dissenting.
I dissent.1
The majority evades the real issue in this case for superficial reasons unfamiliar to me in a legal sense: first, they maintain that because there was no record kept of the chamber discussions preliminary to the closed hearing which was reported, the reported proceeding should be impounded; secondly, they assert that the Justice of the Peace had no standards to follow because this court had set none, and therefore she had no discretion to abuse.
What was not reported but should have been is not available. There is available a transcript of the actual hearing. It is the material which has been reported and recorded on tape that the petitioners seek to have released. This court can act only upon what is in existence in the situation before us. If the closure order turns out to be ill-conceived because the justification for closure did not materialize, then no reason exists to keep secret what did transpire and is available.
Section 1-30-102, W.S.1977, provides:
“The writ [Mandamus] can only be issued by the supreme court or the district court. It may require an inferior tribunal to exercise its judgment or to proceed to discharge any of its functions but it cannot control judicial discretion.” (Bracketed material supplied.)
That section is an adoption of the common law. It does not authorize an abuse of discretion; the majority misconceives its meaning. It does not authorize an inferior tribunal to act arbitrarily or willy-nilly under the guise of discretion — to abuse discretion. The great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused, if the facts otherwise justify the issuance of a writ of mandamus. 55 C.J.S. Mandamus § 73, p. 128. Judicial discretion never authorizes arbitrary action that tends to defeat the ends of justice. If the action of a judge amounts to an abuse of discretion, there is no other available remedy and the exigency is such as to justify interference under the superintending power of the higher court, then mandamus to compel proper action should be taken. 52 Am.Jur.2d, Mandamus, § 311, p. 639.
LeBeau v. State, Wyo.1963, 377 P.2d 302, cited by the majority does not involve a higher court mandating a lower court nor does it deal with abuse of discretion. The legalistic phrase “abuse of discretion” is not as harsh as the word “abuse” might seem to relate. It does not infer any reflection *329upon the judge charged with abuse, nor carry with it any implication of conduct deserving censure. It is but a strict legal term used to indicate that the appellate court is simply of the opinion that there was the commission of an error of law under the circumstances, Eager v. Derowitsch, 1951, 68 Wyo. 251, 264, 232 P.2d 713; Puterman v. Puterman, 1949, 66 Wyo. 89, 205 P.2d 815. It is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. In other words, the evidence before this court must show that the conclusion of- the acting agency was wrong and unreasonable. Howard v. Lindmier, 1950, 67 Wyo. 78, 214 P.2d 737. And that is exactly the situation we here confront.
It is a singularly and innovative approach that the majority now utilizes which is not in keeping with our usual lack of hesitancy not only to point out but to correct errors of justice or any other court, even where we have not fixed precise standards. It appears that the majority’s compassion for lack of knowledge and an absence of teaching by this court is now a ground for af-firmance. While I can understand an expression of sympathy, it has never before stood in the way of rectifying error. Dealing with new and difficult questions does not relieve any court of the responsibility of proper disposition. Appellate courts are available to correct erroneous conclusions and that is what this court should do in the proceeding before it.
I cannot find in the majority opinion any indication that this court, in camera, listened to the bail bond proceeding tape. The court prefers to rest upon the basis of what it did not hear. We did listen to the taped recording, and I was frankly amazed at its innocuity. I had prepared a transcript of the proceeding in order to examine each word and phrase in its totality. I conclude we have in our hands a tempest in a teapot. In my examination of the transcript, I found only two statements out of several pages that could, under any standard, be considered as jeopardizing the defendant’s fair trial rights; and they were not the proper subject matter of a bail bond hearing. I would require that the entire transcript be released.
I think we can and must assume that representations were made at the unreported conference that the bail bond hearing would disclose evidence which would jeopardize the fair-trial rights of the defendant. This is justified under Standard 8-3-2, Fair Trial and Free Press of Standards Relating to the Administration of Criminal Justice, an American Bar Association project, which the majority adopts. I would point out that the cited standard is an amended version of the original, and is only tentative and not finally approved. It was adopted as a tentative suggested standard in the summer of 1978, as a result of the influence of Nebraska Press Ass’n v. Stuart, infra. My experience is that such tentative standards do not become final for about one year. That standard may undergo some changes when the Supreme Court of the United States hands down its decision in Gannett Co., Inc. v. DePasquale, 1977, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, cert. granted 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387, orally argued in November 1978, 47 L.W. 3325, cited by the majority, which should meet head on the issue of closure of pretrial proceedings.2
In any event, assuming that the ABA Standard is the last word, this court does not follow it. Getting back to the reported hearing or conference, whatever it was, the record may be sealed only if:
“(i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and *330“(ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”
What are the reasonable alternative means? The majority does not mention them. The commentary to the standard does:
“. . . The standard does not enumerate possible procedural alternatives, but the effectiveness of the following should receive serious consideration: (1) continuance, (2) severance, (3) change of venue, (4) change of venire, (5) intensive voir dire, (6) additional peremptory challenges, (7) sequestration of the jury, and (8) admonitory instructions to the jury.8”
Footnote 8 to the quotation points out that the Supreme Court of the United States in Nebraska Press Ass’n v. Stuart, 1976, 427 U.S. 539, 562-565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683, 701, discussed several of those measures. I will discuss their imperative significance later. At this juncture, I only assume that the respondent Justice of the Peace considered those alternatives. She had available information as to their importance in Nebraska Press Ass’n, published in 1976, and was as charged with the responsibility of considering that case as is this court.
