dissenting.
I.
The question in this ease is whether a court may prohibit publication of all or part of a transcript of an in camera rape shield hearing where the transcript was inadvertently released to the media by trial court personnel. In my view, two striking facts about this case make it obvious that the prior restraint issued by the district court is an unconstitutional violation of the freedom of the press guaranteed by the First Amendment. First, most of the private details of the alleged victim’s sexual conduct around the time of the alleged rape, which is also the subject matter of the confidential hearings in this case, are already available through public court documents and other sources and have been widely reported by the media. Second, the media did nothing wrong in obtaining the transcripts. Under well-established prior restraint doctrine, these two factors alone require this Court to direct the district court to vacate its order immediately.
The majority holds that the interests protected by the rape shield statute are compelling enough to overcome the heavy presumption against the constitutionality of a prior restraint. To reach this holding, the majority overemphasizes the importance of the state interest at stake here and virtually ignores the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish.
In a case such as this, where truthful information of public importance is lawfully obtained by the media, a prior restraint may only be issued where publication will inevitably, directly, and immediately harm a state interest of the highest order. This does not mean that if the interest the state asserts is compelling in the abstract the government may issue a prior restraint to protect it. Rather, the government must prove that in the particular circumstances of a given case, the threat to a government interest is so great, so grave, and so certain that it cannot be protected by any means other than a prior restraint. If publication of the information in question does not pose an immediate threat, a prior restraint amounts to nothing more than government censorship.
Because the district court did not make any specific findings indicating what harm it sought to prevent by issuing the order, I can only assume, as does the majority, that the court meant to protect the interests implicated by the rape shield statute. Even making the debatable assumption that these interests are state interests of the highest order, and that a threat to these interests could in the appropriate circumstances warrant abridging the freedom of the press, in this case the order cannot protect the alleged victim from the harm the district court sought to prevent. The media, both mainstream and electronic, has widely disseminated intimate, personal, and inflammatory information about the alleged victim. For example, based on information obtained from several public court filings, the media have reported: the details of the alleged victim’s sexual activity during the few days surrounding the alleged rape; the contents of the defendant’s pleadings, which contain his factual theories regarding why this evidence is relevant to his consent defense and therefore why it should be admitted at trial; and the prosecution’s counter-arguments about why this evidence is not probative. Much of the information presented at the rape shield hearing, and most of the legal theories argued at the hearing, are already available to the public and have been reported in the mainstream and electronic media. Given this particular set of circumstances, the interests served by the rape shield statute cannot be protected by the lower court’s order.
The only objective that could be accomplished by the district court’s order is to protect the confidentiality of this in camera hearing. That duty was our responsibility, which we unfortunately failed to carry out. Having failed, we, the judiciary — the government — cannot now order the media to per*640form the role that we were obligated, but failed, to do — to protect the privacy interests of the alleged victim. Nonetheless, the majority approves the court’s power to prevent the dissemination of speech which the court deems dangerous or offensive. In doing so, the majority authorizes the court, rather than the media, to determine what can or cannot be published concerning truthful information regarding a matter of public importance.1 The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids. The appropriate standard for deciding the validity of the prior restraint in this case was best articulated by Justice Potter Stewart who said: “Though government may deny access to information and punish its theft, government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 849, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (Stewart, J., concurring). That need is not present here.
For all of these reasons, I respectfully dissent.
II.
The majority employs a wide range of legal authority, some of which is relevant to prior restraint law and some of which is not, to analyze the district court’s order. In doing so, the majority fails to come to grips with the fundamental theme of the First Amendment’s prohibition against prior restraints: no matter how compelling, lofty, or noble the state interest, a prior restraint may not be issued to protect it unless there can be absolutely no doubt that great, grave, and certain harm will be done to that interest as a result of publication. The right of the press to publish truthful, lawfully obtained information may not be abridged for speculative harms; nor may a reviewing court’s approval of a prior restraint be based on conclusory determinations that harm might ensue from publication. See N.Y. Times v. United States, 403 U.S. 713, 725-26, 91 S.Ct. 2140, 29 L.Ed.2d 822 (Brennan, J. concurring); United States v. Noriega, 917 F.2d 1543, 1549 (11th Cir.1990).
