■ In the great majority .of criminal trials, there is only a minimum of public awareness or interest. Certainly public reliance- upon the. established procedures is the norm in trials of even the.most serious offenses, and so too, to an extent, is public indifference. Equally certain is the .fact that exceptional cases do. occur which so arouse public interest and emotion that special, measures must be taken to assure , a fair and orderly trial. Due process applies ,to those exceptional cases, as to others, to require that “the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of pirivate talk or public print.” Patterson v. Colorado (1907), 205 U. S. 454, 462.

. ,In a\sizeable urban community such as Dayton-, the possibility is small that public opinion concerning a case might be so dominated by fixed opinions- of a defendant’s guilt as to .make it improbable that .an impartial jury can be selected. Even,in a publicized ease, many citizens are likely, to have paid scant attention to the case and many will be able to lay aside their preconceived notions and to render a verdict based on the evidence presented in court. . On the other hand, the pervasive and ubiquitous influence of modern forms of-communication pose clear dangers of inflaming or prejudicing public, opinion, or of subverting the rights, of a. defendant by revealing “evidence” which may never be introduced at trial and which may be doubly damaging because it is subject to none, of the judicial tests for reliability. The nature of the pretrial publicity in a case may involve such a probability of prejudice that an inherent lack of. due process must be presumed. Estes v. Texas (1965), 381 U. S. 532; Rideau v. Louisiana (1963), 373 U. S. 723; Irvin v. Dowd (1961), 366 U. S. 717. But the judge’s role in preventing such a deprivation of due process is hardly new, for his task remains as it has ever been, to assure the reality of a fair trial. The particular difficulty faced by a trial court in dealing with pretrial publicity is that such publicity occurs outside the judicial system, in those organs of public news and information most necessary to a free society.

The vitality of our democratic institutions depends in the long run upon broad public support and awareness of the purposes and operations of those institutions. The correction of judicial abuses and the approval of judicial wisdom and integrity depend alike upon the accessibility of the courts to public scrutiny. It is true that highly publicized cases are infrequent, and that transcripts can eventually be made available even in those cases. But as a practical matter, a transcript of a proceeding'is a sterile substitute for observing the actual conduct of a hearing, as reviewing courts are well aware. Actual observation of the demeanor, voice, and gestures of the participants in a hearing must be as informative to press and public as those same matters are to juries during trial. Furthermore, as Mr. Justice Black pointed out in discussing contempt proceedings with regard to' out-of-court publications pertaining to a pending case: “It must be recognized that public interest is much more likely tó be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pendency of a case, the judgments below therefore produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height. * * * It is therefore the controversies that command most interest that the decisions below would remove from the arena of public discussion.” Bridges, supra, at pages 268-69. We most strongly doubt the advisability .of any ruling which closes the doors upon those matters in which public interest is highest.

The Common Pleas Court recognized the strong public policy favoring open courts and public trials, and permitted the, closing of a hearing upon motions to suppress the evidence only because it found a clear and present danger to the administration of justice. By its terms, this seems a very strict standard. Yet, it is difficult to avoid the conclusion that the actual effect of that standard is that in any publicized case, all hearings upon motions to suppress should be in camera. All such cases will involve the possibility of inadmissible evidence, for admissibility is the issue in every hearing upon a motion to suppress. All such hearings are scheduled shortly before trial. This case differs from other prosecutions only in the extent of the pretrial publicity. The actual effect of the court’s holding thus seems to be that a suppression hearing should be closed in any highly publicized case.

Even if the test set out by the court does mean something other than that all such hearings should be closed, that test nonetheless fails, it seems to me, because it provides little enlightenment as to what course the trial judge should follow in assuring a fair trial of a highly publicized prosecution. It does not inform us of the actual benefits of an exclusion order, nor is it very useful in determining when other, more familiar forms of judicial protective orders should be employed. The court did mention alternatives to exclusion orders, such as voir dire, continuances, sequestration, and change of venue, but its dismissal of each only reinforces- the conclusion that an exclusion order such as the present one, novel though it may be, would, by its test, be imposed as a matter of course before any of those protective orders are made.

