(concurring in part and dissenting in part).
I concur in the majority opinion insofar as it holds that the District Court’s order denying defendant’s motion for summary judgment is not appealable. I would hold, however, that the District Court’s order requiring the disclosure of the names of anonymous and confidential news sources is subject to immediate review by mandamus.
In Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert, denied, 409 U. S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973), we held that the use of confidential news sources by the press is protected by the First Amendment — that “to compel a newsman to breach a confidential relationship merely because a libel suit has been filed against him would seem inevitably to lead to an excessive restraint on the scope of legitimate news gathering activity.” Id. at 993, n. 10. We stated:
“ * * * [T] o routinely grant motions seeking compulsory disclosure of anonymous news sources without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles that underlay the line of cases articulating the constitutional restrictions to be en-grafted upon the enforcement of State libel laws. * * * ”
Id. at 993 (Footnote omitted.).
The disclosure of such sources is appropriate only if the plaintiff makes a “concrete demonstration that the identity of defense news sources will lead to persuasive evidence on the issue of malice.” Id. at 994. To this limited extent, our Court has recognized a qualified jounalist privilege under the First Amendment. The defendant argues that the disclosure 'of the informants’ names sought here will substantially impair the rights recognized in Cervantes.
In cases in which comparable information deserving special protection has been ordered disclosed, some courts have deemed the order a “final one,” subject to immediate review under 28 U.S.C. § 1291. Fears v. Burris Manufacturing Co., 436 F.2d 1357 (5th Cir. 1971) (government records); Carr v. Monroe Manufacturing Company, 431 F.2d 384 (5th Cir. 1970), cert, denied, 400 U.S. 1000, *130391 S.Ct. 456, 27 L.Ed.2d 451 (1971) (government records); Covey Oil Company v. Continental Oil Company, 340 F.2d 993 (10th Cir. 1965) (trade secrets) . Other courts, including this one, have held that such orders are subject to immediate appellate review through mandamus or other extraordinary writ. Bristol-Myers Company v. Honorable Miles W. Lord, United States District Judge, etc., et al., Nos. 73-1284, 73-1285 (8th Cir. May 31, 1973) (attorney-client communication) ;1 Pfizer, Inc. v. Lord, 456 F.2d 545 (8th Cir. 1972) (attorney-client communication); Metros v. United States District Court for Dist. of Colo., 441 F.2d 313 (10th Cir. 1971) (name of anonymous source for issuance of search warrant); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d by an equally divided Court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971) (attorney-client communication); United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966) (name of anonymous complainant to Secretary of Labor). But, see International Business Machines Corporation, etc., et al. v. United States of America, 480 F.2d 293 (en banc) (2nd Cir., 1973), rev’g International Business Machines Corp. v. United States, 471 F.2d 507 (2nd Cir. 1972). These opinions either expressly or impliedly reject the notion that an acceptable alternative to immediate appellate review is to hazard a contempt citation and then to seek review if one is found in contempt.
In Pfizer, the District Court ordered the disclosure of information allegedly protected by the attorney-client privilege. We held that immediate review was available under mandamus, stating:
“ * * * We are persuaded, rather, that the claim of privilege asserted by petitioners involves a ‘really extraordinary’ question, and we agree with the following observation from the opinion of the Seventh Circuit Court of Appeals in Harper & Row Publishing Co. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970):
“ ‘ . . . [Bjeeause maintenance of the attorney-client privilege up to its proper limits has substantial importance to the administration of justice, and because an appeal after disclosure of the privileged communication is an inadequate remedy, the extraordinary remedy of mandamus is appropriate.’
“That decision was affirmed without opinion by a divided Supreme Court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971). Cf. Hartley Pen Co. v. United States District Court, 287 F.2d 324 (9th Cir. 1961). Due consideration of all aspects of this discovery order, in light particularly of possible consequences which review on appeal might prove inadequate to remedy impels us to hold that mandamus is an appropriate vehicle for review of the question raised by the present petition.”
Pfizer, Inc. v. Lord, supra, 456 F.2d at 548.
The present case is an even more compelling one than Pfizer for the exercise of our mandamus jurisdiction. First, as in Pfizer, appeal after disclosure would not be an adequate remedy to protect the asserted privilege. Disclosure of an informant’s name is an irreversible act. Once such disclosure occurs,' any subsequent appeal is futile, and the defendant in effect loses -the opportunity to present to this Court its assertion that the disclosure violates those First Amendment rights which we recognized in Cervantes. And since the anonymous informer has disclosed the names of individuals allegedly involved in organized *1304criminal activity, there is the risk that he will be subjected to physical violence or other reprisals.
Second, this ease involves interests protected by the First Amendment which deserved permanent protection. Immediate review will enable this Court to discharge its responsibility to insure that no greater disclosure of news source is ordered than is essential to protect the plaintiff's interest in the protection of his reputation.
Third, in oral argument before this Court, both parties expressed the opinion that the disclosure of news sources is irrelevant to the present cause of action.2
Finally, since the order to disclose sources is addressed to a former employee of the defendant, it would appear that the defendant is powerless to prevent him from disclosing the news sources rather than hazarding being found in contempt. The defendant is unable to choose contempt rather than disclosure and is, thus, “ ‘powerless to avert the mischief of the order’ ” unless allowed immediate appellate review. United States v. Doe, 455 F.2d 753, 757 (1st Cir.), vacated sub nom. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), quoting from Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 62 L.Ed. 950 (1918).
For the foregoing reasons, this Court should exercise its mandamus jurisdiction and reach the merits of the defendant’s claim. If we did so, it would be necessary to reverse the District Court’s order in view of the concession that the names of the anonymous news sources are irrelevant and in view of the failure of the plaintiff to make a concrete demonstration that the identity of the news sources will lead to persuasive evidence on the issue of malice.
. In Bristol-Myers Company v. Honorable Miles W. Lord, United States District Judge, etc., et al., Nos. 73-1284, 73-1285 (8th Cir. May 31, 1973), this Court took jurisdiction under mandamus and denied relief on the merits.
. This concession was not made before the District Court.