(dissenting).
Four members of the Court sustain the constitutionality of a gag order prohibiting certain members of the press from publishing information about a defendant in a criminal trial. Since I believe that the order is prohibited by the First Amendment to the United States Constitution and Article I, § 15 of the Utah Constitution, I dissent.
I.
“[T]he most serious and the least tolerable infringement on First Amendment rights” is a prior restraint. Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976). In sustaining and even broadening the censorship order imposed by the trial court, the majority of this Court purports to apply the standards established by Nebraska Press. I respectfully submit, however, that the majority both misreads and misapplies Nebraska Press and also wholly fails to recognize the impact of its ruling on the doctrine of prior restraints generally and the legality of gag orders in particular.
Nebraska Press did not flatly prohibit all media gag orders in criminal trials, but the Supreme Court made clear that an order imposing a prior restraint on the press is justifiable only in the most extreme and extraordinary cases and only when other judicial remedies would not be adequate to assure the fair trial of an accused. “[T]he barriers to prior restraint remain high and the presumption against its use continues intact.” Id. at 570, 96 S.Ct. at 2808. Indeed, even when the government has asserted that national security would be adversely affected by the publication of certain information, the Court has held injunctions against media publication unconstitutional. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The majority of this Court, however, seriously enfeebles the presumption of invalidity because it fails to *463require judicial resort to well-established remedies, short of a gag order, that would ensure a fair trial.
This is not a case where the First and Sixth Amendments are necessarily at loggerheads. The right to a fair trial and preservation of the freedom of the press could have been fairly and reasonably accommodated by sequestering the jury. The majority argues that sequestration is not practicable because “sequestration, at that stage of the trial might well have the effect of causing the jury to question the procedure and thus prejudice them against Gatto.” If that were true in this case, it would be true in almost every case involving prejudicial publicity, and sequestration would virtually never be appropriate. Certainly there is no evidence and no finding in this case that sequestration would create prejudice against the defendant. Surely the experience of many other jurisdictions, including the federal courts, which employ sequestration to insure fair trials, does not support the Court’s assertion.
In my view the expense to the state and the inconvenience to jurors caused by sequestration is a small price to pay for freedom of the press. The rights enshrined in the Bill of Rights do on occasion cause inconvenience and expense. But considerations of inconvenience and expense pale in significance against the overarching importance of those fundamental values of our free society which are anchored in the Bill of Rights. The Florida Supreme Court in State ex rel. Miami Herald Publishing Co. v. McIntosh, Fla., 340 So.2d 904, 910 (1977) stated:
The inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public’s right to timely knowledge of trial proceedings guaranteed by freedom of the press. It is argued that a temporary withholding of news from the public may aid in assuring a fair trial and that if the State and defendant agree to muzzling the press no one else has a right to object. We firmly reject any’ suppression of news in a criminal trial except in those rare instances such as national security and where a news report would obviously deny a fair trial as stated above in Federal eases.
II.
Furthermore, the trial court’s findings of fact do not justify the extreme measure of imposing a gag order. Rather, the findings demonstrate that the publicity objected to had not tainted the jury and that the possibility of tainting the jury was remote and speculative. The trial court found:
(1) [Tjhat at least one juror had received information that a trial was in progress that in some manner concerned Mafia figures;
(2) that the news media did not intend to exercise restraint in disseminating reports of defendant Gatto’s alleged connections with the Mafia or organized crime;
(3) that the alleged fact that defendant Gatto has connections with the Mafia or organized crime is not in the public domain, and no fact was presented which indicated a direct or indirect connection between defendant Gatto and organized crime; and
(4) that an association or connection of defendant Gatto with the Mafia or organized crime if brought to the attention of a juror would result in prejudice.
None of these findings indicate that any juror was aware that whatever he had heard that might have emanated from the media was related to the trial in which he was involved. None of the findings indicate that even if a juror might have heard something about the alleged connection between the defendant and the Mafia that that information might affect that juror’s judgment. True, finding No. 4 states that “an association or connection of defendant Gatto with the Mafia or organized crime if brought to the attention of a juror would result in prejudice.” Concededly, the term “Mafia,” if connected with the defendant could prejudice the trial. According to the press accounts, however, the defendant was not directly connected with the Mafia, but was said to be a friend of a son of a Mafia figure. The reports did not state that the defendant himself was a member *464of the Mafia, or even that he associated with a member of the Mafia. Be that as it may, the allegation could, of course, have been prejudicial if conveyed to the jury. Nevertheless, the trial judge could have addressed the problem by a curative instruction, or he could have declared a mistrial and either sequestered the jury in a subsequent trial or appointed additional alternate jurors to sit in the event of the disqualification of a juror.
In any event, the majority does not even address, much less determine, whether the gag order it sustains is justified by whether “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Nebraska Press, supra, 427 U.S. at 562, 96 S.Ct. at 2804 (quoting Learned Hand, J., United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950)). That test, adopted by the Supreme Court in Nebraska Press with respect to justifying curtailment of freedom of the press, is critical in determining whether a gag order is justified when all other alternative remedies for ensuring a fair trial have been found inadequate. Without even purporting to apply the test, the majority simply asserts that the invasion of the First Amendment right is justified. Since sequestration would have prevented the evil of prejudice, there was no justification whatsoever for the “invasion of free speech.”
III.
The majority’s application of the Freedom of Press Clause in the Utah Constitution borders on being cavalier. In a wholly off-hand manner, the Court states with respect to the free press provision of the Utah Constitution, Article I, § 15: “[W]e add a fourth test pertaining to during-trial publicity: the degree of public interest in immediate access to the information that the proposed order would deny them for the duration of the trial. In this case, we perceive no significant public interest in immediate access to the sole subject of the restraining order: that Gatto, on trial for theft by deception, had some direct or indirect connection or association with organized crime.”
In short, the majority simply bulldozes into the editorial process far beyond anything contemplated in Nebraska Press, even in the most extreme circumstances. The majority seeks to legitimatize judicial judgments on purely editorial matters that are far beyond the competence of any court. Deciding what is newsworthy and when it is newsworthy is simply not a judicial function. Judicial control of those decisions is raw censorship, pure and simple. In asserting power under the Utah Constitution to restrain the publication of information based on “the degree of public interest in immediate access to the information,” the Court opens the censorship door wider than any conceivable legitimate judicial interest justifies — and wider than has heretofore occurred in this state or, to my knowledge, in any federal jurisdiction. Under the Court’s new-found standard, it could almost always justify a gag order on the ground that the public could wait to receive whatever news is to be suppressed — but that totally ignores the realities of the process of news dissemination and is flatly at odds with the First Amendment and Article I, § 15.
I should have thought it axiomatic that it is for editors, not judges, to determine what, when, and how to publish. Conced-edly, what is published may in the eyes of the judiciary be prejudicial, sensationalistic, and unnecessary, but to others it may be highly informative and critical to public discussion.
In sum, I believe that the majority has basically ignored our nation’s long-time aversion to prior restraint of speech and the press. There is no justification for imposing a gag order to ensure a fair trial in this case. Other judicial remedies were available and should have been employed to ensure that objective.
I think the gag order was unconstitutional.