concurring. In general, I concur with the judgment of the majority.
I write separately for the following reasons:
I
I do not agree with the majority’s application of State, ex rel. Temke, v. Outcalt (1977), 49 Ohio St. 2d 189, 3 O.O. 3d 248, 360 N.E. 2d 701. In fact, it appears that the majority itself does not adhere to Temke when the majority uses as its authority State, ex rel. Hughes, v. Brown (1972), 31 Ohio St. 2d 41, 6 O.O. 2d 11, 285 N.E. 2d 335. The citing and discussing of Hughes is appropriate.
II
I do not agree with the off-hand statement by the majority that “* * * [a] case-by-case determination of the necessity of closure is required.” For that proposition, the majority cites Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 607-608. Statements like this, out of context, have a habit of creeping into future decisions as statements of authority. The full statement from Globe referenced by the majority actually reads “* * * [a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. * * *” (Emphasis added.) Id. at 608. This is obviously not what we have in the case at bar and, in any event, even in Globe, the court found the closure order to be invalid.
III
I do not agree with the majority’s *117analysis of the holding of Miami Herald Pub. Co. v. Tornillo (1974), 418 U.S. 241. The majority says that Tornillo stands “for the proposition that government cannot dictate the content of what is published or broadcast.” That is not the proposition for which Tornillo stands. As indicated by former Chief Justice Burger’s unanimous majority opinion and the concurring opinions of Justice Brennan (joined in by then Justice and now Chief Justice Rehnquist) and Justice White, Tornillo is a “right of reply” case; it does not involve “content” of a publication.
IV
Likewise, I do not agree, in connection with the case at bar, with the citing by and discussion of the majority of Branzburg v. Hayes (1972), 408 U.S. 665. In Branzburg, Justice White said “[t]he issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.” Id. at 667.
The case now before us does not involve newspersons appearing before grand juries. It only involves whether a court has the power to order newsgatherers not to dispose of material they have gathered. A different set of rules applies.
V
Part II of the majority opinion discusses “The Order to Preserve News and Commentary Tapes.” Included in this section is a statement that the order in question “* * * was issued in a criminal case, and hence Civ. R. 65 does not apply. * * *” Such a statement ignores Crim. R. 57(B): “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists.”
Further, the majority equates the order to a subpoena and cites to Crim. R. 17(A). If the order is in the nature of a subpoena, then it is subject to a motion to quash (or a protective order) and a hearing to determine the validity of the motion to quash is then held. No hearing was afforded to relators here.
In addition, of course, is the more serious First Amendment question of the right of newsgatherers to gather the news. Just the existence of, the order brings about a chilling effect on what information may be gathered and which persons may be interviewed.
VI
Finally, in the trial court’s March 6, 1990 order, it is provided that any actions of a media representative in violation of any of the orders “* * * shall also be imputed to the employing publisher * * * and shall be subject to contempt. Failure * * * to abide by these rules * * * shall subject the media representative as well as its publisher to * * * a citation for contempt, punishable by a fine and/or imprisonment. * * *” (Emphasis added.) Imputing criminal liability to a publisher for the actions of a reporter is serious business, indeed!