concurring.
I join in the Chief Justice’s opinion for the Court. Because of the contemporary prominence of issues concerning secrecy in court proceedings, it seems worthwhile in a few words to draw attention to the significance of points that in the public discussion of these issues are easily overlooked or misunderstood. One is the extent to which some aspects of constitutional liberty in this federal nation rest on the independent importance of state constitutional guarantees. Another is that issues of secrecy in court proceedings are confined neither to criminal proceedings nor to some special aspect of freedom of the press.
In modern times the impression probably has become widespread that a question of constitutional law is not settled until the United States Supreme Court settles it, and that it cannot be settled differently from that Court’s decision. That is half true. It is true only when a state denies someone a right guaranteed by the United States Constitution. It is not true when a state’s constitution provides more or stronger guarantees than the national minimum. This is such a case.
As the Court’s opinion sets forth, Oregon’s Constitution guarantees the open and visible administration of justice, not only honest and complete and timely justice, but justice that can be seen to be so during and after the event. In the words of article I, section 10:
*287"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
Since the beginning of statehood in 1859, this guarantee has appeared in the Bill of Rights between the guarantees of freedom of expression, article I, section 8, and the special rights of persons accused of crime, article I, section 11. Freedom of expression, in Oregon, does not single out the professional press. In article I, section 8, it is phrased as follows:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”1
It assures reporters and editors, along with any other observer or interested citizen, the freedom to discuss what they know, or think they know, or surmise, or advocate, without fear of sanctions beyond civil damages for private harm. See Wheeler v. Green, 286 Or 99, 117-119, 593 P2d 777 (1979). But this unrestrained freedom to speak, write, print, and express opinions "on any subject whatever” is not itself an "Open, Sesame” to public offices, or records, or other information. It does not give journalists a constitutional claim to the information which it gives them the freedom to publish. That they are left to get for themselves.
*288It would do freedom of inquiry, of reporting, and of comment a great disservice to equate it with a general or public right to information, for there is much that government may legally keep undisclosed. If the press claimed a right to demand whatever information it has a right to publish, it would soon have a right to publish only that which it has a right to demand. But the constitutional freedom to speak and write is far wider than "the public’s right to know,” and no one who cares about the one would want it measured by the other.
In short, a guarantee against censorship does not itself serve as a public meeting or public records act.2 The rights of the press and others under article I, section 8, like the rights of an accused under article I, section 11, are guarantees of personal freedom against oppressive governmental power. Article I, section 10, plays a different role. It is one of those provisions of the constitution that prescribe how the functions of government shall be conducted. One somewhat parallel provision is the command of article IV, section 14, that the deliberations of the legislative houses and all their committees shall be open, a provision which also guarantees a public process rather than private rights. There it concerns openness in making law for the future. Here it is the judicial function, that function which brings the law to bear on individuals and puts the generalities of policy to the test of the concrete case.
How this is done, and whether it is done according to law, "without purchase, completely and without delay,” in the words of article I, section 10, has public importance beyond the preferences of the parties to the case. This, at least, is the view that shaped our constitution. Thus the command that "justice shall be administered openly” is not one within the dis*289posal of the parties or the court.* *3 Nor is the public importance of visibility in the administration of justice confined to the administration of criminal justice. There it serves to assure accountability for the charge not prosecuted, the reduced plea accepted, the evidence used or not used, and particularly to forestall suspicion that political considerations entered a case behind closed doors. See, e.g., United States v. Cianfrani, 573 F2d 835 (3d Cir 1978) (on defendant’s motion to close proceedings in a prosecution for misuse of public office); Welch v. United States, 371 F2d 287, 290 (10th Cir), cert den 385 US 957, 87 S Ct 395, 17 LEd2d 303 (1966) (referring to defendant’s motion to hear witnesses in chambers).4
However, we need few reminders that the public importance of openness is not so limited. In recent memory, the efforts to censor the New York Times, the Washington Post, and the Progressive magazine were civil cases. In the Pentagon Papers case, the government went to extraordinary lengths to involve the courts in issuing judicial orders on secret evidence.5 That would not be possible in an Oregon *290court. In retrospect James Madison might perhaps regret that he did not think it necessary to include in the United States Constitution a text on open courts as well as a First Amendment.
It is obvious, for reasons of space alone, that a guarantee of open courts does not guarantee any one person a "right” to be present. Justice is nonetheless openly administered when one or another person is for good cause prevented from attending. Of course, those admitted or excluded may not be selected for their view of the case at issue, as is reported about trials in some other countries. Nor could it be consistent with this guarantee to exclude anyone who may later disclose that which is being "openly administered.” In any event, if the constitutional freedom to speak and write adds anything to article I, section 10, it is the right not to be selectively excluded on the ground that one may intend to exercise that freedom.
With these additional comments, I concur in the opinion of the Court.
Compare U S Const amend I: "Congress shall make no law . . . abridging the freedom of speech, or of the press ...,” and see Stewart, "Or of the Press,”26 Hast L J 631 (1975); Nimmer, Introduction — Is Freedom of the Press a Redundancy: What Does it Add to Freedom of Speech? 26 Hast L J 639 (1975); Lange, The Speech and Press Clauses, 23 UCLA L Kev 77 (1975).
This court has repeatedly held that article I, section 8, applies before and independently of any issue under the first amendment, so as to invalidate spending limits on political campaigning, Deras v. Myers, 272 Or 47, 535 P2d 541 (1975), punitive damages in defamation cases, Wheeler v. Green, 286 Or 99, 117-119, 593 P2d 777 (1979), and laws which as written are directed against speech or expression that may under any circumstances be constitutionally privileged, State v. Spencer, 289 Or 225, 611 P2d 1147 (1980).
See ORS 192.410 - 192.690.
Some states have reached similar results under other provisions of state law, e.g. Shiras v. Britt, 267 Ark 97, 589 SW2d 18 (1979); Keene Publishing Corp. v. Cheshire County Superior Court, 119 NH 710, 406 A2d 137 (1979). The Supreme Court of Pennsylvania recently reached a different conclusion under that state’s constitution, which provides that "all courts shall be open.” Commonwealth v. Hayes, 489 Pa 419, 414 A2d 318 (1980). Whether or not a provision so phrased should be construed to mean no more than that the courts will be open to litigants, such a construction is impossible for our provision that "justice shall be administered openly.” A Virginia decision allowing a closed trial is currently on review in the United States Supreme Court, presumably because the Virginia courts found nothing in the law of that state to the contrary. Richmond Newspapers, Inc. v. Virginia (Va S Ct, Jul 9, 1979), appeal docketed 48 LW 3178 (No. 79-243, 1979 Term), jurisdiction pending oral arguments LW 3241, oral argument 48 LW 3553 (1979).
There has also been speculation that the Watergate scandal might not have been uncovered if reporters had not been able to attend the bail hearing for the suspects initially caught in the Watergate burglary, see Zion, High Court vs. The Press, NY Times, Nov 18, 1979 (Magazine) at 145.
See United States v. New York Times Co., 328 F Supp 324, 326, aff'd, 403 US 713, 91 S Ct 2140, 29 L Ed 2d 822 (1971); S. Ungar, The Papers & The Papers 164-203.