FOOTNOTES FOR FIRST AMENDMENT ON THE BATTLEFIELD

Member, Law Firm of Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, California. J.D., University of California, Davis, 1986; B.A., Journalism, B.A., German, California State University, Northridge, 1983. I gratefully acknowledge the contribution of Matthew J. Smith (J.D. candidate, University of California, Davis, 1992), the patience and understanding of my wife, Susan, and the support of my law firm. I wish to dedicate this Article to my father, Bernhard Frenznick, a great lawyer who taught me by example that one can achieve anything with dedication, determination, and a lot of hard work.

1. In re Mack, 386 Pa. 251, 272, 126 A.2d 679, 687, (1956) (Musmanno, J., dissenting).
2. See infra notes 110-247.
3. See infra notes 5-109.
4. See infra pages 358-59.
5. 200-Year Tradition Broken, NEWS MEDIA & THE LAW at 4 (Jan. 1984) [hereinafter Tradition]. See Text of Journalists' Joint Statement, N.Y. Times, Jan. 11, 1984, at A10, col. 1 (arguing that American journalists have accompanied troops on military operations since the Revolutionary War). But see F. MOTT, AMERICAN JOURNALISM 99 (1962) (no organized press corp existed to cover the war).
6. Cassel, Restrictions on Press Coverage of Military Operations: The Right of Access, Grenada and Off-The Record Wars, 73 GEO. L.J. 931 (1985).
7. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). In Globe Newspaper, the United States Supreme Court found a First Amendment right of access to the criminal trial based upon the historical openness of that judicial process. Id. If the press' traditional involvement in reporting military operations has rendered the battlefield ``open,'' the press may be able to constitutionally demand that the military grant it access to the battlefield. See infra notes 169-175 and accompanying text (discussing Globe Newspaper and the right of access to judicial proceedings).
8. MOTT, supra note 5, at 99. Media organization is vital to any coverage effort because eyewitness accounts must be transmitted quickly from the fighting to the newspaper. Id. No such organization existed during the Revolutionary War. Id. Generally, newspapers filled their news columns with stories clipped from other newspapers, both foreign and domestic. Id. Each newspaper printed local news, which contributed to the total fund of stories, but reports sometimes took weeks, or even months, to reach the other newspapers. Id. For example, the battles of Lexington and Concord occurred on April 19, 1775, but were not reported in the Baltimore Gazette until April 27 and not until May 31 in the Savannah Gazette. Id. at 99-101.
9. Id.
10. Id. at 196. News reports generally came from Washington, but were slow in getting to the newspapers. Id. One young editor often met the night stage as it passed through and questioned the passengers while the driver changed horses. Id.
11. Id. During the Mexican-American War, the nine New Orleans papers, which were geographically closest to the fighting, had correspondents at the front. Id. All other American newspapers relied on their reports. Id. at 248-49. By 1846, newspapers had a large enough readership to permit expenditure of funds to collect and quickly transmit stories from the battlefield to the printer. Id. The Charleston Courier and the New York Sun, for example, set up horse expresses over the gap in the railroad system through Mississippi and Alabama, which greatly improved transmission speed. Id. Once the reports reached Richmond, Virginia, operators put the stories on the telegraph and transmitted them to newspapers in Northern States. Id.
12. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 484 (1958). ``Newspaper correspondents were everywhere. Many had official positions as government clerks, army nurses, or signal officers, and were thus advantageously placed for obtaining news.'' Id.
13. Randall, The Newspaper Problem in its Bearing upon Military Secrecy During the Civil War, 23 AM. HIST. REV. 303, 477-510 (1987). The press continually published military information, such as plans for campaigns, movement of troops, and locations of military units, which was used by the South to plan their strategy. Id. Some northern newspapers were openly hostile toward the Lincoln administration and the President himself. Id. The Baltimore Exchange, for example, publicly supported the Confederate cause:
The war of the South is the war of the people, supported by the people. The war of the North is a war of the party, attempted to be carried on by political schemes, independently of the people, on the credit of a divided country, and on the . . . faith of an old union -- which has in reality, ceased to exist. Id. at 488 (quoting from Baltimore Exchange, July 10, 1861).
14. RANDALL, supra note 12, at 303.
Usually the correspondents were accorded the most liberal privileges. Government passes were put into their hands; they had the use of government horses and wagons; they were given transportation with baggage privileges on government steamers and military trains. They enjoyed the confidence of admirals and army commanders, and were seldom at a loss to obtain the information they desired. Staying behind the lines as they usually did, they heard an immense deal of officers' talk, and could pick up not only the camp gossip but also many telling snatches of military information. Id. at 307.
15. RANDALL, supra note 12, at 492-93. Among those newspapers suppressed were the Chicago Times, New York World, New York Journal of Commerce, Dayton Empire, Louisville Courier, New Orleans Crescent, South of Baltimore, Maryland New Sheet of Baltimore, Baltimore Gazette, Daily Baltimore Bulletin, Philadelphia Evening Journal, and the New Orleans Advocate. Id.
16. Id. at 481-84. The government made feeble attempts to censor press dispatches sent over the national wire, but journalists simply used the mail instead. Id. President Lincoln exercised a great restraint when dealing with the press. Id. He expressed his concern in a letter to General Schofield in which he wrote:
You will only arrest individuals and suppress assemblers or newspapers when they may be working palpable injury to the military in your charge, and in no other case will you interfere with the expression of opinion in any form or allow it to be interfered with violently by others. In this you have discretion to exercise with great caution, calmness and forbearance. Id. at 508.
17. MOTT, supra note 5, at 537. Cable tolls were high. It is estimated that New York newspapers filed up to 5,000 words per day over the wire from the Key West cable office. At the current rate of five cents per word, these newspapers spent up to $250 per day in cable fees alone. Id.
18. Id. at 533. See J. MATHEWS, REPORTING THE WARS 141 (1957) (discussing military-press relations during the Spanish-American War). Historians estimate that as many as 500 writers, photographers, and artists covered the fighting for scores of newspapers and magazines. MOTT, supra note 5, at 534. President McKinley issued permits to the Associated Press that allowed its reporters to accompany each flagship. Id. at 536. When Dewey's fleet sailed into Manila Bay, for instance, three correspondents were on board and observed the fighting. Id.
19. Middleton, Barring Reporters from the Battlefield, N.Y. Times, Feb. 5, 1984, § 6, at 37. With the size of World War I, it soon became apparent that the front-line trenches were not the best places to gather news about larger movements of troops. Accordingly, military headquarters became the press centers. MOTT, supra note 5, at 619.
20. Middleton, supra note 9, at 37. ``The American Army entering World War I found itself wrapped in the censorship already established by Britain and France, the senior allies, who instituted it for the purpose of security.'' Id. Military officials screened all cables and mail bound for the United States, excising offensive material or returning the dispatch to the correspondent for a rewrite. MOTT, supra note 5, at 621-22. At one point, French and British authorities considered excluding all reporters from their armies. MATHEWS, supra note 18, at 161. The British and French were determined to exclude all reporters in 1914 when fighting on the Western front became trench warfare. Id. That type of warfare is virtually impossible to report without direct access to the fighting. Id.
21. M. STEIN, UNDER FIRE: THE STORY OF AMERICAN WAR CORRESPONDENTS, at 72 (1968).
22. Id. at 73. Reporters with foreign armies were afforded such freedom: ``Once accredited, correspondents might go and come as they pleased; writers with other armies were commonly compelled to go about with military escorts, but American correspondents could visit front-line trenches alone if they pleased, or even `go over the top.''' MOTT, supra note 5, at 621. It is interesting to note that during World War I women made their first appearance as war correspondents. Id. at 622.
23. During the entire war, the U.S. War Department accredited 1,186 American correspondents and other news personnel. MOTT, supra note 5, at 742. The Navy Department accredited an additional 60 reporters. Id. Thirty newspapers, the two wire services, and twelve magazines maintained correspondents at the war fronts. Id.
24. In 1944, Pyle won the Pulitzer Prize for reporting. Id. at 754. He was killed on April 18, 1945, the victim of a Japanese machine gun sniper. Id.
25. See Middleton, supra note 19, at 61 (stating that every written story, photograph, or broadcast was scrutinized by U.S. military censors).
26. Id. Middleton recalled that ``World War II correspondents were permitted, if not encouraged, to interview officers dealing with operations, intelligence or military government.'' Id.