This seems to me to give too much, regard to the convenience of the courts, and too little to the public’s right to information..

As the United States Supreme Court stated in Pennekamp v. Florida (1946), 328 U. S. 331, 347:

“* * # Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. ’ ’

Our inquiry should be whether the limitations upon freedom of discussion specifically intended by this exclusion order are in fact necessitated by an “essential requirer ment of the fair and orderly administration of justice.” Thus, even if we agree that “a clear and present danger to the administration of justice” exists, we should go on to inquire whether that threat may be dissipated by means which do not interfere with freedom of discussion.

The finding of the trial court that a clear and present danger exists was based upon the extensive press coverage of this dramatic and vicious crime. Certainly the coverage by the media in this ease was so extensive as to suggest the need to guard against public prejudice. Yet it is important to note that this coverage was exclusively factual and objective. There were no editorials demanding vengeance or asserting the defendants’ guilt. The descriptions of the defendants and their backgrounds were equally objective. In fact, some of the publicity took the form of a squabble between a newspaper and’ a TV station as to which media had been more scrupulous in respecting the defendants’ rights.

The news accounts did reveal information which might well be prejudicial, such as the defendants’ past criminal records, various admissions to the police, accounts of defendants’ character and background, and a report that one defendant failed a police lie detector test. All this information concerns matters which might predispose prospective jurors to a fixed opinion of guilt, and most of it would be excluded at trial. But the newspaper reports of that information does not suggest hostility or deep prejudice toward the defendants.

The rationale for closing the hearings upon the motion to suppress is that this publicity, which had been intense and at times prejudicial, created a serious and imminent threat to a fair trial. Granting that to be quite possible does not, however, necessarily justify closing the hearing. Whatever actual prejudice has occurred cannot be undone, except possibly by a continuance, nor does closing the hearing in any way restrict the press from repeating that information, from indulging in speculation as to the results of the hearing, or from publicizing whatever information may chance to leak out, however garbled. It is not so clear that the gossip spawned by keeping these matters secret might not be as damaging as more factually based reports.

The real theory underlying the exclusion order is that actual news coverage of the case will be minimized in the period before trial by reducing the amount of information available to the press, and that some material which the press has not uncovered will more likely remain secret. That theory is probably reasonable, but it remains speculative. We cannot be sure how the press will treat these stories. In other states, voluntary standards of reporting have been adopted by members of the print and electronic media. There is no apparent reason why the possibility of voluntary limitations upon reporting the hearing could not have been explored here. In fact, the prosecutor reportedly supported such an agreement. This court has no way of knowing whether the Dayton news media would have agreed to appropriate voluntary standards with regard to prejudicial information; but, if so, such an agreement would have been a less restrictive and more effective alternative to an exclusionary order, and one which could presumably be enforced if necessary by a contempt citation.

Disregarding that possibility, which is not urged by relator, and accepting arguendo that the previous publicity was not itself-sufficient to prevent a fair trial, but that the added publicity of matters presented in the suppression hearing: might very possibly' tip the scales, there are other methods available to the court to reduce the release of prejudieial information—methods less restrictive upom free discussion. - • ■

■ - A continuance might he ■ granted, and I believe that a continuance to preserve a -defendant?s 'right 'to an impartial jury, untainted by prejudicial pretrial publicity, would be a- reasonable grounds for extending the time for trial under R. C. 2945.72. ;

