dissenting. I respectfully dissent from the Court’s affirmance of the judgments of civil and criminal contempt entered below. Subjecting appellants to sanctions for failure to comply with a judicial order prior to an adjudication as to their legal obligation to comply with that order runs counter to the core concept of our legal system — due process of law. This is not a case in which appellants’ claims of privilege are frivolous and easily disposed of; quite the contrary, substantial questions afe herein presented concerning appellants’ rights under both the Eirst Amendment and the New Jersey Hews Media Privilege Act to refuse to disclose sources and confidential information gathered in the course of appellant-Earber’s investigative reporting activities. Since appellants were denied an opportunity to present these claims prior to the imposition against them of coercive and punitive sanctions, the judgments of contempt must be vacated and the case remanded for a hearing to determine the merits of their objections.
The main question posed by the present ease is whether the New York Times Company and Myron Ear.ber may be adjudged to be in civil and criminal contempt for their refusal to comply with an order of the judge presiding over the trial in State v. Jascalevich to produce certain materials *284for in camera inspection before the merits of various proffered defenses are heard and decided. Other significant questions concern the scope of the New Jersey News Media Privilege Act and the type of hearing that should have been accorded appellants.
My resolution of this controversy makes unnecessary a consideration of appellants5 claims that the subpoena is impermissibly overbroad, see State v. Cooper, 2 N. J. 540 (1949), and that the lower court was without jurisdiction to enter contempt judgments against them. Suffice it to say that grave doubts exist as to the manner in which these issues were treated below.
I
Denial of Due Process
The most fundamental tenet of our legal system is that no man can be deprived of life, liberty or property without due process of law. While due process is a flexible concept whose requirements will vary from case to case, there can be no doubt that at a minimum it mandates that deprivations of liberty or property be preceded by an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Grannis v. Ordean, 234 U. S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363 (1914). Where, as here, First Amendment interests are implicated, especially stringent procedural safeguards are required. See, e.g., Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968); Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); L. Tribe, American Constitutional Law, §§12-34 to 12-36 (1978).
At no point prior to the rendition of the contempt judgments were appellants accorded an opportunity to marshall legal arguments against in camera production of the subpoenaed materials. Their claims that the subpoena is imper-missibly overbroad and that compelled in camera disclosure *285is forbidden by the First Amendment and the New Jersey Shield Law, N. J. S. A. 2A :84A-21, were denied consideration both at the motion to quash the subpoena and during contempt proceedings.
The majority’s assertion that appellants were indeed accorded a due process hearing prior to in camera, inspection is simply without foundation in the record. In fact, it directly contradicts the express words of the trial judge. In response to appellants’ contentions that in camera disclosure was legally impermissible, the judge stated:
When the items are produced, this Court will give the applicants a full hearing as to the materiality of the subpoena, its scope and its contents.
The Court will also decide if the items are barred by the Shield Law and any other legitimate defense that may be asserted.
In effect, appellants were to be afforded an opportunity to contest the legality of in camera disclosure only after the materials had been so disclosed. Such a result not only turns logic on its head, but, more importantly, makes a mockery of “due process.” See In re Vornado, Inc., 159 N. J. Super. 32, 38 (App. Div. 1978), certif. den. 77 N. J. 489 (1978).
Farber has therefore never received the hearing to which he is constitutionally entitled. I find it totally unimaginable that the majority can even consider allowing a man to be sent to jail without a full and orderly hearing at which to present his defenses. Mr. Farber probably assumed, as did I, that hearings were supposed to be held and findings made before a person went to jail and not afterwards.
II
New Jersey News Media Privilege
The appellants’ claims as to the privileged nature of the subpoenaed materials are clearly cogent under N. J. S. A. 2A:84A-21. That statute provides, in pertinent part:
*286* * * [A] person * * * connected with, or employed by news media for the purpose of gathering * * * or disseminating news for the general public or on whose behalf news is so gathered * * or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere
а. The source * * * from or through whom any information was procured [;] * * * and
б. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
This ease is the first major test of New Jersey’s new “Shield Law.” There is no reason to accord this statute an unfriendly reception in any court of this State. There should be no eagerness to narrow or circumvent it. The Shield Law is not an irritation. It is an act of the Legislature.
This law was passed in the aftermath of the Supreme Court’s decision in Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). In Branzburg, the Court held that the First Amendment will not always prevent forced disclosure of a reporter’s confidential sources and information. More specifically, it ruled that the reporters there involved had no privilege under the First Amendment against being compelled, on pain of contempt, to reveal such confidential data to an investigating grand jury. In its view, the resulting infringement upon the reporters’ investigating abilities was outweighed by the grand jury’s need to have everyman’s evidence.