27. Id.
28. MOTT, supra note 5, at 759. A total of 37 writers, photographers, and radio men were killed during the war, and 112 were wounded. Id. Journalists had a casualty rate four times higher than the fighting forces. Id. But see Middleton, supra note 19, at 61 (estimating that 140 correspondents died during World War II). Middleton's calculation may include combat correspondents; soldiers assigned to write for various military newspapers.
29. Tradition, supra note 5, at 5. Six correspondents accompanied the plane when U.S. forces bombed Rome and a reporter was present in the air when the second atomic bomb exploded over Japan. Id. See generally J. MAC VANE, ON THE AIR IN WORLD WAR II (1979) (accounting of war correspondent's adventures reporting battlefield news).
30. Middleton, supra note 19, at 61.
31. P. KNIGHTLY, THE FIRST CASUALTY -- FROM CRIMEA TO VIETNAM: THE WAR CORRESPONDENT AS HERO, PROPAGANDIST AND MYTH MAKER 337 (1975).
32. Id. at 245-46. Correspondents were under the complete jurisdiction of the army. Id. Any infraction of the imposed rules could be punished by suspension of privileges, deportation, or even court martial. Id. MacArthur made it clear that criticism of military policy or commanders would not be tolerated. Id.
33. Id.
34. STEIN, supra note 21, at 149; KNIGHTLY, supra note 31, at 340. Journalists even accompanied the troops on the Inchon landing.
35. In contrast to the total military censorship during World War II, during the Vietnam War overt censorship (i.e., actual inspection of correspondents' cables and mail) did not exist, yet the military still allowed reporters almost complete freedom of movement.
36. Middleton, supra note 19, at 61. See Administration Limits News of Grenada, N.Y. Times, Oct. 27, 1983, at A23, col. 4 (stating that no censorship occurred during the Vietnam War).
37. Middleton, supra note 19, at 61, 69; Military v. Press: A Troubled History, N.Y. Times, Oct. 29, 1983, at A7, col. 1; Marines Give Media Low Marks, L.A. Times, Nov. 27, 1983, § 11, at 1, col 5. But see Mueller, A Summary Of Public Opinion And The Vietnam War in VIETNAM AS HISTORY: TEN YEARS AFTER THE PARIS PEACE ACCORDS (P. Braestrup ed. 1984) (discussing the causes of American hostility to the War).
38. The Vietnam War was the first U.S. military engagement in which television played a significant role in reporting the events. For an interesting discussion of television and its influence on public opinion during the Vietnam War, see generally Lichty, Comments On The Influence Of Television On Public Opinion, in VIETNAM AS HISTORY: TEN YEARS AFTER THE PARIS PEACE ACCORDS 158 (P. Braestrup ed. 1984).
39. N.Y. Times, Oct. 26, 1983, at A1, col. 5.
40. Invasion Troops Trained to Make Surprise Raids, N.Y. Times, Oct. 26, 1983, at A16, col. 5.
41. Id.
42. N.Y. Times, Oct. 26, 1983, at A1, col. 1. See Text of Reagan's Announcement of Invasion, N.Y. Times, Oct. 26, 1983, at A16, col. 5 (setting forth contents of President Reagan's announcement of invasion).
43. See U.S. Allows 15 Reporters to Go to Grenada for Day, N.Y. Times, Oct. 28, 1983, at A13, col. 6 (stating that there were at least 300 reporters in Barbados). But see Coverage Efforts Thwarted, NEWS MEDIA & THE LAW, at 6 (Jan. 1984) (stating that within hours after Reagan announced the invasion, more than 400 journalists converged on Barbados).
44. Coverage Efforts Thwarted, supra note 43, at 6.
45. Id. Vice Admiral Joseph Metcalf, Grenada task force commander, was quoted as saying, ``Well, I know how to stop those press boats. We've been shooting at them. We haven't sunk any yet, but how are we to know who's on them.'' Admiral Says It Was His Decision to Tether the Press, N.Y. Times, Oct. 31, 1983, at A12, col. 3.
46. Coverage Efforts Thwarted, supra note 43, at 6; Admiral Says It Was His Decision to Tether the Press, supra note 45, at A12, col. 3.
47. U.S. Bars Coverage of Grenada Action: News Groups Protest, N.Y. Times, Oct. 27, 1983, at A1, col. 6. The flow of information from the Pentagon was slow. Fred Hoffman, an AP correspondent, reported that the Pentagon received information early in the morning of October 26 that six U.S. soldiers had been killed in Grenada, yet the Pentagon refused to confirm those reports until late that afternoon. Journalists Barred From Grenada Combat Area, L.A. Times, Oct. 27, 1983, §I, at 16, col. 1.
48. U.S. Allows 15 Reporters to Go to Grenada for Day, N.Y. Times, Oct. 28, 1983, at A13, col. 5; Coverage Efforts Thwarted, supra note 43, at 6.
49. Id.
50. Id. The fifteen reporters were part of a news pool. Id. They gathered information on the island and then shared it with all other reporters. Id.
51. Id.
52. Coverage Efforts Thwarted, supra note 43, at 6.
53. Id.
54. U.S. Press Curbs: The Unanswered Questions, N.Y. Times, Oct. 29, 1983, at A1, col. 1. During the military tour of the island, one Newsweek reporter broke from the group and failed to return. The military promptly dropped that magazine from the press pool. Newsweek Is Dropped from Grenada Visits, N.Y. Times, Oct. 30, 1983, at A22, col. 6.
55. Res. 208, 98th Cong., 1st Sess., reprinted in 129 Cong. Rec. S14957 (daily ed. Oct. 29, 1983). The resolution provided in pertinent part: ``Since a free press is an essential feature of our democratic system of government and since currently in Lebanon and traditionally in the past, the United States has allowed the press to cover conflicts involving United States armed forces, restrictions imposed upon the press in Grenada shall cease.'' Id.
56. U.S. Eases Restrictions on Coverage, N.Y. Times, Oct. 31, 1983, at A18, col. 2. The Reagan administration attempted to justify the exclusion of the press from Grenada by citing the need for surprise and the inability to guarantee the safety of reporters. N.Y. Times, Oct. 27, 1983, at A18, col. 2. Secretary of Defense Caspar Weinberger stated that he had left access decisions up to the military and that he ``wouldn't ever dream of overriding a commander's decision.'' Id. White House Press Secretary Larry Speakes probably more accurately described the reason for the press exclusion when, in answering a reporter's question about the administration's reason for the denial, he stated, ``You're carrying your management's water on this thing.'' Administration Limits News of Grenada, N.Y. Times, Oct. 27, 1983, at A23, col. 6. For an excellent panel discussion of the reasons postulated by the Reagan administration for the denial of press access, see generally The Grenada Experience, CENTER MAG., Sept.-Oct. 1984, at 53.
57. The media reacted to the Reagan administration's denial of press access to Grenada with controlled fury. Several telegrams denouncing the restraint were sent to the Pentagon and the White House. Coverage Efforts Thwarted, supra note 43, at 6. National columnists protested immediately. Anthony Lewis of the New York Times asked: ``What feared knowledge was President Reagan trying to keep from the American public on Grenada? Why did he bar the press from the invasion of that small island as General Eisenhower did not feel it necessary to do when his forces challenged the might of the Nazis?'' Lewis, What Was He Hiding, N.Y. Times, Oct. 30, 1983, at A19, col. 6. A New York Times editorial criticized the administration explanation: ``Safety? Let Mr. Weinberger consider the Iwo Jima memorial, not a mile from his office -- the Marines raising the flag on Mount Suribachi. How much safety does he think was guaranteed Joe Rosenthal of the Associated Press, who took the famous picture.'' Grenada -- and Mount Suribachi, N.Y. Times, Oct. 28, 1983, at A26, col. 1.

