dissenting.
I dissent.
In Williams v. Stafford, Wyo.1979, 589 P.2d 322, this court held that mandamus is the proper remedy to seek relief in cases of this nature and that applications should, after the date of that decision, be presented to the proper district court and “the function of a reviewing court in dissemination cases is to determine whether there has been an abuse of discretion,” 589 P.2d at 327. (Emphasis in original.) That rule, however, now turns out to be unavailable because, when a court grants a motion to close court proceedings from the public and the media, it has acted within its powers of discretion and the petitioner for mandamus is pursuing a hopeless course — an exercise of futility — even though the standards laid down by this court have not been followed. I cannot agree that we are powerless to address this matter. To so conclude is to make a mockery of the standards we ourselves directed.
I iterate by reference my views expressed in detail in my dissent in Williams, 589 P.2d at 328-334. At this point I summarize from there what abuse of discretion means. Section 1-30-102, W.S.1977, upon which the majority relies, restates the common law rule that a writ of mandamus may not control judicial discretion. However, it does not authorize abuse of discretion. A county court cannot act arbitrarily under the guise of discretion. When discretion is abused, mandamus may issue. “Abuse of discretion” is a legalistic phrase used to indicate that an appellate court is of the opinion that an error of law has been committed. It is an act of the inferior tribunal exercised to an end not justified by law, reason and evidence. In this case the county court commissioner did not follow the standards established by this court, and the majority does not seem to notice.
*1269A remedy was held out and now it has been snatched away and the standards have been rendered a complete nullity in that no way remains to enforce them. Mandamus is designed to give a quick method of correcting an inferior court’s errors of law where no other remedy is available:
“Mandamus is a writ issued in the name of the state to an inferior tribunal, a corporation, board or person commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Section 1-30-101, W.S.1977.
“The writ must not be issued when there is an adequate remedy at law. It may issue on the information of the party beneficially interested.” Section 1-30-104, W.S.1977.
There is no remedy at law available. There is no provision for appeal from erroneous rulings of a county court at the preliminary hearing stage.
In an appeal, neither this court nor any other appellate court will disturb the truly discretionary acts of an inferior court. By “discretion” is meant an impartial discretion, guided and controlled in its exercise by fixed legal principles; it is a legal discretion to be exercised in a manner to subserve and not to defeat the end of substantial justice and, for a manifest abuse, it is reviewable by the appellate jurisdiction. Lake v. Lake, 1947, 63 Wyo. 375, 399, 182 P.2d 824. If a matter rests within properly exercised discretion of a court, this court will not interfere unless it affirmatively appears the decision of the court was without substantial evidence to support it or that it was an abuse of discretion. Redwine v. Fitzhugh, 1958, 78 Wyo. 407, 329 P.2d 257, 72 A.L.R.2d 664, reh. den. 78 Wyo. 426, 330 P.2d 112.
Mandamus is not designed to permit an avoidance of the requirements of the law and permit arbitrary and unreasonable action. It is fashioned to prevent such action.
In Williams, this court held that access to court proceedings should be limited only in exceptional circumstances and adopted the A.B.A. Standard 8-3.2, Fair Trial and Free Press, Standards Relating to the Administration of Criminal Justice, that a preliminary hearing may be closed only if:
“ ‘(i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and “ ‘(ii) the prejudicial effect of such information on trial fairness cannot be avoided' by any reasonable alternative means.’ ”
The alternative means appear in the commentary to the A.B.A. Standard are: (1) continuance, (2) severance, (3) change of venue, (4) change of venire, (5) intensive voir dire, (6) additional peremptory challenges, (7) sequestration of the jury, and (8) admonitory instructions to the jury.
