Newsreporters appeal their commitment of six months imprisonment for contempt of the District Court in refusing to obey its direction to answer questions of the prosecuting counsel when called to the stand as witnesses under subpoena in a civil contempt trial. They urge vacation of the judgment on the ground that it has deprived them of the protection of a qualified privilege vested in them by the First Amendment, to gather news and so inform the public on matters of public concern.
The rationale of their argument is that if a reporter is compelled to testify to what he has observed or heard while present at a rally or meeting of persons assembled to discuss problems peculiar to their interests, but also of general concern, then thereafter, in retaliation, the sponsors of the occasion will in all probability bar them from later gatherings. The consequence will be injurious to the rank and file of the people, we are told, through their losing such advantages as might accrue to them from this information- — that the upshot is an abridgement of the Amendment’s guarantee of “freedom of speech, or of the press.”1
The District Judge was sensitively solicitous of the reporters’ claims, evincing his solicitude in repeated offers of suspension of the impending penalty if the appellants would break their silence. He endeavored in every way consistent with his sense of bounden obligation to uphold the sovereignty of a Federal court decree and yet accord them leniency in their predicament. He was unsuccessful in his efforts. In the confrontation the appellants again and again avowed with unquestionable sincerity, their innocence of any contempt, the while religiously seeking absolution through the creed of freedom of the press. It was not defiance of authority, but rather a steadfast fidelity to a precept of their profession.
Our resolution of his clash of convictions of minds and consciences is to grant the prayer of the reporters, but on grounds less than their assertions. In this we do not devalue the stature of the Court’s order, for *375it is evident that the District Judge was prompted solely by principle, after application and industry of study and thought. Indeed, it appears that he believed he had no other course. Our decision is by way of an accommodation of the two conflicting persuasions.
Now emphasized and repeated is that our determination is limited to the circumstances of this case. Among others, notably, it does not contemplate the contingency of the reporter being the sole or only competent witness to an incident. To begin with, it is conceded that the reporters had not acquired their knowledge through confidential communications. Further, the information could have been adduced for the Court through the testimony of any of many others. Our conclusion does not accord a privilege, absolute or qualified, to the reporter. Actually it is a privilege of the public. Its interest calls here for restraint in the judicial laying on of sanctions.
Decision now is but the product of a balancing of two vital considerations: protection of the public by exacting the truth versus protection of the public through maintenance of free press. The first consideration could have been accomplished without obstructing fulfillment of the latter — by relieving the reporters, on their protest, of their predicament and calling for testimony from others not similarly situated. Weighing in the scales in favor of this solution is its avoidance of unnecessary incurrence of any potential danger of sterilizing the sources of newsworthy items. Moreover, this course would, we feel, square with the Judge’s understandable conception of his duty, for the search of the Court for the truth will not be thwarted.
To make these decisions we have steered by the terms and tenor of the highest court’s pronouncements in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).2 A recital of the facts will provide an expository background for our holdings. At the suit of the Kanawha Coal Operators Association the Federal District Court in Charleston, West Virginia, on August 21, 1975, issued a temporary restraining order against the United Mine Workers of America, District 17, designed to prevent continuation of a wildcat strike. While the order was in effect, on August 24, 1975, in a union rally members Bruce Miller and Louis Delano purportedly advocated prolongation of the strike. A hearing, civil in nature, was held before the District Judge, September 8, 1975, to ascertain whether Miller and Delano had breached the Court’s decree.
Appellants Andrew Gallagher and Richard Steelhammer, as reporters for the Charleston Gazette, had attended the rally and were summoned as witnesses to testify to the events they had observed, seen or written of at the contempt trial. Failing in attempts to quash the subpoenas, both of them refused to give evidence in response to interrogation by the prosecuting counsel, although they acknowledged that no confidences sealed their lips. The District Judge on September 8, 1975 adjudged them “in contempt of Court and [that they] will be held until further order of the Court, not to exceed six months.”
An adjudication and sentence upon contempt was entered in compliance with the provisions of F.R.Crim.P. 42(a) prescribing the requisites therefor. The accused contemnors, as heretofore noted, declined to cleanse themselves despite the Court’s several invitations for them to do so. Meanwhile several other journalists had responded to the same questions that Gallagher and Steelhammer had refused to answer. These are the whole facts and they are not in dispute.
*376In argument before us mention was made of mootness of this case. It came about in discussion of whether the contempt charged to the appellants was criminal or civil. They averred it to be civil, and that since the citations against the strikers, i. e. Miller and Delano, were not still pending, no opportunity remained for them to absolve themselves. Hence, they insist, their conviction is no longer outstanding. Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). The pros ecution disagrees. It characterizes the proceeding as criminal, relying on Shillitani’s explanation that a criminal contempt judgment may also include like interim redemption conditions as in civil contempt. Indeed, it is said, pursuit initially of a civil contempt course is favored. Id. at 371, fn. 9, 86 S.Ct. 1531; United States v. Wilson, 421 U.S. 309, 316, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). Seemingly, too, in either type of contempt the Court may appoint counsel to prosecute it, and here the United States Attorney was designated to do so. Frank v. United States, 384 F.2d 276 (10 Cir. 1967), aff'd 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 and rehearing denied 396 U.S. 869, 90 S.Ct. 34, 24 L.Ed.2d 123.
Finally, it is clear we shall not have to classify the contempt: whatever the category we conclude that the controversy is not moot. All parties desire this conclusion, too, because in the locality and industry of this dispute, a like kind of difficulty is altogether likely to arise from time to time with some frequency and, indeed, even among the same or similar actors. We agree. To invoke the doctrine of mootness would mean that the controversy would be “capable of repetition, yet evading review.” Vide: Nebraska Press Ass’n, et al. v. Stuart, Judge, et al, - U.S. -, 96 S.Ct. 2791, 49 L.Ed.2d-(June 30, 1976); Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Accord: Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1969); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
The judgments of contempt will be
VACATED.
. First Amendment: “Congress shall make no law . . . abridging the freedom of the press . . . .” A coordinate safeguard is written in the Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . .
. Because this case does not involve judicial ban on publication of court proceedings or, as noted supra, involve a reliance by the reporters upon a right to protect confidential sources of information, no discussion is now included of the opinion of the Supreme Court in Nebraska Press Ass’n, et al. v. Stuart, Judge, et al.,U.S.-, 96 S.Ct. 2791, 49 L.Ed.2d-(1976) or of its denials of certiorari in Rosato v. Superior Court of Fresno County,-U.S.-, 96 S.Ct. 3200, 48 L.Ed.2d- (1976) and Farr v. Pitchess, - U.S. -, 96 S.Ct. 3200, 49 L.Ed.2d- (1976).