Other voices of dissent included Deputy Press Secretary Les Jenka, who resigned, saying the events in the Caribbean had damaged his credibility. L.A. Times, Nov. 1, 1983, § I, at 14, col. 3. CBS News President Edward Joyce and newsmen David Brinkley and John Chancellor appeared before Congress. They assailed the ban on firsthand news gathering in Grenada, calling the policy ``[t]he dawn of a new era of censorship.'' L.A. Times, Nov. 3, 1983, § 1, at 9, col. 1. Much of the controversy centered around charges that the Reagan administration and military officials had disseminated inaccurate information and unproven assertions. Taylor, In Wake of Invasion, Much Official Misinformation by U.S. Comes to Light, N.Y. Times, Nov. 6, 1983, at A20, col. 1. Further, the administration failed to disclose a U.S. Navy air attack on an unmarked Grenadian hospital in which at least twelve civilians were killed. U.S. Admits Air Attack on Hospital in Grenada, L.A. Times, Nov. 1, 1983, § I, at 1, col. 2. Official confirmation came six days after the attack and only after press accounts began to surface. Id.
58. A Second Look at the Off-the-Record War, TIME, Nov. 21, 1984, at 77.
59. The panel was composed of journalists, journalism professors, public information officers, and military representatives. Panel Supports Press Access to Combat, L.A. Times, Feb. 7, 1984, §I, at 7, col. 4. In August 1984, the Pentagon made public the panel's recommendations, announcing the general principle that news media coverage of U.S. military operations was essential and access should be allowed to the maximum degree possible. Chairman Of The Joint Chiefs Of Staff Media - Military Relations Panel (Sidle Panel), Report 3 (1984) [hereinafter Sidle Panel Report].
60. Sidle Panel Report, supra note 59, at 3. The panel was headed by Major General (retired) Winant Sidle, a former military press officer in Vietnam. Id.
61. Pentagon Forms War Press Pool; Newspaper Reporters Excluded, N.Y. Times, Oct. 11, 1984, at A1, col. 2. The pool included eleven press representatives including one correspondent each from the Associated Press and United Press International; one from a news magazine; one each from CBS, NBC, ABC and Cable News Service; a radio news broadcaster, a cameraman, a sound technician, and a still photographer. Id. See Pact Reached on Media Pool to Cover Military Operations, Wash. Post, Oct. 11, 1984, at A1, col. 4 (discussing the creation of the press pool). Following protest from newspapers, the Pentagon quickly agreed to include a newspaper reporter in the pool. Pentagon Plans to Add Newspaper Reporter as Member of its Press Pool, N.Y. Times, Oct. 12, 1984, at A1, col. 1.

Initial media reaction to the Sidle Report and the formation of the press pool was generally favorable, however, some press representatives criticized the vagueness of the report and the nonbinding nature of the guidelines. Compare Commander, or Censor, in Chief?, N.Y. Times, Sept. 17, 1984, at A18, col. 1 (the Sidle Report provides reasonable guidelines) with Zuckerman, Outlook: Don't be Co-opted by the Folks Who Brought Us Vietnam, Grenada, and the Iranian Rescue Fiasco, 3 COMM. LAW. 15 (1985) (Pentagon's rules represent licensing and censorship).
62. Jones, Editors Say Journalists Were Kept From Action, N.Y. Times, Dec. 22, 1989, at A19, col. 3. The press pool had been deployed previously in a noncombat situation in the Persian Gulf, when United States warships began escorting tankers there. Id.
63. Id. At the time of the Panama invasion, the pool consisted of 16 members: one reporter and one photographer each from the Associated Press, Reuters, and Time Magazine; a reporter from United Press International; a radio reporter from ABC News; a five-person television crew from NBC News; and three newspaper reporters. Id.
64. Id.
65. Gordon, Cheney Blamed for Press Problems in Panama, N.Y. Times, Mar. 20, 1990, at A8, col. 4.
66. Jones, supra note 62, at A19, col. 3.
67. Id.
68. Gordon, supra note 65, at A8, col. 4. News executives complained that by the time the pool arrived in Panama, most of the fighting had ended. Jones, supra note 62, at A19, col. 3.
69. Goodman, The Television Has Become a Weapon in Panama and Rumania, N.Y. Times, Dec. 26, 1989, at A18, col. 1.
70. Jones, supra note 62, at A19, col. 3.
71. Id.
72. N.Y. Times, Dec. 22, 1989, at A1, col. 6.
73. Gordon, supra note 65, at A8, col. 4. See The Pentagon Pool, Bottled Up, N.Y. Times, Jan. 15, 1990, at A16, col. 1 (editorial criticizing pool system).
74. Jones, supra note 62, at A19, col. 3.
75. Gordon, supra note 65, at A8, col. 4.
76. Id.
77. Gordon, Pentagon Seeks Tight Limits On Reporters in a Gulf War, N.Y. Times, Jan. 4, 1991, at A10, col. 1.
78. Id.
79. Id.
80. The proposed regulations included a ban on impromptu interviews with soldiers, prohibitions on reporting religious observations, and a ban on photographing soldiers wounded or in shock. Id. See Rosenstiel, Pentagon Softens Its Guidelines on News Coverage of Gulf War, L.A. Times, Jan. 8, 1991, at A10, col. 1 (discussing proposed regulations for press coverage).
81. Rosenstiel, supra note 80, at A10, col 1; Lewis, Pentagon Issues Press Rules Authorizing Military Censors, N.Y. Times, Jan. 8, 1991, at A10, col. 5; Lewis, Pentagon Adopts Gulf News Rules, N.Y. Times, Jan. 10, 1991, at A16, col. 6. Revised versions of the regulations were issued on January 14 and January 30, 1991. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1564 n.4 (S.D.N.Y. 1991).
82. Lewis, Pentagon Adopts News Rules, supra note 81, at A16, col. 5.
83. Rosenstiel & Lamb, Military, Media Face Off in Gulf, L.A. Times, Jan. 12, 1991, at A1, col. 1. Prior to the Persian Gulf war, correspondents had never been subject to both escorted movement and censorship.
84. Lewis, Government's Strict Orders Limit Reports, N.Y. Times, Jan. 18, 1991, at A11, col. 1.
85. Id. Most significantly, the lack of information prevented the press from reporting on the magnitude of the air war. Rosenbaum, Press and U.S. Officials at Odds on News Curbs, N.Y. Times, Jan. 20, 1991, § I, at 16, col. 3.
86. Lewis, Pentagon Adopts News Rules, supra note 81, at A16, col. 5. In some instances, journalists later learned that information withheld in the field was released by the Pentagon soon after. Browne, Conflicting Censorship Upsets Many Journalists, N.Y. Times, Jan. 21, 1991, at A10, col. 5.
87. Rosenbaum, supra note 85, at A16, col 3; Browne, supra note 86, at A10, col. 5; Balzar, Pool Reporting: There's Good News and Bad News, L.A. Times, Jan. 21, 1991, at A1, col. 5; Rosenthal, Bush's Tight Control, N.Y. Times, Jan. 23, 1991, at A8, col. 1.
88. Back Up the Bombing Boasts, N.Y. Times, Jan. 23, 1991, at A18, col. 1; Schiffer & Rinzler, No News Is No News, N.Y. Times, Jan. 23, 1991, at A19, col. 2; Rosenthal, War: The One-Week Jitters, N.Y. Times, Jan. 25, 1991, at A29, col. 1; Gergen, Military vs. Media: Both Can Win, L.A. Times, Jan. 28, 1991, at B5, col. 3.
89. See Apple, Press and the Military: Old Suspicions, N.Y. Times, Feb. 4, 1991, at A9, col. 4 [hereinafter Old Suspicions] (noting that the ``pool system may be on the verge of collapse''). One of the greatest drawbacks of the pool system was the limited number of positions available. Early estimates placed the number of pool reporters between 60 and 99, out of the more than 700 journalists with credentials in the Persian Gulf. Browne, supra note 86, at A10, col. 5 (speculating that there were ``about 60 pool reporters''); Balzar, supra note 87, at A1, col. 5 (estimating 99 combat pool reporters). As the conflict continued, the number of pool spots increased. See Apple, Correspondents Protest Pool System, N.Y. Times, Feb. 12, 1991, at A14, col. 1 [hereinafter Protest] (specifying that there were 126 in Pentagon pools); Berke, Pentagon Defends Coverage Rules, While Admitting to Some Delays, N.Y. Times, Feb. 21, 1991, at A14, col. 1 (estimating 192 pool members by end of week). However, the number of journalists in the Gulf also increased. See Protest, supra, at A14, col. 1 (reporting that there were more than 1000 accredited journalists); Berke, supra, at A14, col. 1 (stating there were more than 1400 journalists in Gulf region).