Because prior restraints are so strongly disfavored, the United States Supreme Court has avoided developing a rigid test to evaluate their propriety. Instead, prior restraint doctrine requires exacting, case-by-case review to determine whether a state interest of the highest order will undoubtedly suffer great, grave, and certain harm as a result of publication. See, e.g., Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979); N.Y. Times, 403 U.S. at 726-27, 91 S.Ct. 2140 (Brennan, J., dissenting); Neb. Press Assn. v. Stuart, 427 U.S. 539, 562-65, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Under this standard, the Supreme Court has never found a threat to a state interest of the highest order sufficient, in and of itself, to justify a prior restraint.2
For example, in Nebraska Press, extensive pre-trial publicity about a murder in a small town threatened the defendant’s Sixth Amendment right to be tried before an impartial jury, a right the Court characterized as “fundamental to the American scheme of justice.” 427 U.S. at 553, 96 S.Ct. 2791. The Court did not, however, conclude its analysis by holding that the abstract threat posed to that right justified a prior restraint. In*641stead, the Court held the prior restraint invalid because the lower court failed to show that the pre-trial coverage of the murder made it impossible to impanel an impartial jury. Id. at 569, 96 S.Ct. 2791.
In In re Charlotte Observer, the interest in the secrecy of grand jury proceedings, which has long been considered a governmental interest of the highest order, along with an attorney’s reputational and privacy interests, were jeopardized when the name of the attorney who was a target of the investigation was inadvertently revealed in open court by a federal judge. 921 F.2d 47, 50 (4th Cir.1990) (citing Fed.R.Crim.P. 6(e)(3)(C) and Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)). Nevertheless, the Fourth Circuit did not hold that a violation of the government’s interest in the secrecy of grand jury proceedings or of the attorney’s reputational interests, in the abstract, justified a prior restraint. Nor did the court find that the harm to the attorney’s reputation would be magnified by the fact that an Article III judge, in the course of an official court proceeding, revealed that the attorney was under investigation. Rather, the court held that once the name had been revealed in open court, the government’s interest in preserving the secrecy of the grand jury proceedings was lost. Id. at 50; cf. Fla. Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (risk of harm to rape victim’s right to privacy not sufficient to support civil damages award against media where information was lawfully obtained); Daily Mail, 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (threat to privacy interests of juvenile offenders did not warrant punishing newspapers that published offenders’ names in violation of a state statute where names were lawfully obtained); Landmark, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (risk of injury to judge, system of justice, and operation of judicial inquiry commission not sufficient to warrant sanctioning the media for publishing truthful, lawfully obtained information); Okla, Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (state statute prohibiting publication of names and photographs of juvenile offenders could not be upheld by a prior restraint where such information had already been widely disseminated).
I now turn to the rape shield statute and the state interests it advances and examine whether the prior restraint issued by the district court can in fact protect these interests.
III.
Colorado’s rape shield statute, § 18-3-407, 6 C.R.S. (2003), protects the privacy of a victim of sexual assault by ensuring that intimate details of his or her sexual history are not revealed in a public trial unless a court determines that this evidence is relevant to a material issue in the case. The statute also protects a defendant’s right to a fair trial by allowing a defendant to introduce such evidence in the appropriate circumstances. The in camera proceeding created by the rape shield statute concerns admissibility of evidence, in particular whether the evidence the accused seeks to admit is relevant and material to the issues in the trial.
This statute was enacted to provide victims of sexual assault “greater protection from humiliating and embarrassing public ‘fishing expeditions’ into their past sexual conduct, without a preliminary showing that evidence thus elicited will be relevant to some issue in the pending case.” People v. McKenna, 196 Colo. 367, 371-72, 585 P.2d 275, 278 (1978). The General Assembly believed that providing such protection would encourage victims to report sexual assault by ensuring that they would “not be subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.” Id.
Of course, as an abstract matter, protecting victims of sexual assault from the embarrassing ordeal of unnecessarily exposing the details of their sexual history in open court is an important government interest, as is encouraging victims of sexual assault to report the crime. However, the abstract importance of these interests cannot, on their own, justify the prior restraint issued in this case. Rather, this Court must determine whether, under the circumstances of this case, the *642district court’s order will protect the alleged victim from precisely these harms.