In Williams v. Stafford, supra, the majority excused the Justice of the Peace because this court had, as yet, constructed no standards which could serve as the touchstones for identification of abuse of discretion. 589 P.2d at 327. Now there are standards, and they were in effect before this case arose in county court. If that court official failed to follow those standards, there was an abuse of discretion. Bistrict Judge Spangler meticulously followed the directions of this court and conducted his review within the scope outlined in Williams. He examined the record of proceedings in the county court and in his decision letter found:
“In Williams v. Stafford, the Wyoming Supreme Court set standards for the guidance of our Courts. The Supreme Court stated that access to court proceedings should be limited only in exceptional circumstances. The Court also found that the American Bar Association Standard is the most acceptable approach. That Standard indicates that if at the pretrial proceeding evidence is adduced that is likely to threaten the fairness of a trial, the presiding officer shall advise those present of the danger and shall seek the voluntary cooperation of the media in delaying dissemination of potentially prejudicial information until impaneling of the jury or an earlier time consistent with the administration of justice. *1270There is no indication in the record of this case that this initial step was taken.
“The Standard further provides that the hearing may be closed only if the dissemination of information from the pretrial proceeding would create a clear and present danger to the fairness of the trial and the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. The record here is lacking in evidence that the dissemination of information from the pretrial proceeding would create a clear and present danger to fairness of the trial. There is nothing in the record to show the ‘exceptional circumstances’ required. As to this element, these cases appear no different from scores of others that pass through our Courts each year.
“There is also no evidence in the record to support a finding that the prejudicial effect of information from the pretrial proceeding on trial fairness cannot be avoided by any reasonable alternative means. For example, the alternative of sealing documentary exhibits was not considered.”
The district judge thereupon concluded, and in an order following his decision held, that the county court commissioner had abused his discretion in closing the proceedings and granted the writ of mandamus. His action was in all respects consonant with the Williams decision.
There is a misconception evident in the majority opinion as to how an opinion of the Supreme Court of the United States is examined. The lead opinion of the Justice delivering “the opinion of the court” does not always express the majority opinion. In order to determine the holding of a majority of the court on.a particular issue, it is necessary to study not only the “opinion of the court” but also the concurring and dissenting opinions as well. The holding may well be found in a combination of those opinions. Such is the case of Gannett Co., Inc. v. DePasquale, 1979, - U.S. -, 99 S.Ct. 2898, 61 L.Ed.2d 608, which is cited frequently in support of the majority views. Most of what is said in the so-called “majority” opinion in Gannett is dictum.
For example, directly bearing on this case, the majority opinion in the cases before us states:
“ * * * The majority in Gannett recognized — as we did in Williams, supra, that the public has an ‘interest’ in the Sixth Amendment guarantees for public trial, but this does not create a constitutional right on the part of the public.” (Footnote omitted.)
The decision letter of the county court commissioner also stated that, “Gannett holds that there is no constitutional public right to access.” The majority holds that the right to a public trial is personal to the defendant. Neither the majority nor the commissioner is correct.
Justice Powell and the four dissenting (total of five) Justices in Gannett did not agree with that expression found in what is assumed to be the majority opinion but which is not. Justice Powell said in his concurrence:1
“ * * * Because of the importance of the public’s having accurate information concerning the operation of its criminal justice system, I would hold explicitly that petitioner’s reporter had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing. As I have argued in Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514 (1974) (POWELL, J., dissenting), this constitutional protection derives, not from any special status of members of the press as such, but rather because ‘[i]n seeking out the news the press . . . acts as an agent of the public at large,’ each individual member of which cannot obtain for himself ‘the *1271information needed for the intelligent discharge of his political responsibilities.’ Id., at 863, 94 S.Ct. 2811 [, at 2821, 41 L.Ed.2d 514]. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-778, 98 S.Ct. 1407, [1415-1417, 55 L.Ed.2d 707] (1978).” 99 S.Ct. 2914-2915. (Emphasis added and footnote omitted.)
Justice Blackmun, speaking for the dissent of four after a comprehensive review of controlling history and authority, writes:
“I therefore conclude that the Due Process Clause of the Fourteenth Amendment, insofar as it incorporates the public trial provision of the Sixth Amendment, prohibits the States from excluding the public from a proceeding within the ambit of the Sixth Amendment’s guarantee without affording full and fair consideration to the public’s interests in maintaining an open proceeding. And I believe that the Sixth and Fourteenth Amendments require this conclusion notwithstanding the fact it is the accused who seeks to close the trial.” 99 S.Ct. at 2932 — 2933. (Emphasis added and footnote omitted.)