90. Old Suspicions, supra note 89, at A9, col. 4. But see Kifner, Reporters Get Out of the Pool to Get Their Feet Wet, N.Y. Times, Feb. 9, 1991, § I, at 7, col. 2 (indicating that pool member Brad Willis, NBC television correspondent, was present at Khafji).
91. See Restrictions on War Photos, N.Y. Times, Feb. 1, 1991, at A9, col. 3 (stating that some photographers skirting pool arrangement); Old Suspicions, supra note 89, at § I, at 7, col. 2 (noting that violation of Pentagon ground rules ``commonplace''); Kifner, supra note 90, at § I, at 7. col. 2.
92. Protest, supra note 89, at A14, col. 1. Some journalists also had their credentials confiscated by military officers. Reporter is Detained, N.Y. Times, Feb. 11, 1991, at A13, col. 5.
93. Berke, News From Gulf is Good, and Cheney's Press Curbs Are Loosened, N.Y. Times, Feb. 25, 1991, at A17, col. 3.
94. Id. According to various news executives, the blackout was motivated by the Pentagon's desire to control the dissemination of any bad news, rather than by the need for security. Rosenstiel, Battle Success Helps Soften News Blackout, L.A. Times, Feb. 25, 1991, at A8, col. 3.
95. Rosenstiel, supra note 94, at A8, col 3.
96. Id.
97. Berke, supra note 93, at A17, col. 3; Rosenstiel, supra note 94, at A8, col. 3.
98. Berke, supra note 93, at A8, col. 3.
99. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1565 (S.D.N.Y. 1991).
100. Flynt v. Weinberger, 588 F.Supp. 57, 58 (D.D.C. 1984).
101. Id.
102. Id. at 59. Flynt sought to avoid dismissal on mootness grounds by arguing that the case fell within the "capable of repetition, yet evading review" exception. See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (discussing the mootness exception for an action capable of repetition, yet evading review). The doctrine has been used in other press exclusion cases to overcome the mootness allegation. See, e.g., Globe Newspapers v. Superior Court, 457 U.S. 596, 603 (1982) (case was not moot because it could reasonably be assumed that Globe will someday be subjected to another trial close order); Gannett v. DePasquale, 443 U.S. 368, 377-78 (1979) (order closing pretrial hearing is too short in its duration to allow for review and it was possible publisher would again be subject to a similar closure order). See generally Note, The Mootness Doctrine in the Supreme Court, 88 HARV. L. REV. 373 (1974) (discussing the mootness doctrine and the recognized exceptions thereto).
103. Flynt v. Weinberger, 762 F.2d 134 (D.C. Cir. 1985). The case was remanded with instructions to dismiss on mootness grounds, but without prejudice. Id. Judge Edwards concurred, but wrote a separate opinion in which he stated that the court did not reach the mootness question with regard to the issue of whether the government can constitutionally deny access on the basis of danger to the press (where an allegation is made that the government's actual motivation is to prevent unfavorable press coverage) because the issue was raised for the first time on appeal. Id. at 136.
104. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1560 (S.D.N.Y. 1991). See Rosenstiel & Lamb, supra note 83, at A16, col. 1; Old Suspicions, supra note 89, at A9, col. 4 (discussing the lawsuit filed against the Department of Defense).
105. Nation Magazine, 762 F. Supp. at 1560-61.
106. Id. at 1565-66. Prior to the hearing on the motion to dismiss, the action by The Nation was consolidated with a similar action by Agence France-Presse (AFP), a French wire service. Id. Since AFP had undeniably been excluded from the pools, the court found that the plaintiffs had standing to challenge the pooling regulations. Id.
107. Id. at 1566-68. The court concluded that the question of restrictions on press access did not implicate the President's Article II powers as Commander-In-Chief, as contended by DOD. Id.
108. Id. at 1568-75. The court found that the claims for injunctive relief were moot because the regulations had been lifted on March 4, 1991, prior to the hearing on the motion to dismiss. Id. at 1562. With regard to the claims for declaratory relief, however, the court found that the action satisfied the ``capable of repetition, but evading review'' test because the claims had been broadly framed and DOD had lifted but not abrogated the regulations. Id. Thus, the plaintiffs in this case were able to surmount the barrier that precluded the plaintiff in Flynt v. Weinberger, 762 F.2d 134, 135 (D.C. Cir. 1985) from pursuing his case.
109. Nation Magazine, 762 F. Supp. at 1575. The court treated this question as a second part of the mootness inquiry. Id. at 1571-75. The court reasoned that because resolution of these claims would require the court to ``define the outer constitutional boundaries of access,'' the court would decline to exercise its power to grant declaratory relief. Id. at 1572.
110. Near v. Minnesota, 283 U.S. 697 1931). The only exceptions recognized by the Near court, in dicta, were for matters of national security and obscenity. Id. at 716. See infra notes 117-129 and accompanying text (discussing the national security exception).
111. 283 U.S. 697 (1931). The idea of an antagonistic and adversary press was a primary consideration in the adoption of the First Amendment. New York Times Co. v. United States, 403 U.S. 713, 717 (1971). However, it was not until Near that the Court affirmed that central meaning of the amendment. See Near, 283 U.S. at 719-21; see also Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROBS. 648 (1955) (discussing the doctrine of prior restraint).
112. See Jeffries, Rethinking Prior Restraints, 92 YALE L.J. 409 (1983) (historic protection of doctrine superseded by expanded coverage of First Amendment); Barnett, The Puzzle of Prior Restraints, 29 STAN. L. REV. 539 (1977) (doctrine diminishes protection of speech not labeled prior restraint).
113. See New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (six concurring justices reject application for restraining order barring publication of classified government information using doctrine as basis of opinion); Nebraska Press Ass'n v. Stewart, 427 U.S. 539, 570 (1976) (unanimous decision rejects gag order in pretrial context as unconstitutional prior restraint); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971) (injunction halting distribution of pamphlets is prior restraint, notwithstanding alleged invasion of privacy); Oklahoma Publishing Co. v. Oklahoma County, 430 U.S. 308, 311 (1977) (per curium) (reversal of trial court order restricting publication of name and photograph of juvenile charged with murder).
114. Near, 283 U.S. at 705.
115. Id. at 722. The court observed:

Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guarantee is that even a more serious public evil would be caused by authority to prevent publication. Id.
116. Near, 283 U.S. at 716. See Goldblum v. NBC, 584 F.2d 904, 907 (9th Cir. 1978) (holding that a court order requiring production of film for viewing by court before public release is unconstitutional). The court in Goldblum observed: ``It is a fundamental principal of the First Amendment that the press may not be required to justify or defend what it prints or says until after the expression has taken place.'' Id. at 907.
117. Near, 283 U.S. at 716. Chief Justice Hughes stated that ``no one would question but that a government might prevent actual obstruction to its recruiting service or the publication of sailing date of transports or the number and location of troops.'' Id. Prior to New York Times Co. v. United States, 403 U.S. 713 (1971), discussed infra at notes 119-129 and accompanying text, the Hughes dicta was the sole constitutional authority directly relating to the problem of exceptions to the doctrine of prior restraint in cases involving conflict between the free press and national security. See generally Note, The National Security Exception to the Doctrine of Prior Restraint, 13 WM. & MARY L. REV. 214 (1971).
118. See New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (discussing the national security exception to the doctrine of prior restraint).
119. 403 U.S. 713 (1971).
120. Id. The New York Times and the Washington Post obtained copies of a classified study entitled ``History of United States Decision-Making Process of Vietnam Policy.'' United States v. New York Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971), rev'd., 444 F.2d 544 (2d Cir. 1971), rev'd., 403 U.S. 713 (1971); United States v. Washington Post Co., 446 F.2d 1322 (D.C. Cir. 1971). These materials become known as the ``Pentagon Papers.'' Id.
121. New York Times, 403 U.S. at 713. The government based its power to impose prior restraints on the press upon the constitutional power of the President over the conduct of foreign affairs and on the Espionage Act of 1917. Id. at 733-34.
122. Id. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558-59 (quoting Pillsbury Press Co. v. Human Relations Comm., 413 U.S. 376, 396 (1973) (Bunger, C.J. dissenting)).
123. Id. at 718-19.
124. The interim restraining order, if granted, would have temporarily halted publication.
125. New York Times Co., 403 U.S. at 726-27 (Brennan, J., concurring). Justice Stewart stated that he could not say "disclosure of any of [the documents] will surely result in direct, immediate, and irreparable damage to our nation or its people." Id. at 730 (Stewart, J., concurring).