The majority’s analysis, however, overemphasizes the abstract importance of the purposes served by the rape shield statute and minimizes the impact that the information already available to the public about this alleged victim’s past sexual conduct has on the alleged victim’s privacy interests, at least insofar as they are protected by the rape shield statute.
I read the majority’s opinion to assume that the public has access to a vast amount of information about the alleged victim’s private sexual history. The majority characterizes this information as a mixture of “fact, conjecture, rumor, and unconfirmed assertions that a person might not make under oath.” Maj. Op. at 636. What the majority finds troubling is that many of these same details will be reported in the form of sworn testimony if the confidential transcripts are released to the media. By focusing on the form of the information rather than the content, the majority presumes that grave harm and “injustice” will be done to the alleged victim, which has not already been done by the extensive reporting of the underlying sexual assault case.
I disagree. This conclusion is at odds with standard prior restraint doctrine. The harm that could have been prevented by the prior restraint has already occurred, and, because this harm has occurred, the heavy presumption against the constitutionality of a prior restraint has not been overcome.
Prior restraint law is not concerned with how information will be received. Rather, it is concerned with whether an order preventing publication of truthful, lawfully obtained information will in fact prevent harm from occurring in the first place. The only harms that the prior restraint could prevent in this ease are protecting the alleged victim from humiliation as a result of unnecessary disclosure of her private sexual history and encouraging future victims to report sexual assaults. See McKenna, 196 Colo. at 371-72, 585 P.2d at 278.
Turning to the information available to the public, it seems undeniable to me that the damage to the alleged victim’s privacy interests has already been done in this case. The majority, through its sanction of the order not to publish, seeks to protect the alleged victim from embarrassing revelations about her private sexual conduct, but “that cat is out of the bag.” See Charlotte Observer, 921 F.2d at 50. Through court filings and interviews with the alleged victim’s associates, the media have reported on topics related to the evidence considered at the rape shield hearing and the purposes for which the defense seeks to admit that evidence. In an article concerning the media’s attempts to publish the transcripts at issue here, the Denver Post reported:
The transcripts are from a hearing June 21-22. Portions that were closed dealt primarily with arguments about the accuser’s sexual activity in the days surrounding her encounter with Bryant last summer, and money given her by a state victims’ compensation program.
Bryant’s attorneys claim she had multiple sexual partners in the days surrounding the encounter and have suggested her injuries could have been caused during sex with someone other than Bryant.
They also say she received unusually large amounts of money from the compensation program, suggesting it was an incentive to go forward with the case.
Jon Sarche, Media Seek Court OK for Publication of Bryant Transcripts, Denver Post, July 7, 2004.
The county court’s order finding probable cause to proceed with the prosecution, which is available to the public, indicates that DNA samples taken from the alleged victim’s body and from the underwear she wore to the sexual assault examination contained semen that did not match the defendant’s DNA profile, and that pubic hair obtained during the examination did not match that of the defendant. Other publicly available pleadings describe the defense’s factual theories about how the DNA evidence advances the defendant’s consent defense and why it should be admitted at trial. Both television and internet media have reported in detail the prosecution’s theory of how DNA evidence from a person other than the defen*643dant was found on the alleged victim’s body. See, e.g., Could Evidence be Lethal to Prosecution Case? at http://celebrityjustice.war-nerbros.com/news/0403/02a.html.
In addition to the mainstream media, several websites have been devoted to following the underlying sexual assault ease, and many of these provide highly personal and potentially harmful details about not only the alleged victim’s sexual history but also her medical and mental health history. These websites are easily accessible to any computer user with minimal research skills.