A change of venue is another constitutionally acceptable and practical alternative. The contrary view ignores the-fact that in this case a motion- for a change of'venue was pending at the time the motions to suppress were made. In any event,- Section 10 of Article I’of the- Ohio Constitution, which allows'the'accused “* * „f-'a-speedy public-trial by an -impartial jury of the county in which the offense is alleged to have been committed"*: * .*'•” does not create a right "of venue exclusively-for the defendant. A change-of venue may be granted, to secure an' impartial jury, upon motion of the prosecution or upon the court’s own motion. R. -C. 2901.12(1) and Crim. R.-18. If a change of venue must be-made in order to permit-the trial to be “public” and the jury to be “impartial,” then that is plainly sufficient'to move a trial from the county. Of course, changes of venue cause incbnveniencé for-the judiciary and prosecutorial staff as well as defendants.; but the propriety of such a change is "well-established' by statute and rule, and a change of venue is both more effective in preventing prejudice than any exclusion-order and,-in some cases', is constitutionally required. Rideau v. Louisiana, supra (373 U. S. 723). If we recognise, as we must, that modern communication media pose', problems for -fair trials different from those in our country’s early days, we should also recognize that the speed and ease- of modern transportation greatly reduces the burden imposed by moving a trial to another county. Where, as here, the defendant requests a change of venue and the court finds a clear danger of prejudice from pretrial publicity, there appears little reason why the trial court should struggle to keep the trial in the county, when to do so he must refuse a defendant’s motion for a change and prevent the residents of the county from actually being informed about one of the crucial stages of the trial process. The public, the press, and the defendant all stand to lose much and gain little from, such a decision.

The concern that such devices as change of venue, voir dire, sequestration, and continuance are imperfect and inconvenient devices to assure fair trials is, of course, valid. To assure the reality of a fair trial requires an impartial jury, and no technical device or test can guarantee that state of mind, i. e., that “mental attitude of appropriate indifference.” (Mr. Chief Justice Hughes in United States v. Wood (1936), 299 U. S. 123, 145.) To a great extent, our legal system relies upon the likelihood that few are so influenced by pretrial information, if indeed they are aware of it, that they cannot render a fair verdict based upon the evidence produced in court. This is perhaps a generous view of human nature, but it is a view which our experience with juries has seemed to confirm, and a view upon which the integrity of our judicial system relies. Experience also has shown us some of the limitations and failings of human nature which must be given their due. We cannot, for example, expect jurors to be impartial who are aware that a defendant has confessed to a crime, even if the confession is excluded and they are instructed to disregard it. Rideau v. Louisiana, supra; Irvin v. Dowd, supra. See Padawer-Singer & Barton, The Impact of Pretrial Publicity on Jurors’ Verdicts, in Simon, The Jury System in America, at pages 125-139.

But those dangers can be dealt with by other means than by closing a crucial stage of judicial proceedings, in those cases in which public interest and concern are greatest. In any highly publicized case, care must be taken by the trial judge to assure a fair trial, and some adjustments of judicial procedures will often bo necessary. No trial judge would now be heard to say as did the judge presiding in the first Sheppard case, “ ‘How would you ever, in any jury, avoid that kind of thing?’ ” Sheppard v. Maxwell (1966), 384 U. S. 333, 349. Our efforts should now be directed to using those forms of orderly administration which permit the widest scope for freedom of discussion and freedom of information. Closing the courthouse doors and excluding the press and the public, if it is ever to be justified solely to prevent possible publicity, should be a matter of strictest necessity, for free access to the traditionally public proceedings of our courts and tribunals is too fundamental a value to be sacrificed if an alternative exists. There are such alternatives available to this trial court, and for that reason I believe the hearing beloAV need not be closed. Accordingly, I concur.

Corrigan, J.,

dissenting.

I.

We are importuned by the Dayton Newspapers, Inc., in this original action in this court to adhibit the extraordinary writ of prohibition against the order of a judge of a Common Pleas Court to conduct certain pretrial proceedings in a criminal case in private. The order necessarily excludes the press. They protest that such an order violates the constitutional guarantee of freedom of the press.

The questions presented haA7e provoked a pyrotechnics of extended rhetoric in connection Avith the decision of the court that tends to point up the importance of the case. Accordingly, I am constrained to succinctly state my reasons for dissenting from the majority.

The paramount concern of the judge in the trial court is the constitutional right of Herman Lee Moore, American citizen, to receive a speedy and public trial before an impartial jury in Montgomery County on the indictment charging him with kidnapping, extortion and aggravated murder.

