[56] ALDISERT, Circuit Judge (dissenting, with whom WEIS, Circuit Judge, joins).

That solutions to this vexatious appeal are fragmented and do not command a majority should come as no surprise. Each solution is unerringly foreordained by the starting point of the several opinions.

I choose to begin at the beginning, to view the action of the district judge as an affirmative effort to vindicate the Sixth Amendment right of a defendant being tried in a criminal case before him. I see the First Amendment issue surfacing only as a defense lodged by appellants to the imposition of the silence order.

I.

Under the aegis of the exercise of the court's supervisory power the plurality retroactively enunciates a new rule of procedure requiring that a silence order vindicating a criminal defendant's Sixth Amendment rights, if it refers to non-parties, must (a) be reduced to writing, (b) state specifically the terms of the order and the reasons therefor, and (c) be entered on the district court docket.

But this court has no power to prescribe procedural rules for the governance of the district courts. That power is vested, by statute, in the Supreme Court. 18 U.S.C. §§ 3771, 3772; 28 U.S.C. §§ 2072, 2075. At the very most, the suggestions of the plurality should have been directed to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, 28 U.S.C. § 331, instead of incorporating them by judicial fiat in an in banc opinion.

II.

Assuming the advisability of the suggested procedures, and assuming the supervisory power to prescribe these procedures, no trial court should be reversed for failing to follow in October, 1973, rules which were not conceived until August, 1974. See Fisher v. Volz, 496 F.2d 333, 350-351 (3d Cir. 1974) (Aldisert, J., concurring and dissenting opinion). At the very most, the rules should have been applied prospectively; a practice observed by us in promulgating new jury instructions in United States v. Barber, 442 F.2d 517 (3d Cir. 1971), cert. denied, 404 U.S. 958, 92 S. Ct. 327, 30 L.Ed.2d 275 (1971), and United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969).

A.

It is suggested by both the plurality and by Judge Adams that the appellants did not know the precise contours of the silence order or the reasons for its imposition by the trial court. However, I find explicit specificity as to the appellants in these proceedings, Miss Stranahan and the Philadelphia Inquirer. Judge Ditter ordered them not to republish the information that the defendant Schiavo, then on trial for perjury, had been previously charged with other crimes. I find this to be a fair reading of the court's oral order as to the only appellants in these proceedings. We are not permitted, in the context of this case and controversy, to evaluate Judge Ditter's language in the abstract as to its possible effect on others. "[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). There is no reason why this doctrine should not apply in this case.

B.

Similarly, the reason for the imposition of the silence order fairly appears in the record. Judge Ditter was attempting to vindicate Schiavo's Sixth Amendment right to a fair trial before an impartial jury. It came to his attention that a newspaper article had appeared in the Philadelphia Inquirer conveying the information that Schiavo was also charged with conspiracy to kill a government informer. The trial court then meticulously conducted a voir dire examination of each of the jurors wherein it asked, inter alia, "It has come to my attention that there was an article in one of the Philadelphia papers which did refer to this case. . . . Did you see the article in the paper?" Following the examination the court was satisfied that the trial could continue.

Defense counsel then requested:

Your Honor, perhaps if the newspaper could be told not to make reference to the fact, if they are reporting it in the press, that Mr. Schiavo has also been indicted in another matter. Perhaps that would take at least some of the sting away from any of that publicity that might get into the hands of the jurors.

THE COURT: Well, I will be glad to make that request to the members of the press.

The members of the press were brought into the courtroom and addressed by the court. On the next day a second article appeared in the Philadelphia Inquirer stating that "Schiavo also is charged by the Federal government with conspiracy to kill Hess and with first-degree murder in New Jersey." It will be noted that the second article, published after the district court's request, contained a more graphic description of the other charges against Schiavo than the earlier publication. Judge Ditter then called the press representatives to his chambers, had a colloquy with them which is not on the record and then, proceeding into open court, expressed the verbal silence order. To raise an issue about lack of reasons for the imposition of the silence order in this case is to raise an issue that is both unwarranted and undeserving of serious consideration.

Thus, it cannot seriously be contended that the court's order lacked specificity or that these appellants were unaware of the reasons therefor.

C.

Both the plurality opinion and Judge Adams' concurrence state that a necessary prerequisite to a silence order is adequate notice and a hearing. I agree. I also agree with Judge Adams' assertion that appellants "did not have an opportunity to present argument or call witnesses" prior to the issuance of the 2 p. m. oral order. But the 2 p. m. oral order was not appealed. Rather, it is the written and docketed order resulting from the 4 p. m. hearing which is properly before this court.

