concurring in the judgment.
I agree that the district court’s order prohibiting the defendant Star Telegram from disclosing plaintiff’s identity is overly broad and therefore invalid. I am unable to join in the Court’s opinion, however, which is also overly broad. Accordingly, I concur only in the judgment.
The question in this case is whether a trial court may issue a protective order prohibiting the participants in a lawsuit from disclosing information which they obtained from public sources. The Star Telegram first learned that plaintiff had been the victim of a sexual assault from the police report filed on the incident. Plaintiff does not contend here that there was anything illicit about the way the Star Telegram first acquired information about her identity. Plaintiff does not deny that the Star Telegram knew of her identity apart from any discovery conducted in this case. Thus, this case is unlike Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), which upheld a protective order limiting disclosure of information obtained solely through discovery. The protective order in this case limits disclosure of information regarding plaintiff’s *59identity even though that information was obtained from a public source and not through discovery.
This Term we held a similar order invalid in Davenport v. Garcia, 834 S.W.2d 4. That decision governs this case. The Court continues to insist that the Texas Constitution is its exclusive authority, and that it used article I, section 8 “to create a test” for the validity of gag orders. The Court persists in mischaracterizing federal law concerning gag orders as “unsettled” and in ignoring the fact that the test it “created” is identical to the test this “unsettled” law prescribes under the First Amendment. That test is set forth in Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (en banc), aff'd on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), and is derived from the several decisions of the United States Supreme Court on which it relies. Nevertheless, whether the First Amendment test is applied directly or borrowed for application under the Texas Constitution, the result is the same: the order in this case is overly broad. It limits disclosure of information regarding plaintiff’s identity to defendants’ attorney, personnel in his firm, the individual defendants and one other employee of the Star Telegram, plaintiff's attorney, and certain named persons in his firm. The order prohibits disclosure of plaintiff’s identity to anyone else, even to potential witnesses.1
*60Because one of the participants in the litigation out of which this original mandamus proceeding arises is a newspaper, the Court discusses at some length issues concerning the rights of the press which we carefully did not address in Davenport. The Court analyzes three decisions of the Court of Criminal Appeals as they bear upon the rights of the press, and refers repeatedly and expansively to those rights as: “the press’ constitutionally sanctioned right of access to the judicial process”, ante, at 56; “the press’ right to publish public information properly obtained from open records”, ante, at 57; “the right of media access to information disclosed at trial”, ante, at 58; “the press’ right to publish information gleaned from the judicial process”, ante, at 57; “the right of the press to report and the right of the public to receive information obtained through public sources”, ante, at 58; and “Texas’ longstanding commitment to a free press and the broad dissemination of information to our citizens”, ante, at 58. The rights of the press have nothing to do with this case in which the Star Telegram is like any other litigant. Indeed, relators include individual employees of the Star Telegram who are also subject to the court’s order and seek the same relief for the same reasons. The Court’s references to the rights of the press are entirely dicta.
The Court also states: “Ensuring the secrecy of the information covered by the order is in no way essential to ensuring a fair trial in this instance.” Ante, at 57 (emphasis added). Plaintiff may take issue with this statement. She argues that she is unable to pursue this litigation as vigorously as she might because of the fear that the Star Telegram will publish more information about her. This fear is not sufficient, in my view, to justify the court’s broad protective order. It is not completely inconsequential, however, as the Court seems to suggest.
I agree with the Court that the trial court abused its discretion in issuing the order, and the Star Telegram has no adequate legal remedy. The attorney for the Star Telegram stated to the trial court that he did not think the newspaper would publish plaintiff’s identity. This statement is not so positive and unequivocal as to estop the Star Telegram from seeking relief from the order by mandamus, or to deprive this proceeding of a justiciable controversy. I therefore join with the Court in conditionally issuing our writ of mandamus.
.The order states in pertinent part:
1. “Plaintiffs Identity” for the purposes of this Order, is defined to include Plaintiffs name, Plaintiffs home address. Plaintiffs home telephone number, Plaintiffs social security number, Plaintiffs Texas Driver’s License number, Plaintiffs occupation, Plaintiffs employer, Plaintiffs employer’s address, Plaintiffs employer’s telephone number, the Texas license number of Plaintiffs automobile,
2. Plaintiffs Identity will be disclosed to ... "Defendants’ counsel"....
3. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs Identity to only those Defendants named in Plaintiffs suit....
4. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs Identity to only the personnel associated with his firm.
5. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs Identity to only the following personnel associated with Defendant The Star Telegram, Inc. d/b/a Fort Worth Star Telegram, specifically Robert Fitzpatrick.
6. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs identity to only those persons named in Paragraphs 3, 4 and 5 of this Order, who have consented to be bound by this Order and who have executed a consent form to that effect.
7. The Defendants named in Paragraph 3 of this Order, Defendants’ counsel, those members of his firm named in Paragraphs 4 of this Order, and the personnel associated with Defendant The Star Telegram, Inc. d/b/a Fort Worth Star Telegram named in Paragraph 5 of this Order, will keep Plaintiffs Identity strictly confidential by not disclosing Plaintiff’s identity, through either act or omission, to any person or entity not bound by this Order.
8. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by maintaining the files and documents related to this suit with access to the documents limited to those persons specifically named in Paragraphs 3, 4 and 5 of this Order who have consented in writing to be bound by this Order.
9. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by not filing any discovery documents with the Court, including but not limited to, interrogatories, requests for production or admissions, deposition transcripts, pleas, pleadings or motions.
10. Defendants’ counsel will keep Plaintiffs Identity strictly confidential by removing Plaintiff s Identity from any and all documents to be filed with the Court, including but not limited to, interrogatories, requests for production or admissions, deposition transcripts, pleas, pleadings or motions.
11. ... "Plaintiffs counsel" will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs Identity to only the following personnel associated with his firm, specifically Mark Haney, Mabel Murphy Simpson, Jack Conner, Gary Jeter, Kathy Lawson and Debra Wooten.
12. Plaintiffs counsel will keep Plaintiffs Identity strictly confidential by disclosing Plaintiffs identity to only those persons named in Paragraph 11 of this Order, who have consented to be bound by this Order and who have executed a consent form to that effect.
13. Plaintiffs counsel and those members of his firm named in Paragraphs 11 of this Order will keep Plaintiffs Identity strictly confidential by not disclosing Plaintiffs identity to any person or entity not bound by this Order.
14. Plaintiffs counsel will keep Plaintiffs Identity strictly confidential by maintaining the files and documents related to this suit with access to the documents limited to those persons associated with his firm who are named in Paragraph 11 of this Order, and who have consented in writing to be bound by this Order.
15. Plaintiffs counsel will keep Plaintiffs Identity strictly confidential by not filing any *60discovery documents with the Court, including but not limited to, interrogatories, requests for production or admissions, deposition transcripts, pleas, pleadings or motions.
16. Plaintiff’s counsel will keep Plaintiffs Identity strictly confidential by removing Plaintiffs Identity from any and all documents to be filed with the Court, including but not limited to, interrogatories, requests for production or admissions, deposition transcripts, pleas, pleadings or motions.
17. Counsel may not disclose the identity of Jane Doe to potential witnesses, but may determine if the witness knows her true identity.