126. 427 U.S. 539 (1976).
127. Id. at 542-44. The case involved the murder of a Nebraska family. Id. The order specifically prohibited the media from reporting on five subjects: (1) The existence or contents of a confession the accused had given to police and which the prosecution introduced at the arraignments; (2) any statements made by the accused to other persons; (3) contents of a note written by the accused; (4) aspects of the medical testimony at the preliminary hearing; and (5) the identity of the victims of the alleged sexual assault and the nature of the assault. Id. at 543-44. See W. FRANCOIS, MASS MEDIA LAW AND REGULATION 366 (3d ed. 1982) (discussing the Nebraska Press case).
128. Nebraska Press Ass'n., 427 U.S. at 542-44.
129. Id. at 559. The majority, however, did not rule out the possibility that the composition of the gag order might pass constitutional muster where the trial court has exhausted all other measures aimed at ensuring a fair trial. Id. at 563. Cf. Sheppard v. Maxwell, 384 U.S. 333, 357-62 (1966) (murder conviction overturned based on adverse pretrial publicity; court suggested options for trial judge to prevent impairment of sixth amendment right to fair trial).
130. In Panama, three reporters were detained briefly by American troops the day before the invasion, but apparently they were not prevented from reporting. See News Personnel Detained, N.Y. Times, Dec. 20, 1989, at A8, col. 6.
131. In the Persian Gulf, numerous reporters were detained for violating the pool restrictions once the war had begun. See supra notes 61-98 and accompanying text (discussing the press pool). Because of the long prelude to hostilities, however, no prebattle detention occurred.
132. See supra notes 39-61 and accompanying text (discussing the invasion of Grenada).
133.The correspondents said they thought the military would allow them to use the ship's communications equipment. U.S. Allows 15 Reporters to Go to Grenada for Day, N.Y. Times, Oct. 28, 1983, at A13, col. 5.
134. Id.
135.In the aftermath of the invasion, the military failed to offer any explanation for the detention of the correspondents. Absent an explanation, one can reasonably conclude that the removal and detention of the journalists was accomplished with the intent to prevent publication.
136. The Supreme Court has defined a ``prior restraint'' as any governmental prepublication interference with a person's right of expression. Near v. Minnesota, 283 U.S. 697, 716 (1931); Organization for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971). Any prior restraint on expression comes to the court with a heavy presumption against its constitutional validity. Carrol v. President & Commrs. of Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The government carries the burden of showing justification for the imposition of a prior restraint. Keefe, 402 U.S. at 417.
137.The New York Times Co. v. United States decision clearly implies that there is no change in the presumption of unconstitutionality and the heavy burden to justify a prior restraint when the government alleges national security. New York Times Co. v. United States, 403 U.S. 713, 721 (1970). See generally Note, Access to Official Information: A Neglected Constitutional Right, 27 IND. L.J. 209, 229 (1951).
138. Compare Text of Reagan's Announcement of Invasion, supra note 42, at A16, col. 1 (dateline October 25, 1983) with U.S. Allows Reporters to Go to Grenada for Day, N.Y. Times, Oct. 28, 1983, at A13, col. 5 (dateline October 27, 1983) (journalists removed from island).
139. Although the Court has never had occasion to consider less restrictive alternatives in a prior restraint case involving national security, the Court has indicated that it is part of the test. In New York Times Co. v. United States, 403 U.S. at 713, the Court, in the per curiam section of the opinion, cites Keefe for the proposition that any prior restraint carries a heavy burden of justification. Id. Keefe cites Carrol, 393 U.S. 175 (1968), for the same proposition. Keefe, 402 U.S. at 416. The Court in Carrol clearly used the less restricted alternative test to reach its decision. Carrol, 393 U.S. at 181.
140. Few journalists would dispute the government's right in a military situation to review correspondents' stories before transmission. See Editorial, News Media & The Law, Jan. 1984, at 3.
141. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 785-89 (2d ed. 1988). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392 (1969). Justice White, speaking for a unanimous court observed:

It is the purpose of the First Amendment to preserve the uninhibited marketplace of ideas in which truth will ultimately prevail. . . . It is the right of the public to receive suitable access to social, political, ethnic, moral and other ideas and experiences which is crucial here. That right may not constitutionally be abridged by either Congress or the FCC. Id. at 390.
142. For instance, Thomas Jefferson believed the press had the right to criticize the conduct of public officials. L. LEVY, FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON 355 (1966). James Madison wrote that ``[t]he right of freely examining public characters and measures, and of free communication thereon, is the only effective guardian of every other right.'' 6 WRITINGS OF JAMES MADISON 398 (1906). The Supreme Court found that the Continental Congress assented to the proposition that a free, critical press would benefit the country. Thornbill v. Alabama, 310 U.S. 88, 102 (1940).
143. Red Lion, 395 U.S. at 390. See Buckley v. Valeo, 424 U.S. 1, 14 (1976) (discussion of public issues vital to function of government); Roth v. United States, 354 U.S. 476, 484 (1957) (First Amendment designed to encourage interchange of ideas); Associated Press v. United States, 326 U.S. 1, 20 (1945) (widest dissemination of information essential to public welfare).
144. See Mills v. Alabama, 384 U.S. 214, 219 (1966) (the Court stated: "Suppression of the right of the press to praise or criticize governmental agents . . . muzzles one of the very agencies the framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free"). The Court expressed a similar view in Estes v. Texas, 381 U.S. 532, 539 (1965) stating: "The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . . . ." Estes, 381 U.S. at 539.
145. Saxbe v. Washington Post Co., 417 U.S. 843, 863 (1974) (Powell, J., dissenting) (stating: ``No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities.").
146. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975). The Court observed:

[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media. . . . Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. Id.
147. Nixon v. Warner Communications, Inc., 435 U.S. 589, 609. The majority observed:

Our decision in [Cox Broadcasting] merely affirmed the right of the press to publish accurately information contained in court records open to the public. Since the press serves as the information-gathering agent of the public, it could not be prevented from reporting what it had learned and what the public was entitled to know. Id. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586 n.2 (1979) (Brennan, J., concurring) (stating: ``The institutional press is the likely, and fitting chief beneficiary of the right of access because it serves as the `agent' of interested citizens. . . .''); Herbert v. Lando, 441 U.S. 153, 189 (1979) (Brennan, J. dissenting) (arguing for recognition of editorial privilege because it would shield the press in its function as an agent of the public); Saxbe, 417 U.S. at 863 (Powell, J., dissenting) (stating that since it is unrealistic for most citizens to be personally familiar with all newsworthy events, the press acts as an agent of the public when it gathers news).
148. Zemel v. Rusk, 381 U.S. 1, 13 (1965) (right to speak and publish does not carry with it an unrestrained right to gather information).
149. Kleindienst v. Mandel, 408 U.S. 753, 764-65 (1972) (recognized First Amendment rights were implicated by denial of visa to marxist professor, who was to speak at American universities).
150. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 682-88 (1972) (Court reached the decision that journalist have no privilege not to answer grand jury subpoena by balancing competing societal interests); Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (government interest in regulating entry of aliens outweighed citizens' right to hear marxist professor).
151. See, e.g., Bursey v. United States, 466 F.2d 1059, 1089 (9th Cir. 1972) (reh'g denied, 466 F.2d 1090 (1972) (court compelled answers to some grand jury questions); In re Grand Jury Subpoena, 5 Media L. Rep. (BNA) 1153 (D.C. Tex. 1979) (objection to production of unpublished grand jury tapes sustained).
152. See, e.g., United States v. Hubbard, 493 F. Supp. 202, 205 (D. D.C. 1976) (subpoena quashed in suppression hearing); United States v. Orsini, 424 F. Supp. 229, 235-36 (E.D.N.Y. 1976) aff'd, 559 F.2d 1206 (2d Cir. 1976), cert. denied, 434 U.S. 997 (1977) (subpoena quashed in motion to dismiss); State v. Saint Peter, 132 Vt. 266, 315 A.2d 254, 256 (1974) (directions regarding discovery issued to court below).
153. See, e.g., Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429, 431 (1974), cert. denied, 419 U.S. 966 (1974); Zelenka v. State, 82 Wis.2d 601, 266 N.W.2d 279, 287 (1978) (affirming the trial court's decision not to compel disclosure).