Whatever was represented to the Justice of the Peace in the unreported conference to justify closure certainly is not reflected in the actual closed reported hearing. There is not only no “clear and present danger” to a fair trial, but also there is no indication that the information even need be considered in connection with the alternatives, though I have done so with respect to the two questioned sentences.
In Nebraska Press Ass’n, the Supreme Court left open issues relating to the validity of closing pretrial proceedings with the consent of the defendant. This indicates that there probably are identifiable differences between restraints on those in attendance at open hearings and closure of access to court proceedings. In some instances there probably are differences, such as adoption proceedings, § 1-22-104, W.S.1977, proceedings under the Juvenile Court Act, §§ 14-8-10 et seq., W.S.1977, and proceedings pursuant to the Uniform Parentage Act, § 14-7-111, W.S.1977, where privacy of personal matters and other social consideration justify such action. I have no doubt but that some extreme situations will require very limited closure in criminal cases. Anno., Exclusion of public during criminal trial, 48 A.L.R.2d 1436 and Later Case Service. For the moment, I am willing to accept the American Bar Association Standard as suitable, when properly applied. However, it does not carte blanche license closures.
There are at least three federal constitutional questions that come into play and collide with each other when we undertake a consideration of court closure: First Amendment, “. . . [1] freedom . of the press . . protected by the Fourteenth Amendment; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and [2] public trial, [3] by an impartial jury .” also protected by the Fourteenth Amendment. (Bracketed material and emphasis supplied.) The Wyoming Constitution expresses those rights in a somewhat different fashion. The words “freedom of the press” do not appear but are embraced by § 20, Art. I, Wyoming Constitution, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right . . . .” The matter of a public trial is covered by § 8, Art. I, Wyoming Constitution, “All courts shall be open . . . ” and the right to an impartial jury appears in § 10, Art. I, Wyoming Constitution, “. . . the accused shall have the right . . . to a speedy trial by an impartial jury . . . .” Whether we speak in terms of the Constitution of the United States or the Constitution of the State of Wyoming, we can say with a reasonable degree of assurance that the rights granted substantially parallel each other.
As pointed out in Nebraska Press Ass’n, the authors of the Bill of Rights did not undertake to assign priorities as between First and Sixth Amendment rights, ranking *331one as superior to the other; and the court declined to rewrite the constitution by undertaking to do so. I question the position of the majority in the case now before us when it attempts the job of “delicate balancing of the public’s right of access to information on the one hand, and the defendant’s right to a fair trial on the other.” I cannot see that it has balanced anything but has weighted the scales in favor of the defendant’s right to a fair trial by refusing to even consider the effect of the material appearing in the reported proceeding.
In the Nebraska Press Ass’n case, the Supreme Court made it clear that the record was devoid of any showing that alternative measures would not have protected the defendant or even that such alternative measures were considered. There is likewise such an absence here. The Court then summarized its reasons for reversal of the prior restraint order by stating that the record before it
“. . . it is not clear that further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court. We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary. Nor can we conclude that the restraining order actually entered would serve its intended purpose. Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require.” 96 S.Ct. at 2807.
The majority sees a difference between a “prior restraint” which restricts publication “in the possession of the press” and restriction from “access” by closure. I see very little, if any, difference between not letting the news media into the courtroom, and permitting them to watch and listen but telling them they cannot publish what they see and hear. However said, prior restraint or closure muzzles a free press.3
I am attracted to the verities expressed in the separate concurring opinion of Justice Brennan. After stating that the right to a fair trial and the right of freedom of the press secure equally fundamental rights, he describes the important role of the press in the jurisprudence of this country. Through paraphrasing and the omission of citations, there available, I think his expression is worthy of repeating as consistent with my views and which I am satisfied ought to form the backdrop for the disposition of this ease.