It Avas this concern that motivated the judge to enter a protective order that hearings on defendant’s pretrial motions to suppress be held in camera. The judge said: “The court finds that the intense publicity referred to at the beginning of this opinion has created a clear and present danger of a serious and imminent threat to the administration, of justice and that in order to prevent the-possibility of further prejudicial pretrial publicity, which, might affect the right of the defendant to a fair and impartial trial, the motion of defendant [to hold all pretrial hearings in his case in camera] must be and hereby is. SUSTAINED.”

Based upon what was presented to him in the hearing on said motion, the trial judge exercised his best judgment to protect the constitutional right of defendant to an impartial jury in his trial on the indictment. His right to a. fair trial before an impartial jury is not superseded by the constitutional right of the relator herein, Dayton Newspapers, Inc., to the First Amendment freedom of the press-in pretrial proceedings. The United States Constitution does not declare the right of freedom of the press to be-superior to defendant’s Sixth Amendment right to a speedy and public trial before an impartial jury of the district, wherein the crime has been committed. Nor does that Constitution state that any declared right has a preferred position. To so hold that freedom of the press is a preferred right would be to relegate Moore’s right to a fair trial before an impartial jury to a deferred position as a second-class right. Such a view would be constitutionally untenable. Moore’s right truly belongs in the catalog of indispensable freedoms.

It may be said that publicity ordinarily serves to assure a fair trial, but in this instance the trial judge, in his effort to guarantee this right to defendant, seeks to insulate prospective jurors from reading about evidence, presented on pretrial motions to suppress, which may be inadmissible at the trial but which may arouse intense feelings in the community about the crimes charged against defendant. If, before a trial, the right to publish inadmissible evidence is inseparable from our freedoms, then the trend of trials to turn on evidence and influence beyond the control of the judge may be expected to continue. We certainly do not need another Sam Sheppard’ type perversion of justice.

In sensational cases like this the fact emerges that the court faces grave problems in making good the constitutional assurance of fair trial before an impartial jury except with the cooperation of the’ agencies that make and convey public opinion. If these agencies do not respect the judicial process sufficiently to forego scooping it, pressuring 4, or circumventing it, then a fair trial before an impartial jury for an individual charged with a crime may in actually descend to a second-class constitutional right.

But, the Dayton Newspapers, Inc., a corporation for profit, says in effect that we and we alone should make the decisions as to what and when to publish; that this is our Eirst Amendment right as to freedom of the press.

II.

The Constitution of Ohio provides in Section 11 of Article I:

“* * '* and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”

It speaks, too, about an impartial jury in Section 10, Article I, in part:

“* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * * to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in 'his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * ”

In connection with the latter, this court stated many years ago in Cooper v. State (1865), 16 Ohio St. 328, 331, that “ [t]he right of the accused to an impartial jury cannot be abridged.”

A few years later it was held in Frazier v. State (1873), 23 Ohio St. 551, 552, that:

“The constitution guaranties [sic] to the accused a ‘trial by an impartial jury.’ This right cannot be impaired. But what will constitute the abridgment of the right is, of necessity, a judicial question.”

That question was developed a little more in Baxter v. State (1914), 91 Ohio St. 167, 169:

“While the question of a change of venue in a criminal case is within the. sound discretion of the trial court, yet it is a substantial right of the defendant to be tried by a fair and impartial jury.”

I therefore dissent from the syllabus, opinion and judgment of the majority.

Celebrezze, J.,

dissenting. The present appeal presents issues striking at the very core of our judicial system. It involves the interplay between the First Amendment right of the media to freedom of the press and the Sixth and Fourteenth Amendment rights of an accused criminal to a fair trial and due process of law. Because, in my view, the opinion expressing the conclusions of a majority of this court, authored by O’Neill, C. J., fails to accurately and completely address any one of the several serious issues raised by this appeal, I feel compelled to submit the following lengthy dissent. I shall adopt an unusual format as the vehicle by which to express my views, because the traditional method utilized in writing a dissenting opinion may not adequately exacerbate the differences in approach to the problem I perceive to be most relevant in arriving at a resolution of these issues. Accordingly, I submit the following dissent written as if it were a majority opinion.