154. See, e.g., Farr v. Pitchess, 522 F.2d 464, 469 (9th Cir. 1975) (denial of petition for writ of habeas corpus after incarceration for failure to disclose), cert. denied, 427 U.S. 912 (1976).
155. See, e.g., Opinion of Justices, 117 N.J. 386, 373 A.2d 644, 646 (1977) (disclosure denied).
156. See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 599 (1st Cir. 1980) (remand with directions); Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1974), cert. dismissed, 417 U.S. 938 (1974) (disclosure ordered); Mize v. McGraw-Hill, 82 F.R.D. 475, 478 (S.D. Tex. 1979) (1979), aff'd. on reh'g, 86 F.R.D. 1 (S.D. Tex. 1980) (disclosure denied); Senear v. Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180, 1184 (1982) (remand with directions).
157. 408 U.S. 665 (1972). In the earlier case of Zemel v. Rusk, 381 U.S. 1 (1965) the court had implied that news gathering merited some First Amendment protection. Zemel, 381 U.S. at 16.
158. Branzburg, 408 U.S. at 667. The case involved a Louisville-Courier reporter who had written an article concerning the manufacture of hashish. Id. at 667. He promised anonymity to the two persons he had interviewed and observed working with the substances. Id. at 667-68. After the story appeared, a grand jury subpoenaed Branzburg to testify. Id. at 668. He appeared, but refused to name his sources. Id. at 668, 670.
159. Id. at 681.
160. Id. Justice Stewart, although dissenting from the majority's conclusion that the press must respond to a grand jury subpoena, agreed with the majority's statement regarding news gathering:

In keeping with this tradition [of press independence], we have held that the right to publish is central to the First Amendment and basic to the existence of constitutional democracy. A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated.
Id. at 727 (Stewart, J., dissenting) (citations omitted).
161. 443 U.S. 368 (1979).
162. Id. at 379-84.
163. Id. at 392. The Court stated: ``We need not decide in the abstract however, whether there is any such constitutional right.'' Id.
164. Bolbach, Access to Information: Affirming the Press' Right, Christian Century, Sept. 24, 1980, Vol. 97, at 881 (stating that in response to the Gannett ruling, more than 260 attempted trial closings were documented between July of 1979 and July of 1980).
165. 448 U.S. 555 (1980) (plurality decision).
166. Id. at 558 (Burger, C.J., with White, J. and Stevens, J., announcing the judgment of the court). The court stated: ``We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment.'' Id. ``Because I believe that the First Amendment . . . secures such a public right of access, I agree with . . . my Brethren . . . .'' Id. at 585. (Brennan, J., with Marshall, J., concurring). Justice Stewart, concurring, stated: ``[T]he First and Fourteenth Amendments clearly give the press and the public the right to access to trials themselves, civil as well as criminal.'' Id. at 599 (Stewart, J., concurring). Also, in concurrence, Justice Blackmun stated: ``I am driven to conclude . . . that the First Amendment must provide some measure of protection for public access to the trial.'' Id. at 604 (Blackmun, J., concurring).
167. The Chief Justice traced the history of the trial back to the Norman conquest. Id. at 564-73. For an interesting discussion of the question left open by Richmond Newspapers, see generally Comment, After Richmond Newspapers: A Public Right to Attend Civil Trials?, 4 COMMENT 241 (1982).
168. 448 U.S. at 577. See generally Note, The Richmond Newspapers Case: Creation of a First Amendment Right of Access, 14 U.C. DAVIS L. REV. 1081 (1981-1982).
169. 457 U.S. 596 (1982).
170. Id. at 606. Justice Brennan, writing for a five-justice majority, declared unconstitutional a Massachusetts statute which closed trials during the testimony of minor victims of specific sex offenses. Id.
171. Id. at 605-06.
172. Id. at 606-07. Justice O'Connor concurred only in the judgment of the court, noting that she did not interpret Globe Newspapers or Richmond Newspapers to be applicable outside the context of criminal trials. Id. at 611 (O'Connor, J., concurring in the judgment).
173. 464 U.S. 501 (1984).
174. Id. at 513. Justice Marshall concurred in the judgment of the court only and filed a separate opinion in which he argued that greater government interest must be shown before the presumption of openness can be overcome. Id. (Marshall, J., concurring in the judgment).
175. Id. at 512. The court held that the presumption of openness could only be overcome ``by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'' Id. at 514. The court found the trial court's closure order unconstitutional, noting that the lower court had not made any specific findings or considered alternatives to closure. Id.
176. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
177. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980); Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 606 (1982); Press Enterprise, 464 U.S. at 512.
178. Richmond Newspapers, 448 U.S. at 577; Globe Newspapers, 457 U.S. at 606; Press Enterprise, 464 U.S. at 512.
179. Richmond Newspapers, 448 U.S. at 577; Globe Newspapers, 457 U.S. at 606; Press Enterprise, 464 U.S. at 512.
180. Pell v. Procunier, 417 U.S. 817, 830 (1974). The district court noted that prison officials linked a liberal press access policy to an escape attempt in which three staff members and two inmates were killed. Id. at 832.
181. See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (stating that prison administrators ``should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security''). See also Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128 (1977) (discussing the judicial deference afforded when reviewing prison administrative decisions).
182. 417 U.S. 817 (1974).
183. 417 U.S. 843 (1974).
184. Pell, 417 U.S. at 834. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (stating that government-controlled information is information not otherwise available to the public generally). In Nixon, the Court held that the press had no right of physical access to the Watergate tapes because the public did not have a right of access to such evidence. Id. at 783.
185. The facts involved in both cases were virtually identical and Justice Stewart authored both majority opinions. Compare Pell, 417 U.S. at 821-23 with Saxbe, 417 U.S. at 846-48.
186. Pell, 417 U.S. at 831-32. Prison officials initiated the interview prohibition following prison violence that they claimed was linked, in part, to media attention concentrated on a few chosen inmates. These prisoners acquired notoriety and influence over other inmates. Id.
187. In Pell, section 415.071 of the California Department of Corrections Manual provided: ``[P]ress and other media interviews with specific individual inmates will not be permitted.'' Pell, 417 U.S. at 819. In Saxbe, the relevant Federal Bureau of Prisons Policy Statement provided: ``Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public if it is limited to the discussion of an institutional facilities programs and activities.'' Saxbe, 417 U.S. at 844.
188. Pell, 417 U.S. at 835; Saxbe, 417 U.S. at 850.
189. See supra notes 150-156 and accompanying text (discussing application of the balancing test).
190. Saxbe, 417 U.S. at 849. This analysis implies that the government could constitutionally restrict the free flow of information guaranteed by the First Amendment by simply denying access equally to both the press and the public. Such a drastic result could not have been intended by the majority. See supra and infra notes 183-193 and accompanying text (discussing the reasoning of the Saxbe decision).
191. Pell, 417 U.S. at 834.
192. Id. at 830. The Court seemed anxious to stress the fact that other means of acquiring information about prison conditions were readily available to the media. Prison policy restricted only face-to-face interviews. The Court observed:

We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. Id. In Saxbe, the Court expressed similar reliance: ``Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to federal prisons in order to observe and report the conditions they find there.'' Saxbe, 417 U.S. at 847. The court also noted that press representatives could arrange to tour the prison and photograph any prison facility. Id. Additionally, inmates could correspond with members of the press. Id.
193. Saxbe, 417 U.S. at 847-49.
194. 438 U.S. 1 (1978) (plurality opinion of Burger, C.J.).
195. Id. at 6. The Chief Justice attempted to show that there were other means available to obtain information about the prison, such as correspondence. Id. The dissent correctly demonstrated, however, that correspondence and telephone privileges did not offer the public or the press opportunity to observe conditions. Id. at 26 n.14. (Stevens, J., dissenting).
196. See supra notes 39-57 and accompanying text (discussing the media blackout in Grenada).
197. See supra notes 77-99 and accompanying text (discussing the media blackout in the Persian Gulf).
198. Houchins, 438 U.S. at 29 (Stevens, J., dissenting).
199. Id. at 37. The Santa Rita jail is located in Alameda County, California. A substantial number of its inmates were pretrial detainees. Id. (Stevens, J., dissenting).
200. See Brenneman v. Madigan, 343 F. Supp. 128, 133 (N.D.Cal. 1972) (holding that conditions at the Greystone building were deplorable). ``The shocking and debasing conditions which prevailed there constituted cruel and unusual punishment for man or beast as a matter of law.'' Id.