I cannot summon a modicum of agreement with Judge Adams' conclusions: "Hence, it would appear that notice to appellants was inadequate and, indeed, the brevity of the hearing . . . suggests its perfunctory character in view of the important questions at stake."

Appellants were given precise and particular notice of the desire of the court on October 4, twenty-four hours before the October 5 oral silence order. Although Judge Adams would depict the proceedings as fraught with "inadequate notice" and a "hasty issuance of an oral order," his observations overlook the fundamental role particular circumstances play in assessing the adequacy of notice and hearing. If there was brevity it must be attributed to appellants. They chose not to present witnesses; the court did not exclude them. If there was haste in the scheduling of the hearing, it must be attributed to appellants; the court did not delay; the court heard them immediately upon presentation of their motion. Appellants had an edition to put out and a story to run. They sought to have the ban lifted. They were unsuccessful. They then ran the story in defiance of the ban they unsuccessfully sought to lift. Appellants controlled both the time of the hearing and its length. They and they alone fashioned the "brevity" and "perfunctory character" of the hearing. For this the trial court should not be faulted; a fortiori, for this it should not be reversed.

In sum, this court is presented with a factual complex where the oral silence order was specific as to these appellants. The reasons for its imposition were known to them. The trial court afforded them adequate notice and hearing. Accordingly, I find no prejudicial error in the procedures followed by Judge Ditter.

III.

Having found no prejudicial error in the procedure utilized by the district court, I must, and do, reach the merits of the "Free Press — Fair Trial" issue. For my part, I would take as a starting point the recognition that the First Amendment is one of several rights protected in the Bill of Rights. It is said that freedom of speech is given a preferred position. Thomas v. Collins, 323 U.S. 516, 527 n. 12, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Murdock v. Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). But this is not to say that the First Amendment may preempt every other provision of the Bill of Rights when the interests to be protected by the First Amendment come into conflict with interests protected by other constitutional guarantees. "The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself." Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). (Footnote omitted.) When the several multiple protections of basic constitutional principles conflict, a choice of values is necessitated. Professor Wechsler admonishes us that the choice must be made "on an adequate and principled analysis. . . . Surely a stronger analysis may be advanced against a particular uncompensated taking as a violation of the fifth amendment than against a particular limitation of freedom of speech or press as a violation of the first. In this view, the `preferred position' controversy hardly has a point — indeed, it never has been really clear what is asserted or denied to have a preference and over what. Certainly the concept is pernicious if it implies that there is any simple, almost mechanistic basis for determining priorities of values having constitutional dimension, as when there is an inescapable conflict between claims to free press and a fair trial. It has a virtue, on the other hand, insofar as it recognizes that some ordering of social values is essential; that all cannot be given equal weight, if the Bill of Rights is to be maintained."

In the context of free press-fair trial, it has been held that the "preferred position" of the First Amendment must give way to "fair trial — the most fundamental of all freedoms."

IV. A.

Appellants' basic argument in this appeal is clear and clean cut. They contend that no court may prevent the publication of court news under any circumstances because such news is a matter of public record. This approach, of course, is simplistic. The Supreme Court has never taken the absolutist view of the First Amendment as urged by the appellants and the authorities cited by them do not support this view. Learned Hand taught us that "[t]he privilege of `free speech,' like other privileges, is not absolute; it has its seasons; a democratic society has an acute interest in its protection and cannot live without it; but it is an interest measured by its purpose."

In Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919-920, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950), Justice Frankfurter, in a separate opinion respecting the denial of a petition for certiorari, posed the countervailing considerations:

Freedom of the press, properly conceived, is basic to our constitutional system. Safeguards for the fair administration of criminal justice are enshrined in our Bill of Rights. Respect for both of these indispensable elements of our constitutional system presents some of the most difficult and delicate problems for adjudication when they are before the Court for adjudication. It has taken centuries of struggle to evolve our system for bringing the guilty to book, protecting the innocent, and maintaining the interests of society consonant with our democratic professions. One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. On the other hand our society has set apart court and jury as the tribunal for determining guilt or innocence on the basis of evidence adduced in court, so far as it is humanly possible. It would be the grossest perversion of all that Mr. Justice Holmes represents to suggest that it is also true of the thought behind a criminal charge ". . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v. United States, 250 U.S. 616, 630 [40 S.Ct. 17, 22, 63 L.Ed. 1173]. Proceedings for the determination of guilt or innocence in open court before a jury are not in competition with any other means for establishing the charge.