“The Sixth Amendment, in establishing the public’s right of access to a criminal trial and a pretrial proceeding, also fixes the rights of the press in this regard. Petitioner, as a newspaper publisher, enjoys the same right of access to the Jackson v. Denno [, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908] hearing at issue in this case as does the general public. And what petitioner sees and hears in the courtroom it may, like any other citizen, publish or report consistent with the First Amendment. ‘Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom.’ Sheppard v. Maxwell, 384 U.S., at 362-363, 86 S.Ct. 1507 [, at 1522, 16 L.Ed.2d 600, 6 Ohio Mise. 231, 35 Ohio Ops.2d 431], Reporters for newspaper, television, and radio ‘are entitled to the same rights as the general public’ to have access to the courtroom, Estes v. Texas, 381 U.S., at 540, 85 S.Ct. 1628, [at 1631, 14 L.Ed.2d 543,] where they ‘are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media.’ * * ” 99 S.Ct. at 2939.
The public and the press, therefore, have more than just an interest. They have a constitutionally guaranteed right. Thus, under close scrutiny, the majority in Gan-nett agrees that there is a constitutionally protected right, they simply do not see eye to eye on its derivation.
There is no question but that the public, including the media, has standing to and may interject itself into a criminal proceeding. A criminal prosecution is not a private affair from which the public can be precluded. To say that the public cannot personally or through its agent, the media, attend is tantamount to the clients of the attorneys being ejected from the courtroom. The prosecutor has the public as his client. In passing, I would note that the following quote from Gannett appearing in the majority opinion in the cases before us does not represent the real majority view in that case: “In an adversary system of criminal justice, the public interest in the administration of justice is protected by the participants in the litigation.” That statement represents no more than the personal view of Justice Stewart — dictum. The public is not a stranger. It is their case being tried. I would add that in Gannett the public, through the news media, was given standing to litigate the issue of closure as it was in Nebraska Press Assn. v. Stuart, infra. The majority forgets that the courts belong to the public, not judges or attorneys.
The so-called “hearing” on the motion2 for closure, much discussed by the majority, ended up being no hearing at all. Counsel for the Casper Star-Tribune and KTWO *1272appeared to object to closure of the preliminary hearing. After some attempt to urge the right of participation, he was denied that right of appearance on the ground that he, as an attorney for the news media, had no standing to remain and test the propriety of the closing and was not permitted to remain for the closure hearing. The closure hearing was closed to him. The commissioner indicated that counsel for the media could remain as an officer of the court, as apparently any other attorney could. Two attorneys, apparently unconnected with the case, did remain. Counsel for the media did not ask that news reporters be permitted to remain or that the proceedings be published. Counsel for the media properly made it clear he could not ethically wear two hats and departed.
A significant point not yet made is that the prosecutor in this case opposed closing the preliminary hearing. In this respect, the case is not like Gannett or Williams, where the prosecutor agreed to closure. All that ensued at the “hearing” was an open-ended discussion of Williams and Gannett. There just simply was no showing, no substantive presentation was made, that this is an exceptional case requiring closure because the alternatives would not effectively protect the defendant. “Exceptional” means the presence of circumstances which are unusual or extraordinary. Black’s Law Dictionary, Fifth Edition, 1979.
The affidavit to which the commissioner refers as possibly prejudicial to a fair trial if publicized is the ordinary affidavit used to support probable cause for the issuance of a warrant. Rule 4(a), W.R.Cr.P. No one argues that hearsay may not be included in the affidavit. It is merely the basis for probable cause to believe that an offense has been committed and that the defendant has committed it. It is a sworn recitation of knowledge of facts used to justify issuance of a warrant. Such an affidavit must be filed in every case before a warrant shall issue. It is intended that every statement contained in an affidavit should point to the probable guilt of the defendant charged — that is nothing unusual. Certain statements of the defendants Howell and Little purportedly made to the affiant are also included in the affidavit. It is expected that the State will be put on its proof of all those matters at the trial. There is nothing unusual or exceptional about that. The only purpose of a preliminary hearing is to establish to the satisfaction of the County Judge, Magistrate, or Justice of the Peace that there is probable cause to believe that an offense has been committed and that the defendant charged has committed it. Rule 7, W.R.Cr.P. It is not the purpose of the preliminary hearing to prove guilt. Evidence at a preliminary hearing may or may not be admissible at the trial. There is nothing unusual about that. Scores of murder eases pass through the same procedures as those followed here. Most of them have a very similar profile. One of the first things to be impressed upon a trial jury by the counsel, as well as by the court, is that it must decide the case on the basis of evidence admitted by the court at trial.