201. KQED, Inc. v. Houchins, 18 Crim. L. Rep. (BNA) 2252, 2253 (N.D.Cal. 1975), aff'd, 546 F.2d 284 (9th Cir. 1977) . For a good review of the Ninth Circuit decision, see generally Note, Ninth Circuit Holds Press Entitled to Greater Access to Prison Than Public, 45 FORDHAM L. REV. 1524 (1977).
202. Houchins, 438 U.S. at 16. Justice Blackmun was ill at the time and did not participate in the decision. Justice Marshall also did not participate, presumably because he was once general counsel for the National Association for the Advancement of Colored People, which was a party to the action.
203. Id. at 8 (plurality opinion of Burger C.J.).
204. Id. at 9. Also, in addition, the plurality found no basis for a constitutional duty to disclose and did not set standards governing disclosure of information. Id. at 14.
205. Id. at 16 (Stewart, J., concurring). Justice Stewart disagreed with the plurality on the meaning of ``equal access.'' He argued: ``That the First Amendment speaks separately of freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society. The Constitution requires sensitivity to that role and to the special needs of the press in performing it effectively.'' Id. at 17. For an interesting discussion of the distinctions between the press and speech clauses, see generally Note, The Right of the Press to Gather Information, 71 COLUM. L. REV. 838 (1971).
206. Houchins, 438 U.S. at 18. Justice Stewart would have upheld the district court order requiring press access to the jail on a more frequent basis and allowing the press to bring cameras and other recording equipment. Id.
207. Id. at 18. The district court order required press access to the Greystone building and allowed random interviews with inmates. Thus, the order permitting press access to areas and sources not granted to the public. Id.
208. Id. at 30 (Stevens, J., dissenting).
209. Id. at 32. The dissent did, however, recognize that some functions of the government necessarily require secrecy, such as grand jury proceedings, the court's own conferences, and executive sessions. Id. at 35. The dissent concluded that there is no legitimate penological justification for concealing the condition of prisoners. Id. at 36.
210. Pell v. Procunier, 417 U.S. 817, 835 (1974).
211. Id.
212. Houchins, 438 U.S. at 30 (Stevens, J., dissenting) (public and press consistently denied access to areas where inmates confined and mail censored).
213. See Publicker Indus. v. Cohen, 733 F.2d 1059, 1066-71 (3d Cir. 1984) (applying three-part test to allow access to civil trial); Cassel, supra note 6, at 958 (Globe and Richmond suggest a three part test); Note, The First Amendment Right of Access to Civil Trials After Globe Newspapers Co. v. Superior Court, 51 U. CHI. L. REV. 286, 290 (1984) (applying Globe as a model for determining access rights to governmental proceedings).
214. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 605 (1982). In at least one context, the need to show a history of openness has been called into question by a lower court. See United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983). In Chagra, the Fifth Circuit Court of Appeals stated: ``Because the First Amendment must be interpreted in the context of current values and conditions [citations omitted], the lack of an historic tradition of open bail reduction hearings does not bar our recognizing a right of access to such hearings.'' Id. at 363.
215. Globe Newspapers, 457 U.S. at 606.
216. Id.
217. It must be conceded that the press cannot show an unbroken history of access to military operations, but neither could the press show an unbroken history of access to the criminal trial. Courtrooms had been closed for a variety of reasons prior to Richmond Newspapers. See, e.g., United States v. Bell, 464 F.2d 667, 670-71 (2d Cir. 1972) (public properly excluded from criminal trial in order to maintain confidentiality of ``hijacker profile''), cert. denied, 409 U.S. 991 (1972); United States ex rel Lloyd v. Vincent, 520 F.2d 1272, 1273-74 (2d Cir. 1975) (courtroom cleared to maintain secrecy of government undercover agents), cert. denied, 423 U.S. 937 (1975); United States ex rel Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977) (trial court excluded public but not press during the testimony of rape victim), cert. denied, 434 U.S. 1076 (1978).
218. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392 (1969).
219. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975).
220. Saxbe v. Washington Post Co., 417 U.S. 843 (1974). The press acts as public agent when gathering information. Id. at 863.
221. See Cox Broadcasting Corp., 420 U.S. at 491 (the public necessarily relies on the press to provide information).
222. For instance, the White House, closed to the general public, is accessible to a corp of journalists and photographers. The press is routinely allowed access to Pentagon briefings and news conferences to which the public is not invited. When the military unveils a new weapon, the press, not the public, is generally asked to observe the demonstration.
223. Lewis, A Public Right to Know About Public Institutions: The First Amendment as Sword, 1980 SUP. CT. REV. 1, 23. Anthony Lewis argues that this second factor should be phrased in terms of accountability: ``The question in each case should be whether the closing of a governmental institution to the public, the denial of access prevents accountability.'' Id. If closure denies the public any effective way to scrutinize the institution, Lewis would urge access. Id. at 24.
224. The military's budget last year amounted to more than $286 billion. 1991 ALMANAC, St. Martin Press, at 102.
225. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 606 (1982). ``Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process . . . . ''. Id. See Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (plurality opinion) (Brennan, J., concurring in judgment) (stating that publicizing a trial aids accurate fact finding).
226. Cassel, supra note 6, at 961. While Cassel acknowledges this argument with respect to the judicial process, he contends that similar concerns do not arise in the military context. Cassel grudgingly admits that the public should know how the troops are faring, but denies that the press facilitates that function. Instead, the author would relegate that function to congressional hearings. Id. It is hard to imagine a more important and accepted function of the press in wartime. It is unclear how a congressional hearing could accomplish that function.
227. See Globe Newspapers, 457 U.S. at 607 (attempt to deny access to inhibit disclosure of sensitive information must be necessitated by a compelling interest and narrowly tailored).
228.Gannett Co. v. De Pasquale, 443 U.S. 368, 400-01 (1979). Justice Powell suggested the following test:
1. Whether alternative means are available so that fairness may be preserved.
2. Any exclusion order may go no further than necessary to achieve that goal.
3. The public and the press must be given an opportunity to be heard. Id. (Powell, J., concurring). Justice Blackmun suggested stricter standards:
1. Irreparable damage to defendant's right of fair trial will result.
2. Alternatives will not adequately protect that right.
3. Closure will be effective in protecting against the perceived harm. Id. at 440-42 (Blackmun, J., concurring). The lower federal courts and state courts are divided, with neither test commanding a clear majority. See, e.g. United States v. Chagra, 701 F.2d 354, 364-65 (5th Cir. 1983) (combination of tests adopted); United States v. Brooklier, 684 F.2d 1159, 1162 (9th Cir. 1982) (Blackmun test with two procedural prerequisites adopted); United States v. Powers, 622 F.2d 317, 323 (8th Cir. 1980) (Blackmun test adopted), cert. denied, 449 U.S. 837 (1980).
229. 701 F.2d 354, 365 (5th Cir. 1983). The court formulated the test as follows:

We hold that a defendant seeking closure of a pretrial bond reduction hearing overcomes the First Amendment right of access to that hearing if he shows that:
(1) his right to a fair trial will likely be prejudiced by conducting the hearing publicly;
(2) alternatives to closure cannot adequately protect his fair trial right; and
(3) closure will probably be effective in protecting against the perceived danger. Id.
230. Invasion Troops Trained to Make Surprise Raids, N.Y. Times, Oct. 26, 1983, at A16, col. 5.
231. After the invasion, military officials and others argued that the Grenada raid was a lightning-quick commando-style rescue mission. Compare Curbs on Grenada News Reporter Hit, L.A. Times, Nov. 3, 1983, § I, at 9, col. 1 (California Rep. Carlos Moorhead (R. Glendale) described Grenada invasion as ``a rescue mission using commando-tactics'' much like the Iran hostage rescue attempt) with ABC News Program Viewpoint, 1984: Secrecy, Security And The Media 6 (Jan. 19, 1984) (Statement of Jack Nelson, Los Angeles Times Washington Bureau Chief) (``I don't think anybody accepts that it was strictly a commando-style operation. It was an invasion of almost traditional kind of planning.'') and id. at 5 (statement of Michael Burch, Ass't Sec'y of Defense for Public Affairs) (``It was not a set battle plan such as journalists are used to covering with our forces. It was basically a commando-style operation where the first forces were to get the students that were to be rescued, secure them and, basically, wait for rescue themselves.'').