The Court emphasized, however, that state legislatures were not powerless to alter the result reached in Branzburg. As Justice White stated:
At the federal level, Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problem® with respect to the relations between law enforcement of*287ficials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to-recognize a newsman’s privilege, either qualified or absolute.
[408 U. S. at 706, 92 S. Ct. at 2669; emphasis supplied]
The News Media Privilege Act was New Jersey’s response to the Court’s invitation. This Act reflects our Legislature’s judgment that an uninhibited news media is more important to the proper functioning of our society than is the ability of either law enforcement agencies, the courts or criminal defendants to gain access to confidential news data.
It cannot be doubted that this legislative judgment rests upon a firm foundation. News media keep the public abreast of goings-on, both public and private, and thus make possible “[e]nlightened choice [s] by an informed citizenry” — “the basic ideal upon which an open society is premised * * *” Branzburg v. Hayes, 408 U. S. 665, 736, 93 S. Ct. 2646, 2672, 33 L. Ed. 2d 626 (1973) (Stewart, J., dissenting). Not only does a free press provide people with a wide range of facts and opinion, but,, \y exposing the actions of public officials, it serves as a cheek upon governmental error and abuse. See, e.g., Sheppard v. Maxwell, 384 U. S. 333, 350, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Estes v. Texas, 381 U. S. 532, 539, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965). As such, it is an “incontestable precondition of self-government.” Branzburg, supra, 408 U. S. at 726, 92 S. Ct. 2646 (Stewart, J., dissenting). In the words of James Madison:
* * * A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.
[Letters and Other Writings of James Madison, Fourth
President of the United States, Vol. 3, p. 276 (1865 ed.)]
It was perhaps for this reason that Justice Douglas concluded that “[t]here is no higher function performed under our constitutional regime” than that of reporting the news. *288Branzburg, supra, at 722, 92 S. Ct. at 2696 (Douglas, J., dissenting) .
A reporter’s ability to obtain sensitive information depends on his reputation for keeping confidences. Once breached — that reputation is destroyed. Potential sources of information can no longer rest secure that their identities and confidences will remain free from disclosure.
Realizing that strict confidentiality is essential to the workings of a free press, our Legislature, through the News, Media Privilege Act, has granted reporters an immunity from disclosure which is both absolute and comprehensive. Any person connected with any news media for the purpose of gathering or disseminating news is granted the privilege of refusing to disclose, in any legal or quasi-legal proceeding or before any investigative body, both the source of and any information acquired.
Courts are thus given no discretion to determine on a ease-by-case basis whether the societal importance of a free and robust press is “outweighed” by other assertedly compelling interests. The Legislature has done the weighing and balancing and has determined that in every case the right to non-disclosure is paramount. If a reporter falls within the ambit of the statute, he has a privilege of nondisclosure.
This privilege exists not only with respect to public disclosures; it encompasses revelations to any legal or quasi-legal body, including “any court.” Even forced in camera disclosures are thus prohibited. Indeed, any other conclusion •would subvert the policies underlying the statute. As Justice Marshall noted, denying a stay in this case:
Many potential criminal informants * * * might well refuse to provide information to a reporter if they knew that a judge could examine the reporter’s notes upon the request of a defendant.
[- U. S. -, 99 S. Ct. 11, 58 L. Ed. 2d 88 (1978) ]
Further, the specter of forced in camera disclosure may, in the words of Justice Douglas, “cause editors and critics to *289write with more restrained pens.” Branzburg v. Hayes, supra 408 U. S. at 721, 92 S. Ct. at 2691 (1972) (Douglas, J., dissenting) .
The majority intimates that a reporter may lose the protection of the Shield Law if he can also he deemed an “investigator.” See <mte at 278. All good reporting must be investigative. If reporting is to be imaginative and understandable, the facts and leads must be searched out. Such resourceful, probing journalism first exposed most of the serious governmental scandals. The process helps people learn what they need to know. To hamper it is to hamper ourselves. To hold therefore that the Shield Law is not applicable to a reporter who is also an investigator is to hold that the Shield Law will never be applicable.1
Branzburg makes clear that the Shield Law is a permissible exercise of legislative authority. As the product of a co-equal branch of government, it must be respected by our Courts.
Appellants’ position that the Media Privilege Act prohibits forced in camera disclosure of confidential data is thus meritorious. Since this is so, it is unnecessary to pass upon their claims that the Eirst Amendment also protects them from such forced disclosure.
