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 *459television 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, *46033 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?1
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,
*4613. 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.
*462■ ': .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.
*463The 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 *464prejudicial 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 *465right 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: ' •
*466“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 *467in-.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 *468to 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 run*469tions 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 * '*•