One further introductory comment is in order. In my view, the following approach to resolution of the instant cause does not impermissibly restrain freedom of the press while protecting both the rights of a defendant to a fair trial and due process of law and the duty of a trial court to ensure that such occurs. It does, however, repose discretion in the trial court to order that pretrial hearings be held in camera in those rare instances when the circumstances command, and permits review thereof in this court as to the correctness of any such order. A balance is thus struck between the competing constitutional rights here involved. Such a balance is constitutionally required, for no one of the freedoms secured by the Bill of Rights should be favored over another. The effect of the majority view, I fear, is to prefer the First Amendment at the expense of justice and the Sixth and Fourteenth Amendments. With these preliminary comments, I offer the following syllabus paragraphs, statement of the case and opinion as my conception of the proper majority view in this case.

1. The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. (State, ex rel. Lehmann, v. Cmich, 23 Ohio St. 2d 11, followed.)

2. A party has standing if, in either an individual or representative capacity, he has some real interest in the subject matter of the dispute.

3. Where a trial court issues an order excluding the various media representatives, as a part of fhe general public, from attendance at a judicial proceeding, those media representatives, by virtue of the First Amendment Freedom of the Press Clause, possess the requisite standing to contest such order by way of an original action in prohibition.

4. Section 16, Article I of the Ohio Constitution does not confer upon the public or the media the absolute right to be present at every judicial proceeding, but, rather, provides all persons with a forum in which to litigate their legal rights in an orderly manner.

5. The right to a public trial does not belong solely to an accused; it belongs as well to the general public, subject to exception in extraordinary circumstances in order to preserve the fair administration of justice.

6. Freedom of the press and the right to trial by an impartial jury are both fundamental to our system of government, and should be given the maximum possible protection.

7. It is the function of the court to protect the constitutional rights of an accused, and not place him in a position where he must waive his right to a jury trial or request a change of venue in order to avoid the risk of being tried by jurors who may have read, viewed or heard testimony taken at a recent pretrial hearing and ultimately determined to be inadmissible at trial.

8. In a pretrial hearing on a motion to suppress evidence, the defendant may move'that all or any part of the hearing be closed to the general public, including representatives of the media, on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial, and is therefore likely to interfere with his constitutional right to a fair trial by an impartial tribunal.

9. When the circumstances clearly establish that the judicial process will be subverted by an open pretrial hearing, appropriate action should be taken by a couri to preserve the integrity and fairness of such judicial process. In this regard, a trial court may consider ordering'the general public, including media represen I atives, excluded from attendance at such pretrial hearing, but such order should issue only in extraordinary circumstances upon a clear showing of a serious and imminent threat to the administration of justice.

On or about September 23,1975, Lester Emoff, a prominent Dayton businessman, was ■ kidnapped and held for ransom. His abductor(s) left a ransom note at the home of his son, Robert Emoff, demanding $400,000 to secure his release, and to prevent the physical destruction of his business premises. Following the instructions of the abductor (s), Mr. Emoff’s family paid the $400,000 as ordered. The body of Mr. Emoff was subsequently located bearing indications that he had been brutally murdered.

On or about September 26, 1975, Herman Lee Moore, Albert Lee Scott, Jr., and Willis Leroy were arrested and later charged with kidnapping, extortion, and the aggravated murder of Lester Emoff. On October 1, 1975, the Montgomery County Grand Jury returned indictments against these three men on such charges.

