O’Neill, C. J.
The question before this court is: Shall a permanent writ be granted?
If the writ is denied and the alternative writ now in effect is thus terminated, the broad order of the trial court not to publish will be in effect. It is a continuing order of unlimited duration and would prohibit the relators and other news media from ever publishing McDaniels’ state[351]*351ments regarding Garduño’s “participation in any criminal activity” at any time.
At the time this case was submitted, it was undisputed that “McDaniels’ mitigation hearing has not yet been conducted nor has McDaniels been sentenced.” The January 26 order literally prevents relators from ever reporting in the future McDaniels’ pronouncements made in court under oath.
Judge Kainrad testified that the order was still pending, that he did not anticipate issuing any other order, that he felt it was appropriate to issue the order at the time and that he still felt that it was an appropriate order, and that if the same circumstances came up again, he would issue the same order.
A majority of this court is of the opinion that this case is, therefore, not moot.
Judge Kainrad’s order created a confrontation between the First Amendment right of freedom of the press, and Garduño’s Sixth Amendment right to a fair trial by an impartial jury.
The relators do not contend that the First Amendment guarantees absolute unfettered freedom of the press in all cases and under all circumstances.
The relators assert that “where the right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions, or sequestration of the jury, the press and public cannot be excluded from any aspect of criminal judicial proceedings.”
The respondent’s position is stated in his proposition of law No. 2:
“Where there is a clear and present probability that pretrial publicity will hinder and delay the speedy impaneling of an impartial jury, and possibly require a change of venue, a trial judge is under a duty to appraise the'substantiality of the danger posed by the publicity, to balance the competing requirements of free press and fair trial, and to then make such order as required by the circum[352]*352stances, in order to avoid last resort alternatives, such as a continuance or a change of venue.”
The controlling issue in this cause is thus sharply drawn.
The majority of this court is of the opinion .that where the constitutional right of a criminal- defendant, to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings. - •
An order not to publish cannot be considered unless the circumstances are imperative, and it appears clearly in the record that a defendant’s right to a fair trial will b.e jeopardized and that there is no other recourse within the power of the court to protect that right or minimize the danger to it.
Before issuing any such order not to publish, it is obligatory upon the court to hold a hearing and make a finding that all other measures within the power of the court to insure a fair trial have been found unavailing and deficient.1
■ Although the specific question at issue in the instant cause was not decided in Sheppard v. Maxwell (1966), 384 U. S. 333, Justice Clark, writing for the court, set forth the principles • of law which are applicable here. After describing the inflammatory publicity in the press about the Sheppard case and detailing, the prejudicial influences al[353]*353lowed within the court room during that trial and the atmosphere surrounding the trial by reason of the publicity, Justice Clark said, at page 358:
“ * * * the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence.”
Speaking for eight members of the court, he continued:
“We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press * # *.”
Justice Clark then set out in detail a number of specific actions which the court could have taken “to guarantee Sheppard a fair trial.” (See pages 357 to 363, inclusive.)
The actions available and applicable in the instant cause are voir dire, continuance, change of venue, jury instructions and sequestration of the jury. Speaking directly to these available alternative measures, Justice Clark said, at pages 362 and 363:
“ * * * Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial .news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel.” (Emphasis added.)
Another case decided by the United States Supreme Court, which supports the proposition that .the media is free to report proceedings and events which, transpire in the courtroom, is Estes v. Texas (1965), 381 U. S. 532, wherein Justice Clark, writing for the court, said at page 541:
“It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media * *' * are always present if they wish to be and are plainly free to report whatever occurs in open court through their [354]*354respective media. This was settled in Bridges v. California, 314 U. S. 252 (1941), and Pennekamp v. Florida, 328 U. S. 331 (1946), which we reaffirm.”
That statement of the law is repeated in Times-Picayune Publishing Corp. v. Schulingkamp (1974), 419 U. S. 1301, at page 1307, by Justice Powell.
In Wood v. Goodson (1972), 253 Ark. 196, 485 S. W. 2d 213, the Supreme Court of Arkansas held:
“No court has the power to prohibit the news media from publishing that which transpires in open court * *
A case directly on point with the instant cause is New York Times Co. v. Starkey (1976), 380 N. Y. S. 2d 239. The Supreme Court, Appellate Division, held, at pages 243-244:
“ * * * Precisely because ‘a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field’ (Sheppard v. Maxwell,
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O’Neill, C. J.
The question before this court is: Shall a permanent writ be granted?
If the writ is denied and the alternative writ now in effect is thus terminated, the broad order of the trial court not to publish will be in effect. It is a continuing order of unlimited duration and would prohibit the relators and other news media from ever publishing McDaniels’ state[351]*351ments regarding Garduño’s “participation in any criminal activity” at any time.
At the time this case was submitted, it was undisputed that “McDaniels’ mitigation hearing has not yet been conducted nor has McDaniels been sentenced.” The January 26 order literally prevents relators from ever reporting in the future McDaniels’ pronouncements made in court under oath.
Judge Kainrad testified that the order was still pending, that he did not anticipate issuing any other order, that he felt it was appropriate to issue the order at the time and that he still felt that it was an appropriate order, and that if the same circumstances came up again, he would issue the same order.
A majority of this court is of the opinion that this case is, therefore, not moot.
Judge Kainrad’s order created a confrontation between the First Amendment right of freedom of the press, and Garduño’s Sixth Amendment right to a fair trial by an impartial jury.
The relators do not contend that the First Amendment guarantees absolute unfettered freedom of the press in all cases and under all circumstances.