Ill
Necessity for Hearing
Jascalevich asserts that the materials subpoenaed in the present case are relevant to his defense, and hence non-disclosure will deprive him of his Eifth and Sixth Amendment rights to a fair trial. It is of course axiomatic that a *290statute cannot be applied so as to abridge an individual’s constitutional rights. However, if the materials are ordered turned over for in camera inspection in order that a determination be made as to their relevance to Jascalevich’s defense, appellants’ statutory privilege of non-disclosure will be eviscerated.
How to deal with this state of affairs? It is submitted that an almost identical situation was faced by the Supreme Court in United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), and that the Court’s solution to the problem in that case should serve as a guide to the case at hand. In Nixon, the production of subpoenaed presidential material was resisted on grounds of “executive privilege.” Disclosure of the data was sought by presidential aides who were criminal defendants as well as by the prosecutors. In the course of its opinion, the Court noted that before the “weighty” interest in confidentiality was undermined by even in camera disclosure, those desirous of obtaining the information were required to make a threshold showing as to the relevance, materiality and necessity of the data to the conduct of the trial. In that case, the Special Prosecutor had met this threshold burden. In the words of the lower court, he had made “a lengthy and detailed showing of [the Government’s] need for the subpoenaed items and their relevance.” United States v. Mitchell, 377 F. Supp. 1326, 1328 aff’d sub nom. United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). See also Brown v. Commonwealth, 214 Va. 755, 204 S. E. 2d 429 (S. Ct.), cert. den. 419 U. S. 966, 95 S. Ct. 229, 42 L. Ed. 2d 182 (1974); State v. St. Peter, 132 Vt. 266, 315 A. 2d 254 (S. Ct. 1974).
The need to impose such a threshold burden upon a criminal defendant is at once manifest. Absent such a requirement, nothing prevents any person accused of a crime from embarking upon “fishing expeditions” into a news media’s files. Such rummaging of a newspaper’s records cannot be permitted. See Brown v. Commonwealth, supra; State v. St. Peter, supra.
*291Case law demonstrates that a criminal defendant’s Eifth and Sixth Amendment rights will be undermined only if subpoenaed data are relevant, material and necessary to the defense. If the information is irrelevant or immaterial or unnecessary to Jasealevich’s defense, or if alternate sources of this information exist, then non-production will not impair his constitutional rights; hence, disclosure cannot be mandated. See Brown v. Commonwealth, supra; State v. St. Peter, supra.
This cause must therefore be remanded for a hearing prior to a decision regarding appellants’ obligation to disclose the subpoenaed materials. At this hearing, evidence can be adduced relating to: (1) the applicability of the Media Privilege to the information sought to be obtained by Dr. Jascale-vich; (2) the existence of a waiver of that privilege; and (3) the relevance, materiality and necessity of the subpoenaed data to Jasealevich’s defense. The latter inquiry will, of course, encompass a determination as to the existence of alternate sources of information. Since the Media Privilege Act prohibits even compelled in camera disclosure, such disclosure should not be ordered, as in Nixon, unless and until Jascalevich has made a threshold showing that the materials are relevant, material and necessary.
The majority suggests that a hearing can he dispensed with, or that its outcome will be foreordained, in every case in which a reporter possesses “considerable knowledge of [a criminal] ease.” See ante at 278. Such a conclusion nullifies the provisions of the Media Privilege Act. In effect, the majority has ruled that Shield Law protection will be withdrawn from reporters who perform their jobs competently — that is, those who gain “considerable knowledge” concerning a criminal case. A hearing as to relevance, materiality, and necessity must be conducted in all cases in which the privilege is invoked. Compelled in camera disclosure must be prohibited unless and until the defendant has met his threshold burden in accordance with the procedures to be discussed below.
*292Those procedures — which will apply to all who may be similarly situated — should be as follows:
(1) The person claiming the privilege should be required to make a prima facie showing that he is a newsperson and that he obtained the subpoenaed materials in the course of his newsgathering duties. This is subject to rebuttal by Dr. Jascalevich; Jascalevich may also show waiver of the privilege.
(2) If the judge finds that the privilege is arguably applicable, then the burden should shift to Dr. Jascalevich to make a threshold showing (a) that the data are relevant, material and necessary to his defense and (b) that no less intrusive means of gaining the information are extant. This showing must demonstrate what the materials are expected to show with sufficient specificity to allow the trial judge to make an independent judgment thereon. Appellants Earber and the Times should then be given an opportunity to rebut Jasealevieh’s showing. If the judge finds that any or all of the requested data are irrelevant, unnecessary or immaterial, he must quash the subpoena as to such materials.