The Emoff case engendered widespread and intense comment in both the print and electronic media. On October 2, 1975, apparently as a result of a Dayton Daily News article disclosing that one of the suspects, Albert Lee Scott, Jr., had failed a police lie detector test, Judge Stanley S. Phillips issued a “gag order” restraining law enforcement officials, prosecutors, and defense attorneys from discussing the case with news media representatives. The next day. he modified the order to restrain the above persons from divulging the following information to the media: A prior criminal record of any suspects; the existence or contents of any confession, admission or statement; the identity of prospective witnesses; the possibility of a change of plea in the case; and any opinions of the accused’s guilt or innocence or of the merits of the case: •

On October 23, 1975, counsel for defendant Moore filed three pretrial motions to suppress :' (1) “# * * all tangible evidence obtained from the defendant by any law enforcement officer;” (2) “any and all statement(s) made by the defendant to any law'enforcement officer, whether said statement(s) be exculpatory or inculpatory;” and (3) “evidence of pre-trial .identification and courtroom identification at trial of the within cause.”

On October 28 1975, defendant Moore, through counsel, filed an additional motion requesting the trial court to hold all pretrial hearings in his case in camera. In the motion, defendant Moore specifically waived the rights provided him by the Sixth Amendment to the Constitution of the United States and by Section 10, Article I, of the Constitution of the state of Ohio as they relate to his motion.

The trial court, on October 29, 1975, ordered a hearing on defendant Moore’s in camera motion, and invited counsel for the news media in the Dayton area to file briefs amicus curiae. A hearing was duly held, at which time counsel for the relator appeared to present its position.

On November 4, 1975, respondent, Stanley S. Phillips, Judge of the Court of Common Pleas of Montgomery County, issued a lengthy opinion sustaining defendant Moore’s motion to exclude the public, including representatives of the press, from all pretrial suppression hearings in the case of State v. Moore, case No. 75-CR-1353.

Judge Phillips, in his opinion, stated: “Counsel for the defendant in a motion for change of venue has supplied to the court a series of exhibits which are clippings from local newspapers beginning with the date of September 26,1975. In that short time reference; that is, from the date of arrest until the present day, over seventy-five articles have appeared in the local newspapers relative to the crime charged herein. This, of course, does not take into account the multitude of references to this matter which have been made by the radio and television stations of this locale.

‘ ‘ The court finds then that the publicity in this matter has been and would appear to continue to be extremely intense. * * * Under the time frame with which the court finds itself confronted, trial on the merits will commence approximately one week after the hearing on the motions. At this time the court, of course is unaware of what may be developed at such motion hearing, but a reading of the motions makes it clear that statements and other highly incriminating matters will be discussed. Prospective jurors cannot help but to be exposed to such matters. The court is of the opinion, that it would be equally damaging to the defendant’s right to a fair trial to have a headline appear the week before trial indicating either that the court has excluded particular evidence or ruled same admissible.”

Judge Phillips concluded: “The court finds that the intense publicity referred to at the beginning of this opinion has created a clear and present danger of a serious and imminent threat to the administration of justice and that in order to prevent the possibility of further prejudicial pretrial publicity,, which might affect the right of the defendant to a fair and impartial trial, the motion of the defendant must be and hereby is SUSTAINED.”

Later that same day, November 4, 1975, relator, Dayton Newspapers, Inc., filed an original action in prohibition in the Court of Appeals for Montgomery County. That court denied relator’s motion, on November 7, 1975.

Thereafter, on November 10, 1975, relator voluntarily dismissed its action in the Court of Appeals, and filed an original action in this court seeldng a writ of prohibition to restrain respondent from enforcing his order.

A hearing was held before four members of this court on Veterans Day, November 11, 1975, upon relator’s motion for an alternative writ of prohibition, and; on Npvem-; ber 12, 1975, by a 4—3 vote, this court allowed relator’s motion, effectively staying respondent’s order. ■ • ■

The respective briefs were timely filed, and oral argument was held upon relator’s complaint in prohibition, on December 17, 1975.

The cause is now before this court for decision upon-the merits.

