concurring, in part, and dissenting in part and joining in the judgment.
I concur in the holding of the majority that there is no evidence that this order was served upon any party against whom a contempt citation issued. For me, however, that is the end of this case. I am of the opinion that we should not proceed further, especially by way of dicta, into the hallowed ground of First Amendment jurisprudence. Simply put, there can never be prior restraint without restraint in the first instance. In this case, that did not come to pass.
I am also disturbed by the fact that the parties, with the apparent concurrence of the trial justice, disregarded our order and produced a set of “stipulated facts” with*352out affording the trial justice an opportunity to reach the only possible conclusion in this case — outright dismissal. Of course, dismissal would not have resulted in the pronouncements this Court makes today; it would have assigned this case to the graveyard of dismissed cases.
This Court granted certiorari and remanded this case to the trial justice with directions to conduct an evidentiary hearing and issue findings of fact on four specific questions, all related to notice and service of process. The bottom line in this case is that no one accused of contempt was served with the order or otherwise made subject to its terms. That is the end of the inquiry, and the trial justice, following the evidentiary hearing we ordered, should have so declared.
I am not alone in my reluctance to pronounce as dicta important holdings respecting the First Amendment; the state did not brief or otherwise address the issues discussed in Part II of the majority opinion. The United States Supreme Court has stressed:
“[I]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not pass on questions of constitutionality * ’ *' * unless such adjudication is unavoidable.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)).
In this case, I am of the opinion that the constitutional issue is not only avoidable, it is nonexistent — no one was restrained in this case. Because, as the majority declares, issues concerning “prior restraint on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” see Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and we have never before been confronted with this precise issue, I am of the opinion that we should leave this discussion for another day. I respectfully disagree with the majority’s conclusion that these constitutional issues “lie just below the surface” or that “the likelihood of their presenting themselves again is great.” A case concerning the prior restraint of the press has never before floated to the top of our jurisprudence, and I prefer to wait until the hook is firmly in the mouth of a justiciable controversy before venturing into the deep water. I believe that this Court timely and appropriately responded to the glaring (and fatal) defects in the state’s efforts to have these petitioners found in contempt and have every confidence, if called upon to do so in a proper case, we will rise to the occasion. Consequently, I dissent.
EXHIBIT A
STATE OF RHODE ISLAND
SUPERIOR COURT
PROVIDENCE, SC.
IN RE: COURT ORDER DATED OCTOBER 22, 2003
M.P. No. 2003-6006
CONSENT ORDER
In accordance with the Rhode Island Supreme Court’s Order dated January 9, 2004, in the matters captioned In re: Court Order Dated October 22, 200S, M.P. Nos.2003-613 and 2003-614, petitioners The Providence Journal Company (the “Journal”), its employee, reporter Karen A. Davis (“Davis”), WLNE-6 and its employees, reporter Josie Guarino (“Guarino”) and cameraperson “Jane Doe” (now identified as Tara Baxter) (“Baxter”), and respondent, the State of Rhode Island, by and through their counsel, and with the *353Consent of this Court, submit the following stipulated facts:
1. The criminal action, captioned State v. Charles Pona, P1/02-2571-AG, was scheduled for trial on October 20, 2003 before Judge William Dimitri. At the request of defendant’s counsel, James A. Ruggiero, the trial was continued to October 27, 2003.
2. At Judge Dimitri’s direction, all motions just prior to and during trial were to be filed with him rather than in the Superior Court Clerk’s office. From at least October 20, 2003 through jury verdict on November 14, 2003, the criminal file and docket were at all times maintained in the chambers of Judge Dimitri.
3. On October 22, 2003, the State, through Assistant Attorney General Ronald Gendron (“Gendron”), presented a Motion to Ensure Safety of Witnesses (the “Motion”) to Judge Dimitri. The Motion was presented to Judge Dimitri in chambers and was not received by nor entered into the criminal docket by any clerk of the Superior Court.
4. There being no objection to the Motion by defense counsel, Gendron advised Judge Dimitri of the same in chambers on October 22, 2003, and requested Judge Dimitri to act on the Motion. Judge Dimi-tri advised Gendron that he would grant the Motion, and directed that Mr. Gendron prepare an order to that effect. There was no stenographer or clerk present in chambers when the Motion was presented and considered, and there was otherwise no recording of such matters considered in chambers.
5. Later on the same day, October 22, 2003, Gendron returned to meet with Judge Dimitri in chambers and presented an order granting the Motion (“the October 22, 2003 Order”). The October 22, 2003 Order was signed by Judge Dimitri in chambers. There was no stenographer or clerk present in chambers when the Order was presented, considered and signed, and there was otherwise no recording of such matters considered in chambers. Judge Dimitri’s designated clerk received the signed Order on that day and placed the same in the criminal file, which remained in Judge Dimitri’s chambers throughout the trial and verdict.
6. A single copy of the October 22, 2003 Order was made by Judge Dimitri’s designated clerk and provided to Gendron on October 22, 2003.
7. None of the individual petitioners nor anyone from the Journal or WLNE received notice of the Motion and/or the chambers conferences that led to the entry of the October 22, 2003 Order by Judge Dimitri.
8. There were no open court proceedings that led to the entry of the October 22, 2003 Order. None of the individual petitioners nor any one from the Journal or WLNE was aware of or present at the chambers conferences when the Motion was presented and when the October 22, 2003 Order was entered.
9. Prior to the entry of the October 22, 2003 Order, petitioners were not given an opportunity to argue to the court why the Order should not be entered and/or applied to them.
10. Aside from the single copy of the October 22, 2003 Order provided to Gen-dron, Judge Dimitri’s designated clerk did not reproduce the October 22, 2003 Order or provide anyone with a copy(ies) of the same:
11. Copies of the October 22, 2003 Order were distributed by Judge Dimitri on or about October 30, 2003, to some members of the media who were informally assembled in Judge Dimitri’s courtroom. *354The distribution of the October 22, 2003 Order did not take place during a court session, but rather took place off the record and while Judge Dimitri was not on the bench. Neither Guarino nor Baxter was present nor did they receive a copy of the October 22, 2003 Order at that time. At least one reporter covering the trial on behalf of WLNE received a copy of the October 22, 2003 Order from Judge Dimi-tri, but did not forward the October 22, 2003 Order to Guarino or Baxter or advise them of the October 22, 2003 Order. Davis was present when copies of the October 22, 2003 Order were distributed by Judge Dimitri but did not receive a copy.
12.The courtroom was open to the public and to the media with cameras when the trial started on October 30, 2003. At no time during the course of the trial, up through November 5, 2003, did Judge Dimitri orally order petitioners or any other media representatives to refrain from engaging in the activities identified in the October 22, 2003 Order, nor was the October 22, 2003 Order or its content referenced in any way on the record, in open court, by Judge Dimitri, the prosecutors, or defense counsel through November 5, 2003.
13. Subsequent to the entry of the October 22, 2003 Order, and up through November 5, 2003, petitioners did not argue to the court why the Order should not apply to them. During that time, neither Guarino nor Baxter were aware of the existence of the October 22, 2003 Order.
14. On November 6, 2003, Judge Dimi-tri prohibited any further camera coverage of the trial.
ENTERED as an Order of this Court on the 8th day of Sept., 2004.