Privacy interests fade once they are a matter of public record. See Cox Broadcasting Cow v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Therefore, from my perspective, I reluctantly conclude that the facts available to the public have irretrievably compromised this alleged victim’s privacy interests, at least insofar as they can be protected by the rape shield statute. So much is known about the victim’s sexual history and the nature of the evidence presented at the confidential rape shield hearing that preventing dissemination of the transcript cannot protect the victim from public exposure of “humiliating and embarrassing” details of her sexual history. Along these same lines, the state cannot salvage its interest in encouraging future victims to report sexual assaults by restraining publication of the transcripts in this case. Because this case has generated such intense media scrutiny, which in turn has lead to the release of voluminous details about the alleged victim’s private sexual, medical, and mental health history, the damage done to this state interest is irreversible.
I sympathize with the majority’s desire to offer some assurance that the alleged victim will not be subject to further unnecessary harm from invasive and even at times mean-spirited revelations about her private life. But as a court, our sole task is to determine whether this case presents one of those extraordinary circumstances where the harm to a state interest is so great and so sure to occur that the freedom of the media to publish what it sees fit, free from government interference, may be abridged. Prior restraints are not meant to mitigate harms that have already occurred. They are meant to be issued only to prevent great, grave, and certain harm.
Because the prior restraint issued in this case can accomplish nothing more than preventing, at best, incremental harm to the interests protected by the rape shield statute, I conclude that the district court has not overcome the heavy presumption against the constitutionality of prior restraints. The facts of this case are not so extraordinary that we as a court can overlook the fundamental importance of the media’s right to decide for itself what it may or may not publish.
The Supreme Court has repeatedly recognized that the media, not the government, must decide whether lawfully obtained information should be released to the public: “If the constitutional protection of a free press means anything, it means that government cannot take it upon itself to decide what a newspaper may and may not publish.” Landmark, 435 U.S. at 849, 98 S.Ct. 1535 (Stewart, J., concurring). “Once the government has placed [confidential] information in the public domain, ‘reliance must rest upon the judgment of those who decide what to publish or broadcast.’ ” Fla. Star, 491 U.S. at 538, 109 S.Ct. 2603 (quoting Cox Broadcasting, 420 U.S. at 496, 95 S.Ct. 1029 (1975)). “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” N.Y. Times, 403 U.S. at 717, 91 S.Ct. 2140 (Black, J., concurring).
I do not disagree with the majority’s contention that the alleged victim in this case “is entitled to rely on the protective provisions of the rape shield statute, which the state affords her ... in a sexual assault prosecution.” Maj. Op. at 636. I do, however, disagree with the proposition that once the confidentiality of the rape shield statute has been breached to the extent that it has in this case, the state may require the media to do what the state failed to — give the alleged victim the protections afforded by the statute. It is the responsibility of the government, not the media, to protect information *644that lies within its control. See Fla. Star, 491 U.S. at 534-35, 109 S.Ct. 2603. When the government loses control of confidential information in its possession, either through deliberate leaks or inadvertent error, the government may not require the media to take over the state’s responsibility except in highly unusual circumstances which are not present here.
At this point, we, in our capacity as representatives of the government, have lost our ability to determine whether it best serves the public to maintain the confidentiality of the transcripts of the in camera, rape shield hearing. Rather, that determination must now be made by the media. Any attempt on our part to restrain the media from publishing that information constitutes government censorship prohibited by the First Amendment.
I am authorized to state that JUSTICE MARTINEZ and JUSTICE RICE join in this dissent.
. It is beyond dispute that these transcripts concern matters of public importance. As the Supreme Court put it in Richmond Newspapers, Inc. v. Virginia, ‘‘[I]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.” 448 U.S. 555, 575, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).
. The Supreme Court of South Carolina, however, has held that a prior restraint forbidding publication of truthful, lawfully obtained facts is warranted where publication will do harm to the both the defendant’s right to a fair trial and the attorney-client privilege. See State-Record Co. v. State, 332 S.C. 346, 504 S.E.2d 592 (1998), cert. denied, 526 U.S. 1050, 119 S.Ct. 1355, 143 L.Ed.2d 517 (1999). In that case, the media wanted to disseminate a surreptitiously recorded videotape containing a privileged communication between the defendant in a death penalty case and his attorney. The court held that the threat to the defendant’s Sixth Amendment right in that case was sufficiently certain and grave to warrant the prior restraint. Id. at 353-55, 504 S.E.2d 592.