An additional consideration is that there was no showing made that the voluntary cooperation of the news media in delaying dissemination of potentially prejudicial information by means of public communications was sought. Nor was there any showing of any “clear and present danger to the fairness of the trial.” Clear and present danger are particularly applicable to First Amendment rights. Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Whitney v. People of California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. As said by Justice Brandéis’ concurring opinion in Whitney, supra:
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger *1273apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. * * *
“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” (Footnote omitted.) 47 S.Ct. at 648-649.
All that was expressed by the proponents of closure at the “hearing” was fear — unsupported fear — no facts — only conjecture.
What kind of a hearing should there really be? The majority (Powell and the four “dissenters”) in Gannett conceive the type of hearing there should be. Justice Powell:
“ * * * Upon timely objection to the granting of the motion [for closure], it is incumbent upon the trial court to afford those present a reasonable opportunity to be heard on the question whether the defendant is likely to be deprived of a fair trial if the press and public are permitted to remain in attendance. At this hearing, it is the defendant’s responsibility as the moving party to make some showing that the fairness of his trial likely will be prejudiced by public access to the proceedings. Similarly, if the State joins in the closure request, it should be given the opportunity to show that public access would interfere with its interests in fair proceedings or preserving the confidentiality of sensitive information. On the other hand, members of the press and public who object to closure have the responsibility of showing to the court’s satisfaction that alternative procedures are available that would eliminate the dangers shown by the defendant and the State.” 99 S.Ct. at 2916.
Justice Blackmun for the dissent:
“ * * * The accused who seeks closure should establish, however, at a minimum the following:
“First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public. This showing will depend on the facts. But I think it requires evidence of the nature and extent of the publicity prior to the motion to close in order to establish a basis for the trial court to conclude that further coverage will result in the harm sought to be prevented. In most cases, this will involve a showing of the impact on the jury pool. This seldom can be measured with exactness, but information relating to the size of the pool, the extent of media coverage in the pertinent locality, and the ease with which change of venire can be accomplished or searching voir dire instituted to protect against prejudice, would be relevant. The court also should consider the extent to which the information sought to be suppressed is already known to the public, and the extent to which publication of such information, if unknown, would have an impact in the context of the publicity that has preceded the motion to close.
“Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial. One may suggest numerous alternatives, but I think the following should be considered: continuance, severance, change of venue, change of venire, voir dire, peremptory chai-*1274lenges, sequestration, and admonition of the jury. ABA Project on Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press Standard 8-3.2, at 16 (App.Draft 1978). See Nebraska Press Assn. v. Stuart, 427 U.S. [537], at 562-565, 96 S.Ct. 2791, [at 2804-2806, 49 L.Ed.2d 683], Sheppard v. Maxwell, 384 U.S., at 354 n. 9, 358-362, 86 S.Ct. 1507, [at 1518 n. 9, 1519-1522, 16 L.Ed.2d 600, 6 Ohio Misc. 231, 35 Ohio Ops.2d 431]. One or more of these alternatives may adequately protect the accused’s interests and relieve the court of any need to close the proceeding in advance.
“I note, too, that for suppression hearings alternatives to closure exist that would enable the public to attend but that would limit dissemination of the information sought to be suppressed. At most such hearings, the issues concern not so much the contents of a confession or of a wiretap, or the nature of the evidence seized, but the circumstances under which the prosecution obtained this material. Many hearings, with care, could be conducted in public with little risk that prejudicial information would be disclosed.
“Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm. Where significantly prejudicial information already has been made public, there might well be little justification for closing a pretrial hearing in order to prevent only the disclosure of details.