The relators assert that “where the right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions, or sequestration of the jury, the press and public cannot be excluded from any aspect of criminal judicial proceedings.”
The respondent’s position is stated in his proposition of law No. 2:
“Where there is a clear and present probability that pretrial publicity will hinder and delay the speedy impaneling of an impartial jury, and possibly require a change of venue, a trial judge is under a duty to appraise the'substantiality of the danger posed by the publicity, to balance the competing requirements of free press and fair trial, and to then make such order as required by the circum[352]*352stances, in order to avoid last resort alternatives, such as a continuance or a change of venue.”
The controlling issue in this cause is thus sharply drawn.
The majority of this court is of the opinion .that where the constitutional right of a criminal- defendant, to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings. - •
An order not to publish cannot be considered unless the circumstances are imperative, and it appears clearly in the record that a defendant’s right to a fair trial will b.e jeopardized and that there is no other recourse within the power of the court to protect that right or minimize the danger to it.
Before issuing any such order not to publish, it is obligatory upon the court to hold a hearing and make a finding that all other measures within the power of the court to insure a fair trial have been found unavailing and deficient.1
■ Although the specific question at issue in the instant cause was not decided in Sheppard v. Maxwell (1966), 384 U. S. 333, Justice Clark, writing for the court, set forth the principles • of law which are applicable here. After describing the inflammatory publicity in the press about the Sheppard case and detailing, the prejudicial influences al[353]*353lowed within the court room during that trial and the atmosphere surrounding the trial by reason of the publicity, Justice Clark said, at page 358:
“ * * * the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence.”
Speaking for eight members of the court, he continued:
“We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press * # *.”
Justice Clark then set out in detail a number of specific actions which the court could have taken “to guarantee Sheppard a fair trial.” (See pages 357 to 363, inclusive.)
The actions available and applicable in the instant cause are voir dire, continuance, change of venue, jury instructions and sequestration of the jury. Speaking directly to these available alternative measures, Justice Clark said, at pages 362 and 363:
“ * * * Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial .news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel.” (Emphasis added.)
Another case decided by the United States Supreme Court, which supports the proposition that .the media is free to report proceedings and events which, transpire in the courtroom, is Estes v. Texas (1965), 381 U. S. 532, wherein Justice Clark, writing for the court, said at page 541:
“It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media * *' * are always present if they wish to be and are plainly free to report whatever occurs in open court through their [354]*354respective media. This was settled in Bridges v. California, 314 U. S. 252 (1941), and Pennekamp v. Florida, 328 U. S. 331 (1946), which we reaffirm.”
That statement of the law is repeated in Times-Picayune Publishing Corp. v. Schulingkamp (1974), 419 U. S. 1301, at page 1307, by Justice Powell.
In Wood v. Goodson (1972), 253 Ark. 196, 485 S. W. 2d 213, the Supreme Court of Arkansas held:
“No court has the power to prohibit the news media from publishing that which transpires in open court * *
A case directly on point with the instant cause is New York Times Co. v. Starkey (1976), 380 N. Y. S. 2d 239. The Supreme Court, Appellate Division, held, at pages 243-244:
“ * * * Precisely because ‘a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field’ (Sheppard v. Maxwell, 384 U. S. 333, 350, 86 S. Ct. 1507, 1515, 16 L. Ed. 2d 600), and because the press is the instrument by which the public is informed of current events, only the most-exigent circumstances warrant the issuance of an order curtailing the right of the press to publish. All other measures within the power of the court to insure a fair trial must be found to be unavailing or deficient. No invasion'of the freedom of the press should be sanctioned unless it appears clearly on the record that the court has inquired into the potential danger to the defendant if the- prejudicial information is published, that on substantial grounds it appears that the. defendant will be deprived of a fair trial as a result, and that the danger cannot be avoided or minimized by other means,' such as by sequestering the jury, or through proper instructions to the jury (cf. Times-Picayune Pub. Corp. v. Schulingkamp, 419 U. S. 1301, 95 S. Ct. 1, 42 L. Ed. 2d 17). In short, an order directing the press not to publish the information ought to be the last resort of the court.” (Emphasis added.)
That statement of the law is directly contrary to the position taken by the respondent in the instant cause.
No persausive reason has been advanced for permitting [355]*355the trial judges of this state, when faced in a criminal case with the dilemma of a confrontation between the First Amendment right of freedom of the. press and the Sixth Amendment right of a defendant to a fair trial by an impartial jury, to restrain or limit the effect of either of these invaluable rights so long as there are alternative measures by which both rights can be guaranteed.
The only other issue which respondent raised for determination by this court is whether prohibition is a proper remedy in the instant cause.
Prohibition will lie on authority of State, ex rel. Northern Ohio Telephone Co., v. Winter (1970), 23 Ohio St. 2d 6, 260 N. E. 2d 827.
Respondent is in error when he contends that there is a plain and adequate remedy at law by way of appeal. Just as this court reasoned in Winter, supra, relator is in the precarious position of having to either violate the temporary restraining order or acquiesce in the violation of the First Amendment to the Constitution of the United States. Other than the requested writ,' there is no other remedy which can solve relators’ irreconcilable conflict. There- is no plain and adequate remedy in the ordinary course of the law. The order of Judge Kainrad was a usurpation of judicial power.
For the reasons stated in .this opinion, the writ of prohibition is allowed.
Writ allowed.
Herbert, Krenzler and W. Brown, JJ., concur.
Corrigan, Celebrezze and P. Brown, JJ., dissent.
Krenzler, J., of the Eighth Appellate District, sitting for Stern, J.