OPINION CONCURRING IN DENIAL OP LEAVE TO FILE APPELLANT’S MOTION FOR REHEARING
CLINTON, Judge.Applicant complains the Court on original submission misread Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) [hereafter Branzburg ] in refusing to recognize the constitutional necessity for a balancing of First and Sixth Amendment interests in cases such as this; he argues that this refusal, in turn, results in adoption of an “absolutist position” which denies the existence of any First Amendment privilege of journalists to decline to reveal unpublished material.
I agree that our opinion on original submission may have been hasty in concluding that the Branzburg plurality “quite clearly found that no balancing was required;” however, the balancing test advocated by applicant today is virtually identical to that advanced by Justice Stewart in dissent in Branzburg, a position which was quite clearly rejected by five members of the Supreme Court.
As I read Branzburg, the “balancing” endorsed by the plurality and Justice Powell is more in the nature of weighing considerations relevant to a motion to quash a subpoena within the context of First vis-a-vis Sixth Amendment concerns: whether a grand jury investigation is instituted or conducted in good faith; whether subpoenas are issued, not for legitimate purposes of law enforcement, but to instead harass the press or disrupt a reporter’s relationship with news sources; consideration of the propriety, purposes, scope of the judicial proceeding and the pertinence of the evidence sought; etc.
But applicant would read Branzburg to require this criminally accused, before seeking to exercise a Sixth Amendment right to compulsory process in order to prepare a defense to the accusation, to show (1) she has “exhausted alternative sources” for what is revealed in applicant’s subpoenaed photographs; (2) she has “a compelling need for” them; and, (3) that the photos are “highly relevant to the defense.”
I simply do not read into Branzburg any such test, much less any allotment of that burden on a party to a criminal prosecution. On the contrary, the concurring opinion observed that such a rule would,
“as a practical matter, defeat ... a fair balancing and the essential societal interest in the detection and prosecution of crime would be heavily subordinated.”
408 U.S. at 710, 92 S.Ct. at 2671.
Moreover, in Branzburg, the Court’s majority specifically refused to accord any privilege whatever to journalists to choose not to even appear when summoned by lawful subpoena.1 Further, a majority of the Court was not persuaded that the litigants claiming a right to protect confidential sources had demonstrated any intolerable burden on news gathering or other clear First Amendment rights.2 And the plurality discussed at some length the well *741recognized limitations on the press demonstrating that the First Amendment is not absolute in its operation.3
While many of the issues advanced in applicant’s motion for rehearing are provocative, important and deserving of serious consideration by this Court in a proper context, I do not perceive that they are presented by the facts of the instant case. As I understand those facts, the applicant was assigned by The Dallas Morning News to photograph a protest demonstration outside the Dallas Power and Light offices in downtown Dallas. Applicant took photographs of the demonstration as well as the arrest and removal of certain demonstrators, including Mavis Belisle. Belisle was subsequently charged with a penal offense, obstructing a public passageway, and sought applicant’s testimony, and later, his photographs, for her trial. Applicant’s refusal to make his photos available to Belisle for purposes of crossex-amination forms the basis of this contempt proceeding.
In declining to recognize a newsman’s unqualified right to refuse to reveal confidential sources under the three fact situations presented in Branzburg, the plurality stated:
“On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”
408 U.S. at 690-691, 92 S.Ct. at 2661-2662.
From this record one cannot perceive any certain burden on news gathering that might result from requiring the applicant here to turn over photographs which may exonerate a person criminally accused, and which applicant took in a public place apparently accessible to the public at large. Neither do I read applicant’s motion for rehearing to argue that his evidence established any such realistic burden.
If the Court’s opinion on original submission is limited, as it clearly states it is, to the “narrow question” presented by the facts, damage to the First Amendment cannot be seriously read into it. It is therefore appropriate to reiterate here the concluding paragraph of Justice Powell’s concurring opinion in Branzburg:
“In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”
408 U.S. at 710, 92 S.Ct. at. 2671.
Such legitimate interests are simply not presented today.
Therefore I concur in the Court’s denial of leave to file.
. As I understand the dissenting positions in Branzburg, the “balancing” criteria advocated by our applicant here would place the three burdens discussed ante on the State or accused before the journalist in question would be required to even appear pursuant to a subpoena.
. The Court observed that the facts of the cases did not implicate recognized First Amendment concerns such as intrusions upon speech or assembly, prior restraint or restriction on publication; express or implied command that the press publish what it prefers to withhold; exaction or tax for publishing privilege; penalty, civil or criminal, related to the content of published material; restriction on use of confidential sources; any requirement that the press *741publish its sources of information or indiscriminately disclose them on request.
. The plurality mentioned, for example, that the press may not circulate knowing or reckless falsehoods damaging to private reputation; the First Amendment does not guarantee the press a constitutional right of special access to information not available to the general public; the press is regularly excluded from grand jury proceedings, court conferences, meetings of official bodies and private organizations; newsmen have no constitutional right to access to the scenes of crime or disaster when the public is excluded and may be prohibited from attending or publishing information about criminal trials in order to assure the fairness of the proceeding.