New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971), was decided on a narrow issue, the Court merely holding that the government did not meet its "`heavy burden of showing justification for the imposition of such a [prior] restraint.' Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 [91 S.Ct. 1575, 1578, 29 L.Ed.2d 1] (1971)." Near v. Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931), stated flatly: "Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse."

Coming to grips with the free press-fair trial issue, Sheppard v. Maxwell, supra, 384 U.S. 333, 349-350, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), announced the doctrine which I embrace today — the press has virtually unlimited freedom to publish so long as there is "no threat or menace to the integrity of the trial":

This Court has . . . been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for "[w]hat transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 [67 S.Ct. 1249, 1254, 91 L.Ed. 1546] (1947). The "unqualified prohibitions laid down by the framers were intended to give to liberty of the press . . . the broadest scope that could be countenanced in an orderly society." Bridges v. California, 314 U.S. 252, 265 [62 S.Ct. 190, 195, 86 L.Ed. 192] (1941). And where there was "no threat or menance to the integrity of the trial," Craig v. Harney, supra, [331 U.S.] at 377, [,67 S.Ct. at 1255], we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.

. . . .

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.

In Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972), the majority opinion flatly states: "Newsmen . . . may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal." Sheppard also recognized: "From the cases coming [to the Supreme Court] . . . we note that unfair and prejudicial news comment on pending trials has been increasingly prevalent. . . . If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception." 384 U.S. at 362, 363, 86 S.Ct. at 1522.

B.

It is therefore necessary to determine how to accommodate the interest in full, robust and unrestricted dissemination of information as protected by the First Amendment with the fundamental requirement that a jury's verdict must be based upon the evidence adduced at trial as protected by the Sixth Amendment. Only the most cynical would suggest that a jury would be insensitive to the receipt of information that a defendant on trial for perjury was also "charged with conspiring to kill a government informer," as published by the Inquirer on October 4, 1973, and "charged by the Federal government with conspiring to kill Hess and with first-degree murder in New Jersey" as published the next day. Appellants do not seem to challenge the presence of this present threat to the integrity of a fair trial. Instead their counsel suggested to the trial court: "Either you keep the jury sequestered until the trial is completed, if you think that is necessary, or I think it is sufficient here to instruct the jurors not to read anything in the paper about this case."

This then brings me to the responsibility of deciding whether the district court abused its discretion in issuing a silence order instead of employing alternate remedies of sequestration, additional voir dire, additional instructions, and the declaration of a mistrial.

Sequestering a jury is the most efficient method of isolating a jury from influences beyond the courtroom. To recognize the effectiveness of this device, however, is not to ignore its attendant harmful effects. Under certain circumstances, the harm to a defendant may be minimized. When prospective jurors know at the time of empanelling that they are to be sequestered, they may advise court and counsel at voir dire of any health or family problems which would militate against service on a sequestered jury. But, when this device is foisted upon jurors in mid-trial, I am not at all certain that the act of sequestration does not have the capacity to generate possible animosity against the defendant. Should sequestration be ordered mid-trial as contended here, with an accompanying inquiry as to what was read or heard in the newspaper or broadcast media, the potential for prejudice is heightened, it being reasonable for jurors to conclude that comments being circulated were so serious and so adverse to the defendant that sequestration was mandated.

Appellants' suggestion that the problem may be cured by a simple instruction to the "jurors not to read anything in the papers about this case" is simplistic. To not read a certain article one must first scan the news stories or at least the headlines to determine what not to read; thus, to not read anything about a case one must first read.

A voir dire examination as to whether jurors have read about the case has but limited effect. Judge Ditter utilized this device on October 4, 1973. But to use voir dire daily, or repeatedly, might be a questionable practice because of its potential for generating self-induced infirmities by the very act of repetition. As a prophylactic measure, voir dire inquiry is to be encouraged; as a guaranteed method of insuring the trial's integrity, it leaves much to be desired. Complete success of this method requires total candor in the jurors' responses to special interrogatories, responses which are totally voluntary and completely free of having been influenced by a fear of sanctions by the court if a juror freely admits reading that which he had been forbidden to read.