A responsible press has always been regarded as the “handmaiden” of effective judicial administration in the criminal field. The press not only publishes information about trials, but protects the administration of justice by subjecting police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Commentary on and reporting about the operation of the criminal justice system is at the core of First Amendment values of preserving the integrity of that system and is crucial to citizens concerned with government. Secrecy of judicial action breeds ignorance and distrust of courts and suspicion concerning the confidence and impartiality of judges. Free reporting, criticism and debate contribute to a public understanding of the rule of law and a comprehension of the criminal justice system. It also improves the quality of that system by subjecting it to the cleansing effect of exposure and public accountability; sunlight has a disinfecting quality. The Sixth and First Amendments cannot be subordinated, one to the other.
*332Restraints are, in fact, censorship; and our distaste for censorship arising from the attitude of a free people is deeply written into our law. . A free society prefers to punish the few who abuse rights of speech rather than to throttle them, and all others, beforehand. The risks of freewheeling censorship are formidable. Any system of restraints of expression comes to the court' bearing a heavy presumption against its constitutional validity.
The effect of pretrial publicity on prospective jurors is at best speculative, and there are devices available for screening from jury duty those individuals who have in fact been exposed to prejudicial pretrial publicity. When we start down the path of speculative censorship, judges at all levels are being interjected inappropriately as censors of material having an unknown effect. The incentives and dynamics of the system of prior restraints will inevitably lead to over-employment of the technique. It seems particularly true that in order to minimize pretrial publicity against a client and prevent ineffective-assistance-of-counsel claims, counsel for defendants might routinely seek such restrictive orders. Prosecutors would often acquiesce in such motions to avoid jeopardizing a conviction on appeal. And although judges can readily reject many such claims as frivolous, there would be a significant danger that judges would nevertheless be predisposed to grant the motion, both to ease their task of insuring fair proceedings and to insulate their conduct in the criminal proceeding from reversal.
Further, there is the specter of floodgates of litigation that would be a drain on the media, if they elected to contest every restraint. Economic concerns alone would discourage exercise of the right to contest even blatantly unconstitutional restraints. As a result, newspapers and other media would avoid crime coverage, with concomitant harm to the public’s right to be informed of such proceedings. As in this case, judicial review is often inadequate, since the delay inherent in judicial proceedings destroys contemporary news value of the information the press seeks to disseminate.
United States v. Cianfrani, 3rd Cir. 1978, 573 F.2d 835, involves more than the majority recognizes. It deals specifically with the question of closure. Even though the defendant had entered a plea of guilty or nolo contendere and parts of the record had already been released, the court still dealt with the question in spite of the termination of the underlying prosecution because parts of the record were still sealed — hidden from public view; furthermore, the court concluded that a controversy capable of repetition would evade review if not considered, citing Nebraska Press Ass’n v. Stuart, supra, 427 U.S. at 546-547, 96 S.Ct. at 2797, 49 L.Ed.2d at 690, in which the lower court’s restraints had expired by their own terms upon selection of a jury. The Supreme Court
“. . . recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).” (Footnote omitted.)
The court in Cianfrani comprehensively discussed the constitutional aspects of the “public trial” provision of the Sixth Amendment as reflecting both the traditional American distaste for secret hearings and a restraint on the possible abuse of judicial power:
“. . . publicity is ‘of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.’ Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975). Every criminal prosecution raises important questions not only about the activities of the accused, but also about the conduct of the police, the prosecution, and the court in the carrying out of public business. And where the prosecution is of a powerful politician for abuse of his public office, the already strong public *333interest in observing the proceedings is enhanced.” 573 F.2d at 848.
In the case before us, there are compelling reasons to open the proceeding to the public because, according to the open record, the defendant is a high ranking law enforcement officer charged with the murder of another law enforcement officer. It is more important than ever that unusual care be taken to keep the public informed of proceedings at every stage because the integrity of law enforcement and the judicial system is particularly at stake and the public’s business.
Any decision to exclude the public from access to the proceedings must be made, mindful that “justice cannot survive behind walls of silence,” Sheppard v. Maxwell, 1966, 384 U.S. 333, 349, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613.
The Cianfrani court held that
“. . . any order of exclusion must extend no farther than the circumstances strictly warrant in order to meet the asserted justification for closure. United States v. Ruiz-Estrella, 481 F.2d 723, 725 (2d Cir. 1973). Thus, only that portion of the public may be excluded for only that portion of the proceeding that the court finds to be strictly and inescapably necessary to protect the interests asserted by the defendant in support of his motion to close a hearing subject to the public trial requirement.”
The court then proceeded to agree that some protection against disclosure was warranted but, with the exception of material protected under a federal statute,4 the transcript of the rest of the proceeding should have been ordered released. That is the precise point I make here. There are two sentences in the transcript that might be considered prejudicial but they were not even proper for a bail bond proceeding, and they referred only to an affidavit that was never offered nor became a part of the record. In my estimation, any effect they might have on the public could well be disposed of by the alternatives available, for example, change of venue, vigorous voir dire and admonitory instructions to the jury. “[PJretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.” Nebraska Press Ass’n v. Stuart, supra, 427 U.S. at 554, 96 S.Ct. at 2800, 49 L.Ed.2d at 695.