Relator advances seven propositions of laAv Avhich, upon distillation, emerge as four separate issues requiring our consideration. Stated briefly, these issues are: (1) Whether prohibition is a proper remedy under the circumstances of this case; (2) whether relator has “standing” to litigate the Avithin cause; (3) whether Section 16, Article I of the Ohio Constitution, either standing alone or considered in coniunction with Section 10, Article I, of the Ohio Constitution, confers upon the public, generally, and the press, particularly, the right to be present at all judicial proceedings and' (4) whether a trial judge may constitutionally conduct a pretrial suppression hearing in a widely publicized criminal case in camera, thereby excluding' therefrom all members of the general public, including representatives of -the print and electronic media. Although-.these issues sometimes overlap, we will, in the interests of' clarity and organization, discuss each issue separately in- the context of this opinion.

I. PROHIBITION

• Section 2(B) (1) (d), Article IV, of the Ohio Constitution states as follows:

“The Supreme Court shall have original jurisdiction in the-following: ¡ -■■■ :'

“ (d) Prohibition * * *”

: In State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St. 2d 11, the court held that a writ of prohibition will be issued only if the following three conditions are proved to exist: “ (1) The court or officer against whbm-it is sought must be about to exercise judicial or quasi-judicial power ; (2). the exercise of such power must be unauthorized by law; and (3') -it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy; State, ex rel. Caley, v. Tax Comm., 129 Ohio St. 83, at 87.” Accord, State, ex rel. Bell, v. Blair (1975), 43 Ohio St. 2d 95, 96; State, ex rel. Susi, v. Flowers (1975), 43 Ohio St. 2d 11, 13; State, ex rel. McKee, v. Cooper (1974), 40 Ohio St. 2d 65.

With respect' to the first condition mandated by Cmich, supra, it is axiomatic that Judge Phillips’ order excluding the various media representatives, as well .as the general public, from.'all pretrial suppression hearings in. the case of State v. Moore was an exercise of judicial power.

It is equally clear that no other adequate remedy exists which is available to relator. In State, ex rel Jackman v. Court of Common Pleas of Cuyahoga County, (1967), 9 Ohio St. 2d 159, relators sought to restrain a trial court from forcing them to submit to depositions in -a first-degree murder trial. Although we denied issuance of the requested writ of prohibition in that case, we acknowledged that prohibition was the proper procedural avenue by which t'ó contest the trial court’s ruling under the circumstances presented therein. In this regard we stated: “■* * * it affirmatively appears that relators have no plain and adequate remedy in the ordinary course of the law * * *. Nor would any remedy in the Common Pleas Court * * * be appropriate, since it is that court’s action that is being challenged.

“Therefore, since the relators seek to prevent an .alleged usurpation of the judicial power and are without a plain and adequate remedy in the ordinary course, of the-law. resort -to dhe writ of prohibition was correct’by any standard that this court has fashioned for extraordinary remedies.” (Citations omitted.) 9 Ohio St.' 2d at 160.:; .'

Since- it is undisputed that the trial -court .possessed jurisdiction, to preside over the ease of State v. Moore, the question remains whether Judge. Phillips’ order was. “unauthorized by law.”

At the outset, we note that neither party has cited to us, nbr have' -we discovered, any statutory provision constitutional source, or court rule in this state empowering a trial court to exclude the general public, including representatives -of the media, from a pretrial hearing in a criminal case.

Respondent contends, and we agree, that a trial judge possesses inherent power to control any proceeding before him.

Though not directly in point, in State v. Hensley (1906), 75 Ohio St. 255, 265, this court stated the following: “It is not intended here to indicate that the trial judge is without power to exclude from the court room during the trial of a criminal case individuals, though adults, who are, by reason of habits or physical condition, personally obnoxious, or persons who by their conduct interrupt the orderly course of business * * * nor is it doubted that persons whose attendance is for the express and only purpose of using the information thus obtained in a way calculated to directly obstruct the administration of justice may be excluded.- * * * Much should be, and we think is, necessarily and properly left to the trial judge, who is obliged to insist upon the orderly conduct of the public business, and whose highest duty is the securing to the parties, the defendant as well.as the state, a fair and impartial trial * ■* V’

Such inherent power emanates from the very creation and existence of the court itself, and is imperative to the preservation of the fa