A fourth alternative is the declaration of a mistrial. In the Persico case, supra, note 13, the defendant agreed to waive trial by jury after the mistrial. But such a waiver resulted in the defendant abandoning a constitutional right. Alternatively, the court might postpone retrial to allow the passage of time to dilute the deleterious effect of the publication, or it might order a change of venue. Although this may be the only available alternative in certain cases, we have recently recounted the prejudice, financial and otherwise, inuring to a litigant put to the inconvenience of second trials. Ferguson v. Eakle, 492 F.2d 26 (3d Cir. 1974). These publications did not relate to "hot news." They did not describe contemporary happenings. They described narrative or historical facts of past indictments. There was not the slightest indication that The Philadelphia Inquirer would not repeat the publications at a second trial. Appellants' persistence in continuing to publish an account that the defendant on trial in the Philadelphia federal court for perjury, was also under another federal indictment of conspiracy to commit murder as well as a state indictment for murder, gave no assurance that declaring a mistrial and rescheduling the case would have eliminated the problem.

Having discussed what I consider to be the deficiencies in sequestration, additional voir dire, additional instructions, and mistrial in this case, I am persuaded that there was no abuse of discretion in the district court's issuance of a silence order. Clearly, the district court had an option to exercise its discretion in an effort to vindicate the Sixth Amendment rights of the defendant. Professor Maurice Rosenberg reminds us:

If the word discretion conveys to legal minds any solid core of meaning, one central ideal above all others, it is the idea of choice. To say that a court has discretion in a given area of law is to say that it is not bound to decide the question one way rather than another.

He distinguishes between primary discretion, "a wide range of choice to do what [an adjudicator] pleases," a type of unreviewable discretion, which is not before us here, and a type of reviewable discretion in a secondary form, which is before us:

The other type of discretion, the secondary form, has to do with hierarchical relations among judges. It enters the picture when the system tries to prescribe the degree of finality and authority a lower court's decision enjoys in the higher courts. Specifically, it comes into full play when the rules of review accord the lower court's decision an unusual amount of insulation from appellate revision. In this sense, discretion is a review-restraining concept. It gives the trial judge a right to be wrong without incurring reversal.

I am attracted to the expression of scope of appellate review — a rudimentary approach to a definition of "abuse of discretion" — enunciated by the Second Circuit:

Had any one of us been in a position to exercise the discretion committed to a trial judge when such a request is made, we have no hesitancy in stating that the decision would have been otherwise; but as appellate judges we cannot find that the action of the district judge was so unreasonable or so arbitrary as to amount to a prejudicial abuse of the discretion necessary to repose in trial judges during the conduct of a trial.

The keynote of this approach was earlier described by Judge Henry J. Friendly as an attitude of "appellate deference to a determination of the district judge" in an area committed to his discretion. So tested, I do not find the district court's rejection of the alternate trial-controlling or trial-postponing remedies as an exercise of discretion "so unreasonable or so arbitrary as to amount to a prejudicial abuse."

C.

Counterposed against the incursions into the integrity of a defendant's right to a fair trial is the public interest in court proceedings, in Justice Frankfurter's felicitous expression, "[o]ne of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there. . . ." Maryland v. Baltimore Radio Show, Inc., supra, 338 U.S. at 920, 70 S.Ct. at 255. I am persuaded that the public interest here was already satisfied. First, the subject matter of the restraint did not relate to the district court trial in Philadelphia, but to an historical narrative of past separate federal and state indictments in New Jersey. It was not critical to a complete reporting of immediate courtroom events. Second, the subject matter related to indictments, which are merely accusations, not to judicial determinations of guilt. Third, the information had already been disseminated on October 4 and repeated and expanded on October 5. Fourth, because it had already been published twice and related to past events of grand jury actions, the subject matter did not constitute "hot news." Any residual newsworthiness which inhered in these utterances could have been preserved for the short time, the "one more day," requested by Judge Ditter.

What is here is not prior restraint, New Jersey State Lottery Commission v. United States, 491 F.2d 219 (3d Cir. 1974) (in banc), but a ban on the repetition of previously published information for " one more day," until the trial concluded. We are reminded in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957): "Just as Near v. Minnesota, . . . [ 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)] one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that `Liberty of speech, and of the press, is also not an absolute right,' 283 U.S. at 708, 51 S.Ct. at 628, it likewise made clear that `the protection even as to previous restraint is not absolutely unlimited.' Id. [283 U.S.] at 716, 51 S.Ct. at 631. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship." Kingsley permitted an injunction pendente lite because the New York statutory scheme permitted a final decision on the merits two days after trial which in turn had to be set one day after joinder of issue. This is a time period far in excess of the one day requested by Judge Ditter. Thus we are not presented with the problem met in Grove press Inc. v. City of Philadelphia, 418 F.2d 82 (3d Cir. 1969), where we found that the Pennsylvania procedural rules governing equity actions did not satisfy the requirement of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), because the state's procedural rules did not contain time limits guaranteeing a prompt final decision on the merits after the issuance of a preliminary injunction.

