concurring in the result:
I respectfully disagree with the rationale of Judge Oakes’ opinion,1 although I concur in the result. In my view, access to the courts for the purpose of conveying information to the public about judicial proceedings falls within the area of protected speech under the First Amendment. Since live television is one of the many ways in which such information may be conveyed, the First Amendment is implicated in a request to televise. However, I believe that Rule 7 is a legitimate time, place or manner restriction on otherwise protected speech. See Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
The issue most easily resolved for me is whether the First Amendment is implicated by denial of a request to televise judicial *25proceedings live. Public access to ongoing judicial proceedings for purposes of reporting on them is protected by the First Amendment, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and must be allowed even in pretrial hearings in criminal matters absent a demonstrable need for secrecy. In re Application of The Herald Company, United States of America v. Michael Klepfer, 734 F.2d 93, 100 (2d Cir.1984). I believe it follows from those cases that, where the media must be permitted access, particular forms of access may be barred only on a time, place and manner theory.
My reasons for upholding Rule 7 on such a theory are more complex. The fact that the Judicial Conference of the United States has recommended adoption of such a rule, that an ad hoc committee of that Conference recently reexamined the issue and unanimously declined to recommend a change, and that Canon 3 A(7) states that federal judges should prohibit television in their courtrooms, obviates for me any need to inquire de novo into whether the apprehensions about television are reasonable. The cumulative years of experience and considered deliberation represented by these various statements are more than ample to justify some restrictions on live television, whatever the views of an individual judge faced with a request to televise.
However, when closely analyzed, the various reasons for concern over television do not exclude the possibility that television may not be harmful in each and every case. CNN thus argues with some considerable force that, even assuming the apprehensions about television are correct, a per se, no exceptions rule banning television cannot be justified as a time, place and manner restriction.
Because I differ with the majority on the First Amendment issue, I must address CNN’s argument that only a case-by-case determination with regard to television can be constitutionally justified. This contention seems to me to be in error because the various apprehensions about television — expenditure of judicial time on oversight, the need to sequester juries, difficulties in selecting juries, effects on witnesses, jurors, lawyers, judges, and court administration, etc. — when balanced against the arguments for television — public interest, importance of the subject matter, etc. — simply do not provide workable standards to govern a trial court’s exercise of discretion. Indeed, because it is unworkable, a case-by-ease rule will likely evolve into a presumption in favor of television. If the apprehensions about television are to be given weight, therefore, a per se rule can be justified.
Consider the decisional process of a case-by-case approach. A request to televise is first made by a network or local station. The very existence of that request indicates the existence of a strong public interest. Absent such an interest, no request will be made, and the issue will not arise. In almost every case in which the issue arises, therefore, an ostensibly strong claim as to the benefits of television, i.e. public interest, can be made, as it was here.2 Next, the district judge weighs the (assumed to be valid) apprehensions about television against the claims of benefit. However, the decision to allow or disallow television must be made ex ante, well before the costs in judicial time and court administration, effects on witnesses, jurors, or lawyers can be known. Indeed, if such matters can, ever be determined with certainty in a particular case, it is only after the fact. Once made, moreover, the decision to televise is likely to be final since the exclusion of television in the middle of a trial or for some witnesses may distort *26television coverage or affect the jury’s verdict.
Seeking the views of the parties is possible but exposure of the reasons pro and con through true adversary argument is unlikely. Even a request for this might put unfair pressure on them lest opposition to television be revealed to the jury, which might then draw an improper inference. A party must also fear television commentary on its opposition to television coverage of a trial. It may be that in the instant case both General Westmoreland and CBS actually desired television. It is certain that neither would dare object. Finally, the fear of seeming to oppose television will likely induce parties to avoid making any of the arguments against it in a particular case.
The decision-making process of a case-by-case approach, therefore, is one in which the claim for television will almost always seem strong and the arguments against it will usually be unstated and always speculative. In practice, a case-by-case approach leaves a trial court to choose between allowing television or assuming a position as its sole adversary, and a largely uninformed one at that.. The de facto result of the case-by-case approach may thus be very similar to a de jure rule allowing television in every case where demonstrable reasons for individual privacy do not exist. Even though it purports to respond to the apprehensions about television reflected in the various actions of the Judicial Conference and in the Canons, the case-by-case approach might in practice give them no weight whatsoever.
It is not, of course, a certainty that a case-by-case rule is unworkable or that it will quickly evolve into a strong presumption in favor of television. However, a reasonable belief that the potentially undesirable effects of television cannot be detected, or detected in a timely fashion, on a case-by-case basis is enough to justify a per se rule as a legitimate time, place and manner regulation. Telecasting of ongoing proceedings is only one of many methods of reporting to the public on judicial actions, and arguably no better a method than others so far as conveying that information is concerned.3 If telecasting is thought to impinge on the adjudicatory process in an undesirable fashion and a per se rule is necessary to guard against such undesirable effects, Rule 7 passes constitutional muster.
. In addition to the disagreement recounted in the text, I would dismiss so much of the present matter as purports to be an appeal from what is treated as a ruling of the Board of Judges of the Southern District. Whether individual litigants should be accorded special rulings by that Board with regard to waiver of Local Rules is not for me to comment upon other than to say that such a ruling is not an appealable judgment. Attacks on the validity of local rules can and should be heard by a district court which will in due course issue a judgment. To the extent that a Board of Judges issues decisions other than the promulgation of local rules, those decisions also must be challenged in a district court. The suggestion that decisions by the Board may be appealed under 28 U.S.C. § 1291 is one that we, and any Board of Judges adventurous enough to respond to requests from individual litigants, will come to regret.
. The district court made much of the fact that sensationalism is not an element here, as it might be in other cases such as a murder trial. Op. at 19-20. Curiously, in doing so Judge Leval made arguments that seem to undercut the supposed need for live television. He disposed of any sense of immediacy by declaring that the extended analysis by historians and commentators might be a more important reason for filming the trial than the verdict itself. Filming solely for historical purposes with no prospect for broadcast as news implicates different issues, however, and is not before us.
. The arguments marshalled by CNN as to television’s superiority as a medium for reporting judicial proceedings are based on live, daily, gavel-to-gavel coverage of an entire trial. The relief CNN seeks, however, is the right to televise, including video recording, when it chooses to do so and to broadcast as much or as little as it chooses.