“I emphasize that the trial court should begin with the assumption that the Sixth Amendment requires that a pretrial suppression hearing be conducted in open court unless a defendant carries his burden to demonstrate a strict and inescapable necessity for closure. There should be no need for a representative of the public to demonstrate that the public interest is legitimate or genuine, or that the public seeks access out of something more than mere curiosity. Trials and suppression hearings by their nature are events of legitimate public interest, and the public need demonstrate no threshold of respectability in order to attend. This is not to say, of course, that a court should not take into account heightened public interest in cases of unusual importance to the community or to the public at large. The prosecution of an important office holder could intensify public interest in observing the proceedings, and the court should take that interest into account where it is warranted. It is also true, however, that as the public interest intensifies, so does the potential for prejudice.
“As a rule, the right of the accused to a fair trial is compatible with the interest of the public in maintaining the publicity of pretrial proceedings. ‘In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right.’ Nebraska Press Assn. v. Stuart, 427 U.S., at 551, 96 S.Ct. [2791, at 2799, 49 L.Ed.2d 683]. Our cases ‘cannot be made to stand for the proposition that juror exposure to information about a state defendant’s pri- or convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.’ Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, [2036], 44 L.Ed.2d 589 (1975). * * *” (Footnote omitted.) 99 S.Ct. at 2937-2938.
No hearing was held that could be said to satisfy either, or a combination of both, of these formulas. I would also point out that under Williams v. Stafford, supra, while the majority held the hearing for closure should be closed, there is no indication that the media should be banned for the purpose of representation and resistance to the motion. While I do not agree that it should be closed in any aspect, if it is to be the law of this jurisdiction that it be closed for publicity purposes, the press with its right to be heard should at least be allowed the presence of its counsel and such witnesses as it may call.
The summary disposition of the county court commissioner assumes the inadequacy *1275of counsel at the trial to conduct an appropriate voir dire, assumes the inadequacy of jurors to base their verdict on the evidence before them, assumes the inadequacy of the trial judge to properly instruct the jury in controversial matters, assumes the inadequacy of a jury to follow the court’s instructions. For all intents and purposes, it also sets aside § 7-11 — 106, W.S.1977:
“In the trial of criminal cases it shall not be cause for challenge that a person called to act as a juror has formed or expressed an opinion as to the guilt or innocence of the accused from newspaper reports and rumor, or from either of them, if such person swear that he can impartially try the case according to the law and evidence notwithstanding such opinion.”
One of the best examples that news stories very likely have little, if any, effect on the trial outcome is the case out of which arose Williams v. Stafford, supra, State v. Edward L. Cantrell, of which judicial notice may be taken. The news coverage was massive with respect to the preliminary hearing. The news items disclosed evidence both favorable and unfavorable to the defendant, including what was probably evidence inadmissible at the trial. The trial judge changed the venue. The defendant was acquitted, eliciting further reporting and editorial comment over an apparently unexpected outcome. What the public sees, hears, reads and believes and what the jury sees, hears and holds are two entirely different pictures.
In referring to the affidavits the court commissioner’s decision letter states, “These statements, if disseminated may well constitute prejudicial pretrial publicity making it difficult or perhaps impossible to empanel an impartial jury in Natrona County District Court.” (Emphasis added.) This indicates that the commissioner failed to consider the alternative of a change of venue, which he must in order to conform to this court’s standards.
The commissioner did not gag counsel, but gagged witnesses from discussing “their testimony with the public in general or the media, or other witnesses.” At the same time, he only allowed the addressees of his decision letter, “the three main Attorneys” which did not include counsel for the media to examine and have copies of the closed proceedings and the decision letter.3 That is the equivalent of this court’s not permitting any but “the three main Attorneys” to have copies of the court’s opinion in this case. As I remonstrated in my dissent in Williams:
“The petitioners, in the important matter before us, are at a terrible disadvantage. They do not have available the tapes or a transcript. The court has set aside the usual adversary process which is the heart of the judicial function whereby all sides of the question are permitted to be argued. Petitioners cannot express their views as to how prejudicial any part of the secret hearing might be. They are asked to just trust that the court will do the right thing. We had better be right. It is for that reason, ‘ . . . any claim of practical justification for a departure from the constitutional requirement of a public trial must be tested by a standard of strict and inescapable necessity.’ [Citing case.]” 589 P.2d at 334.
