(dissenting). I agree with the majority that a presumption of openness attaches to a hearing under sec. 968.02, Stats. Open government is a significant and powerful check on the potential for abuse of power by any branch of government, including the judiciary. The vitality of democracy is *521dependent upon an informed citizenry. The public does, indeed, have a “right to know.”
That right to know, however, must always be balanced against equally compelling considerations involving individual rights. The legislature, in enacting the open meetings law, recognized that balance when it created certain exceptions to presumptively open governmental meetings that involve “the investigations of charges against specific persons . . . which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person . . . involved in such problems or investigations.” Section 19.85 (1) (f), Stats. Similarly, this court has recognized that balance in providing that a judicial proceeding may be closed only for substantial and compelling reasons. State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 340 N.W.2d 460 (1983).
When individuals of high visibility and public stature are involved in the criminal system, there is always concern among the general public that those people will be accorded privileged treatment.1 This privileged treatment must not be allowed to happen. People of prominence, of high public visibility, are entitled to no more protection than anybody else. But in our efforts to assure that, we must also be mindful that they are entitled to no less. I conclude that an open hearing under the circumstances presented here would provide less protection to the accused than that to which they are entitled. Given the fundamental unfairness of the one-sided procedures mandated by the statute, along with the intensity of the publicity and the interest of the public that this hearing will generate statewide, I conclude that the accused’s rights to a fair trial, if charged, will be *522gravely imperiled; if they are not charged, the damage to their privacy and reputational interests will be enormous. Therefore, I conclude that while a sec. 968.02, Stats., hearing is presumptively open, this particular hearing must be closed to the public.
The proposition that the procedures of a sec. 968.02, Stats., hearing offend basic notions of fairness can hardly be disputed. The protections that our adversarial system provide for determining truth are notably absent: the accused has no right to be heard in any manner. The accused has' no right to testify, no right to call witnesses, no right to present evidence, no right to cross-examine the accuser, no right to counter any false allegations. The unfairness of the absence of the right to be heard is magnified by the lack of restraints on the accuser. The accuser, in a public forum, is unrestrained by the normal constraints of our laws of libel and slander. That is because the testimony in a public proceeding such as this is privileged under the law. Bergman v. Hupy, 64 Wis. 2d 747, 750-54, 221 N.W.2d 898 (1974).
That the accusations of the accuser, be they true or false, libelous or not, will be reported statewide in excruciating detail in all the media, cannot be denied. This case has already generated intense media interest. It has all the ingredients of a Sidney Sheldon best-seller: sex, booze, an exotic-dancer, professional football players. The reporting of the accuser’s allegations will not just be confined to the immediate area of the offense; it will be statewide. Unfortunately for the accused, however, it will be the accuser’s uncontradicted accusations, bereft of the benefit of cross-examination and counter evidence, that will be read, heard and seen by the citizens of the entire state. Normally, a change of venue can protect an accused from the effects of extensive pretrial publicity. But where can these accused go, after this, for *523an impartial jury if they are subsequently charged and tried? The majority correctly points out that the law requires impartial, not ignorant jurors. Page 511. However, the one-sided publicity that this hearing will produce can hardly result in impartial jurors. Potential jurors around the state will certainly have knowledge of the complainant’s version of the offense; unfortunately, it will be the type of knowledge that our normal adversarial process would never allow.
But now consider the alternative scenario: that after this public hearing and resultant publicity the judge decides that formal charges are not justified and therefore will not be filed. Given the nature of the charges here, it will be small consolation to the accused and their families that, as the majority states, “they will finally be free of the accusation of having committed a crime.” Page 513.
As the majority rightly points out, the accused’s reputations have already been significantly besmirched. That is not a sufficient justification, however, to allow this besmirching to continue, if anything, it is reason to stop it, before there is complete devastation, economic and personal, to the accused and their families. To this point, the public has not been subjected to just the one-sided accusations of the accuser. Although there has been substantial publicity, many newspapers and other media have not disclosed the names of the accused. An open hearing will end all of that. If there is merit to the complainant’s charges, this will all come out eventually; if there is no merit to her charges, the accused deserve the little privacy and reputational interests that are still left to them and their families.
In sum, the procedures provided for in the statute are offensive to basic notions of fundamental fairness. Whether or not these procedures are violative of constitutional guarantees is a question that has not yet been *524presented to this court. Meanwhile, the legislature could appropriately address the fairness of the procedure, not by closing the hearing, but by allowing a more balanced public hearing. The value of a proceeding which provides a check on the prosecutor’s decision to refuse to file a charge is evident. Clearly the complainant in this case is entitled to have the district attorney’s charging decision put before judicial scrutiny. The legislature can easily accommodate the interests of the accuser with those of the accused by providing greater procedural safeguards in this proceeding.
The accused, because of their public prominence, are entitled to no more protection than anybody else. They are, however, entitled to no less. I conclude there are substantial and compelling interests present that go directly to the fundamental rights that we all enjoy. The principles of the majority opinion will apply not only to the unnamed accused in this case, but to anybody in the future who might find themselves accused of a crime by someone who asserts before a judge, after a district attorney has turned them down, that he or she has been criminally wronged. That should give everyone pause. Accordingly, I dissent.
This case involves two highly visible professional football players. It could, in a future case, involve highly visible employers, supervisors, public officials, clergy, business men, business women, etc., etc., etc.