V.

I would affirm the district court, under the procedural posture of this case, because neither at the hearing nor on appeal have appellants urged what I believe to be a critical issue when the countervailing precepts of the Sixth and First Amendments collide — that the draconian act of injunction may issue only if no adequate remedy at law is available.

I am not at all certain that any remedy at law exists to vindicate the Sixth Amendment rights of a defendant which are impinged by unfettered expressions of the press. As the moving party in the motion to vacate the silence order, appellants had the burden of demonstrating the existence of an adequate remedy at law. As a corollary it would seem that the movant for a silence order has the burden of establishing the absence of an adequate legal remedy as a prerequisite to obtaining the order.

It has become the recent fashion to resort to money damages for, in Roscoe Pound's phrase, "substituted redress" of, invaded rights. Thus a boundless galaxy of § 1983 cases has appeared in our judicial skies where the infringer has operated under color of state law; and if the infringer is a federal officer, the claimant may enter federal court with credentials furnished by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

Where, as here, the putative infringer is a private person, the availability of a remedy at law is not free from considerable doubt. To be sure, because it was not raised below, we must await the proper case or controversy to furnish some guidance, but at least it is arguable that a remedy may exist in the federal courts under one of the less familiar Civil Rights Acts, 42 U.S.C. § 1985(3): "If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons . . . of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." A leading commentator argues that due process rights are protected by this section although he admits the existence of authority to the contrary.

Then, too, there is the possibility, also admittedly untested, that an action at law may lie in Pennsylvania courts for an action in damages based on a violation of Art. 1, § 9 of the Constitution of Pennsylvania: "In all criminal prosecutions, the accused [cannot] . . . be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land." Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317, 333 (1940), holds that this Pennsylvania constitutional provision guarantees an accused the due process right to a fair trial. I would be more confident of the availability of this remedy if my research indicated that the provisions of the state constitution were self-executing, unlike the federal constitution which requires congressional action to best remedial district court jurisdiction. Cary v. Curtis, 3 How. 236, 11 L.Ed. 576 (1845); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850). Cf., Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816). A cursory research discloses no cases affirming or negating a self-executionary status of the Pennsylvania Constitution.

Without the benefit of initial consideration by the trial court, or brief or argument here, I cannot, without more, conclude that an adequate remedy at law exists to have denied Schiavo the benefit of a silence order, injunctive in nature. In any event, I find that appellants had the burden of persuasion on this issue in their motion to vacate the oral silence order. They did not meet their burden.

VI.

The judicial angle of vision in testing any restraint of speech must encompass the various interests to be protected by the separate components of the Bill of Rights. Justice Frankfurter has reminded us: "The phrase `prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: `What is needed,' writes Professor Paul A. Freund, `is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.' The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539." Kingsley Books, Inc. v. Brown, supra, 354 U.S. at 441-442, 77 S.Ct. at 1328.

The particularistic analysis ultimately requires a choice between conflicting interests to determine whether a limitation in expression is mandated on the basis of a threat to the defendant's Sixth Amendment right to receive a trial by an impartial jury. We must not be insensitive to the dangers that lurk in any choice, but the high responsibilities of this judicial office require that a choice be made. It does not augur well to postpone this choice, or to pass this burden to another time.

I am persuaded that in this case the scales must be tipped to vindicate the defendant's fundamental right to receive a fair trial at the expense of some limited impairment of First Amendment rights. The procedure followed by the district court here, in the exercise of its inherent powers to "take strong measures to insure that the balance is never weighed against the accused" and to invoke the power enunciated in Branzburg v. Hayes, supra, was proper.

I am aware that a certain institutional value is affixed to any decision of this court, but the genius of our jurisprudential tradition is that the parameters of a holding are limited to the factual complex that creates it. Here the facts do not fit the mold of classic prior restraint; it was a restraint upon a repetition of previously disseminated public utterances. The publication was not "hot news." The restraint was upon repetitive, not original, publication. Moreover, the judicial ban was not open-ended; it was restricted to an extremely limited period of time, in the words of the court, "for one more day." I would conclude that any interest here protected by the First Amendment must be subordinated, under the circumstances of this case, to countervailing interests protected by the Sixth Amendment.

I would affirm the judgment of the district court.