There is no consideration by the commissioner of the alternatives to closure other than to a reference to a trial in Natrona County. A change of venue was not considered to overcome any prejudice that might arise from an open hearing. It *1276would be well to repeat what the majority of the United States Supreme Court said about the alternatives in Nebraska Press Assn. v. Stuart, 1976, 427 U.S. 539, 96 S.Ct. 2791, 2795, 49 L.Ed.2d 683, which case Gan-nett has not overruled. In that case the trial court found “a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.” (Emphasis added.) In this case the commissioner speculated that dissemination “may well constitute prejudicial pretrial publicity.” (Emphasis added.) The Supreme Court of the United States said:
“ * * * Although the entry of the order might be read as a judicial determination that other measures would not suffice, the trial court made no express findings to that effect; the Nebraska Supreme Court referred to the issue only by implication. [Citing case.]
“Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious ap-
proval in Sheppard v. Maxwell, 384 U.S., at 357-362, 86 S.Ct., at 1519-1522: (a) change of trial venue to a place less exposed to the intense publicity that seemed imminent in Lincoln County; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors, as Mr. Chief Justice Marshall used in the Burr case [25 Fed.Cas. No. 14,692g, p. 49 (CC Va.1807)], to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Sequestration of jurors is, of course, always available. Although that measure insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors’ oaths.
“This Court has outlined other measures short of prior restraints on publication tending to blunt the impact of pretrial publicity. See Sheppard v. Maxwell, supra, at 361-362, 86 S.Ct., at 1521-1522. Professional studies have filled out these suggestions, recommending that trial courts in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone. See American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press 2-15 (App.Draft 1968).
“We have noted earlier that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial. The decided cases ‘cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.’ Murphy v. Florida, 421 U.S., at 799, 95 S.Ct., at 2036. Appellate evaluations as to the impact of publicity take into account what other measures were used to mitigate the adverse effects of publicity. The more difficult prospective or predictive assessment that a trial judge must make also calls for a judgment as to whether other precautionary steps will suffice.
“We have therefore examined this record to determine the probable efficacy of the measures short of prior restraint on the press and speech. There is no finding that alternative measures would not have protected Simants’ rights, and the Nebraska Supreme Court did no more than imply that such measures might not be adequate. Moreover, the record is lacking in evidence to support such a finding.” (Footnotes omitted.) Nebraska Press Assn. v. Stuart, 96 S.Ct. at 2805-2806.
It must be concluded that there was no application of the approved standards for closure, and thus the closing was arbitrary and an abuse of discretion.
I have joined in the dissent of Justice Rooney because I consider it a desirable alternative. In Williams v. Stafford, supra, we invited the media to use mandamus and district courts to take jurisdiction and conduct the review of the inferior court’s ac*1277tion in closure matters. Now the court does a turnabout and effectively holds that district courts have no jurisdiction to test for abuse of discretion.
I would have denied both applications for writs of prohibition and granted the motion to affirm filed by the respondent Harri-scope, No. 5245, thus leaving intact the district court’s order to open the preliminary proceedings to the public and the press.
. Justice Powell concurs on the basis that the First Amendment rights of the press and public must be weighed against the Sixth Amendment rights of the defendant. In this case Powell says he is able to conclude, on the basis of the hearing that was held, that the latter outweigh the former.
. The motion for closure was only one part of the total motion presented to the court. The hearing was closed as to the entire motion which also asked for a gag order to prevent members of the sheriffs office, the county and prosecuting attorney, witnesses and members of the press from discussing the case.
. The full text of the paragraph of the decision referred to:
“Additionally it should be noted that the respective Attorneys, as officers of the Court, will be permitted to obtain and review, but specifically not for photocopying, copies of the transcript of the closed proceedings on the motions and this decision letter. However, copies will be limited to the three main Attorneys; Mr. Schroeder, Mr. Bondi and Mr. Tristani. I will not order ‘gag’ rules pursuant to Nebraska Press Association v. Hugh Stuart, but if you want copies, I expect full compliance with the closure order of this Court under penalty of contempt sanctions. I also expect continued highly professional behavior standard and conduct in this matter.”