The majority opinion in Nebraska Press Ass’n in its discussion of the alternatives is worthy of setting out in full:
“Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious approval in Sheppard v. Maxwell, 384 U.S., at 357-362, 86 S.Ct. 1507, 16 L.Ed.2d 600, 6 Ohio Misc. 231, 35 Ohio Ops.2d 431: (a) change of trial venue to a place less exposed to the intense publicity that seemed imminent in Lincoln County; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors, as Mr. Chief Justice Marshall used in the Burr case, to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Sequestration of jurors is, of course, always available. Although that measure insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors’ oaths.
“This Court has outlined other measures short of prior restraints on publication tending to blunt the impact of pretrial publicity. See Sheppard v. Maxwell, 384 U.S., at 361-362, 86 S.Ct. 1507, 16 L.Ed.2d 600, 6 Ohio Misc. 231, 35 Ohio Ops.2d 431. Professional studies have filled out these suggestions, recommending that trial courts in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone. See American Bar Association Project on *334Standards for Criminal Justice, Fair Trial and Free Press 2-15 (Approved Draft 1968).
“We have therefore examined this record to determine the probable efficacy of the measures short of prior restraint on the press and speech. There is no finding that alternative measures would not have protected Simants’ rights, and the Nebraska Supreme Court did no more than imply that such measures might not be adequate. Moreover, the record is lacking in evidence to support such a finding.” (Footnotes omitted and emphasis supplied.)
Likewise, in the case before us there is no finding or evidence such as that required. The best evidence of this is the harmless material actually elicited at the hearing.
The petitioners, in the important matter before us, are at a terrible disadvantage. They do not have available the tapes or a transcript. The court has set aside the usual adversary process which is the heart of the judicial function whereby all sidés of the question are permitted to be argued. Petitioners cannot express their views as to how prejudicial any part of the secret hearing might be. They are asked to just trust that the court will do the right thing. We had better be right. It is for that reason, “. . . any claim of practical justification for a departure from the constitutional requirement of a public trial must be tested by a standard of strict and inescapable necessity.” United States, ex rel. Bennett v. Rundle, 3rd Cir. 1969, 419 F.2d 599, 607.
While counsel for the petitioners, under pressure from the court, may have agreed in oral argument that the tapes could be sealed until the close of the trial, my view is that counsel was agreeable only if they contained matter falling within the strict provisions of the American Bar Association Standard, which he did not have before him.. I would not hold him to any agreement, under the circumstances.
After having received the transcript, I could not possibly be a party to a decision to close an empty treasure chest. This expensive litigation has stirred up unnecessary conjecture. It would have been much more satisfactory for the respondent to have played back the tapes to the news media after the hearing disclosed neither material of a nature that “would present a clear and present danger to the fairness of the trial,” nor of such doubtful prejudicial effect that prejudice could not “be avoided by any reasonable alternative means.” Since it was not done at that level, I would correct the error and mandate release.
. I agree with some of the holdings of the majority. Mandamus is the more appropriate remedy and the court may consider the filing of such and grant it even though a writ of prohibition has been requested. For the reasons stated in the majority opinion, future proceedings such as this should be brought first before the appropriate district courts, pursuant to Rule 16, Rules of the Supreme Court. I would also acknowledge the supervisory jurisdiction of this court over Justices of the Peace pursuant to § 2, Art. V, Wyoming Constitution but would add that final authority to do so must come from the legislature. Section 5-4-207, W.S. 1977, implements the constitutional provision: “The supreme court of Wyoming is hereby vested with supervisory powers over the justice courts of the state of Wyoming . . . .” Any further agreement with any views expressed in the court’s opinion will be covered as appropriate.
. I also question the finality as authority of Philadelphia Newspapers, Inc. v. Jerome, 1978, 478 Pa. 484, 387 A.2d 425, because there is presently pending in the Supreme Court of the United States a jurisdictional statement under that title, case No. 78-155 praying that if the Supreme Court consider the appeal improvidently taken (See Philadelphia Newspapers, Inc. v. Jerome, 1978, 434 U.S. 241, 98 S.Ct. 546, 54 L.Ed.2d 506) that the jurisdictional statement be considered as a petition for certiorari. At the time of this opinion, the Supreme Court had not yet acted in that regard.
. In CBS, Inc. v. Young, 6th Cir. 1975, 522 F.2d 234, the district court restrained all parties to the litigation, their relatives, close friends and associates from discussing the cases in any manner whatsoever with members of the news media or the public. The circuit court held it constitutionally impermissible and issued a writ of mandamus. The court used the term “prior restraint” to describe the prohibited access.
. Title III of the Omnibus Crime Control and seq. Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et