(3) If the judge finds that Jascalevich has made a threshold showing with respect to any of the subpoenaed materials, he should order these materials — and only these materials — produced for in camera inspection. In order that appellants’ rights be infringed to the least extent possible, appellants should be permitted to delete the names of informants and any other identificational indicia during this stage of the proceedings.
(4) After the judge has inspected the material, he should make a determination as to whether any portion is relevant, material and necessary to Dr. Jascalevich’s defense. He must also decide whether that material will probably be admissible at trial. United States v. Nixon, supra, 418 U. S. at 714, 94 S. Ct. 3090. If these criteria are satisfied, then that portion of the material should be released to Jascalevich. All other material must be returned to appellants. Counsel should have an opportuity to be heard.
*293(5) Then judge must make findings of fact and conclusions of law at each stage of the proceedings.
(6) Either party may seek leave to appeal the judge’s decision as to in camera inspection or release of information after inspection.
Throughout all stages of the proceeding, the judge should constantly keep in mind the strong presumption against disclosure of protected materials. All doubts concerning disclosure should be resolved in favor of non-disclosure.
I am mindful that this inquiry will take place in the context of an ongoing murder trial and that delays are undesirable. Therefore, I do not expect that this hearing will be drawn out. The trial judge possesses sufficient powers to ensure that the hearing proceeds expeditiously.
It must be emphasized that such a hearing is to be conducted only in cases in which a criminal defendant asserts that privileged data are necessary to his defense. In all other situations in which the Hews Media privilege is invoked, no constitutional concerns will exist. Hence, given the absolute nature of the statutory privilege, compelled disclosure is forbidden.
Ho such hearing was held prior to the trial judge’s order that the subpoenaed materials be produced for in camera inspection. The majority admits as much. See ante at 277. However, instead of remanding the cause, it invokes its original jurisdiction under E. 2:10-5 in a “patchwork” attempt to make findings of fact essential to its disposition of this controversy. In view of the importance of the questions presented and the state of the record below, this venture into the province of the trial judge is both unwarranted and unwise. An appellate court should rarely engage in original factfinding; its distance from the proceedings below makes factual judgments very difficult. It is not rational to expect that a Court so removed will adequately perform this function. When the issues are of constitutional magnitude, such an undertaking is especially undesirable. A decision whose *294impact will be felt by many persons in many places should not be the product of an incomplete record.
Even were I to agree that original factfinding is appropriate, I could not sanction the manner in which the majority has found its “facts.” The trial judge’s conclusions upon which the majority places so much reliance were not the product of a hearing below in which appellants were allowed to participate. Rather, these conclusions derive solely from the judge’s examination of a handful of newspaper articles. See State v. Jascalevich, 158 N. J. Super. 488, 493 (Law Div. 1978). The “further support” upon which the majority bases its findings of fact, see ante at .278-281, does not even derive from the trial judge. Instead, the majority’s “findings” are taken substantially verbatim from conelusory allegations contained in the statement of facts section of the brief for Dr. Jascalevich. This amalgam of post-hoc, ex parte, and newspaper article “factfinding” is not my idea of what a Shield Law hearing is all about.
IY
Conclusion
I believe the majority holding results in the Shield Law leaving a reporter unshielded and the free press not-so-free. Justice Frankfurter once noted that any court can properly decide a case if only a single principle is in controversy. The difficulty is that this case entails more than one so-called principle. It is therefore a hard case that is destined to make bad law. The victims will be the press, the courts and the public interest.
Appellants were never accorded a Shield Law hearing prior to the imposition against them of contempt sanctions. Indeed, they were not even given an opportunity to argue that such a hearing should be held. Instead, they were told that a hearing would be forthcoming only after the material had been turned over for in camera inspection. The majority’s attempt to compensate for these procedural in*295firmities by engaging in ad hoc factfinding is “too little, too late.” It did not have to happen this way. This constitutional confrontation should have been avoided by granting a fair hearing to Earber and the New York Times under the guidelines mandated above. If the ultimate evidential test had been met by Dr. Jascalevieh in accordance with those guidelines, Mr. Earber would have had to comply with the trial court order for in camera inspection. No one is above the law.
Since appellants were denied “an opportunity to be heard” prior to the imposition of sanctions against them, the judgments below must be vacated.
Counsel for Jascalevich intimates that a reporter who informs the public by authoring a book is somehow less deserving of Shield Law protection than one who articulates his findings in a newspaper. Publishing journalistic books for money is no less an illustrious way to perform the function of the press than is writing newspaper articles for a salary.