232. Flynt v. Weinberger, 588 F. Supp. 57, 58 (D.D.C. 1984) (declaration of Ass't Sec'y of Defense Michael Burch). Burch said there was no way to inform the press in advance with the assurance that the information and the operation would not be compromised. Declaration of Michael Burch at 12.
233. The sheer size of the invasion force undercuts the Pentagon's claim that this was a commando-style rescue raid similar to the American hostage rescue attempt in Iran. More than 1900 soldiers were involved in the invasion of Grenada, whereas only 180 soldiers were involved in Iran. B. Ryan, The Iranian Rescue Mission: Why it Failed, 1985 U.S. NAVAL INSTITUTE, at 1.
234. See U. S. Bars Coverage of Grenada Action: News Groups Protest, N.Y. Times, Oct. 27, 1983, at A1, col. 6 (commenting that Department of Defense photographers accompanied invasion force).
235. Flynt v. Weinberger, 588 F. Supp. 57, 58 (D. D.C. 1984); Declaration of Michael Burch at 13. The military did not want media aircraft using the runway and no military aircraft were available to transport reporters. Id. See Reporting the News in a Communique War, N.Y. Times, Oct. 26, 1983, at A1, col. 3 (officials claimed media presence would complicate logistical problems).
236. The Supreme Court has exhibited a willingness to undertake full review of military affairs. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 679-82 (1973) (review of statutes requiring women but not men to prove spousal dependency to receive benefits); Brown v. Glines, 444 U.S. 348, 349 (1980) (First Amendment challenge of regulation prohibiting solicitation of signatures without official approval); Greer v. Spock, 424 U.S. 828, 830-34 (1976) (review of base commander's decision to exclude political speakers from base). However, the court has recognized the need to allow the military flexibility in the operation of the armed forces. See, e.g., Chappell v. Wallace, 462 U.S. 296, 304 (1983) (judges should not run the military); Rostker v. Goldberg, 453 U.S. 57, 66 (1981) (need for "healthy deference to legislative and executive judgments in the area of military affairs"); Orloff v. Willoughby, 345 U.S. 83, 92 (1953) ("a large area of discretion as to particular duties must be left to commanding officers").
237. For instance, the Pell court considered the amount of deference it should pay to prison administration decisions in light of alternate channels of communications available to prisoners. Pell v. Procunier, 417 U.S. 817, 827-28 (1974).
238. U.S. Bars Coverage of Grenada Action; News Groups Protest, N.Y. Times, Oct. 27, 1984, at A23, col. 6. "Confusing and fragmentary information was offered and [White House Press Secretary Larry] Speaks, complaining about the accuracy of some news reports, ultimately refused to take additional questions from one reporter he considered annoying. `I'm tired of dealing with you,' he said. `You're carrying your management's water on this thing,' he said to another reporter, who had asked why reporters could not go to the island." Id. See U.S. Admits Air attack on Hospital in Grenada, L.A. Times, Nov. 1, 1983, § I, at 1, col. 2 (confirmation of attack of civilian hospital came only after reports surfaced in the press).
239. In some few situations, however, such as lightning-quick, small-scale rescue raids, there may be no less restrictive alternatives to total exclusion. Even the most ardent access proponents concede that some military operations are not conducive to press participation or necessarily must remain secret even from trusted war correspondents. See Landau, Excluding the Press from the Grenada Invasion: A Violation of the Public's Constitutional Rights, Editor and Publisher, Dec. 10, 1983, at 10 (quick, in-and-out rescue missions, such as the Iranian hostage rescue attempt, cannot be constitutionally accessible to the press).
240. See supra notes 62-70 and accompanying text (discussing the restrictions placed upon the press pool in Panama).
241. See supra note 75 and accompanying text (discussing the effectiveness of the press pool in Panama).
242. Jones, Editors Say Journalists Were Kept From Action, N.Y. Times, Dec. 22, 1989, at A19, col. 3.
243. Gordon, Cheney Blamed for Press Problems in Panama, N.Y. Times, Mar. 20, 1990, at A8, col. 4 (quoting a report by Fred S. Hoffman).
244. Balzar, supra note 87, at A23, col. 1. Pool reporters had "mostly open access to the fighting and support troops." Id. There were some complaints, however, that the pool had limited access to ground forces. See Old Suspicions, supra note 89, at A9, col. 4.
245. See supra notes 27-34 and accompanying text (discussing the security review system employed during the Korean War).
246. See Rosenstiel, supra note 94, at A20, col. 2.
247. Id. 161-end 161. 443 U.S. 368 (1979).
162. Id. at 379-84.
163. Id. at 392. The Court stated: ``We need not decide in the abstract however, whether there is any such constitutional right.'' Id.
164. Bolbach, Access to Information: Affirming the Press' Right, Christian Century, Sept. 24, 1980, Vol. 97, at 881 (stating that in response to the Gannett ruling, more than 260 attempted trial closings were documented between July of 1979 and July of 1980).
165. 448 U.S. 555 (1980) (plurality decision).
166. Id. at 558 (Burger, C.J., with White, J. and Stevens, J., announcing the judgment of the court). The court stated: ``We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment.'' Id. ``Because I believe that the First Amendment . . . secures such a public right of access, I agree with . . . my Brethren . . . .'' Id. at 585. (Brennan, J., with Marshall, J., concurring). Justice Stewart, concurring, stated: ``[T]he First and Fourteenth Amendments clearly give the press and the public the right to access to trials themselves, civil as well as criminal.'' Id. at 599 (Stewart, J., concurring). Also, in concurrence, Justice Blackmun stated: ``I am driven to conclude . . . that the First Amendment must provide some measure of protection for public access to the trial.'' Id. at 604 (Blackmun, J., concurring).
167. The Chief Justice traced the history of the trial back to the Norman conquest. Id. at 564-73. For an interesting discussion of the question left open by Richmond Newspapers, see generally Comment, After Richmond Newspapers: A Public Right to Attend Civil Trials?, 4 COMMENT 241 (1982).
168. 448 U.S. at 577. See generally Note, The Richmond Newspapers Case: Creation of a First Amendment Right of Access, 14 U.C. DAVIS L. REV. 1081 (1981-1982).
169. 457 U.S. 596 (1982).
170. Id. at 606. Justice Brennan, writing for a five-justice majority, declared unconstitutional a Massachusetts statute which closed trials during the testimony of minor victims of specific sex offenses. Id.
171. Id. at 605-06.
172. Id. at 606-07. Justice O'Connor concurred only in the judgment of the court, noting that she did not interpret Globe Newspapers or Richmond Newspapers to be applicable outside the context of criminal trials. Id. at 611 (O'Connor, J., concurring in the judgment).
173. 464 U.S. 501 (1984).
174. Id. at 513. Justice Marshall concurred in the judgment of the court only and filed a separate opinion in which he argued that greater government interest must be shown before the presumption of openness can be overcome. Id. (Marshall, J., concurring in the judgment).
175. Id. at 512. The court held that the presumption of openness could only be overcome ``by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'' Id. at 514. The court found the trial court's closure order unconstitutional, noting that the lower court had not made any specific findings or considered alternatives to closure. Id.
176. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
177. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980); Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 606 (1982); Press Enterprise, 464 U.S. at 512.
178. Richmond Newspapers, 448 U.S. at 577; Globe Newspapers, 457 U.S. at 606; Press Enterprise, 464 U.S. at 512.
179. Richmond Newspapers, 448 U.S. at 577; Globe Newspapers, 457 U.S. at 606; Press Enterprise, 464 U.S. at 512.
180. Pell v. Procunier, 417 U.S. 817, 830 (1974). The district court noted that prison officials linked a liberal press access policy to an escape attempt in which three staff members and two inmates were killed. Id. at 832.
181. See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (stating that prison administrators ``should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security''). See also Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128 (1977) (discussing the judicial deference afforded when reviewing prison administrative decisions).
182. 417 U.S. 817 (1974).
183. 417 U.S. 843 (1974).
184. Pell, 417 U.S. at 834. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (stating that government-controlled information is information not otherwise available to the public generally). In Nixon, the Court held that the press had no right of physical access to the Watergate tapes because the public did not have a right of access to such evidence. Id. at 783.
185. The facts involved in both cases were virtually identical and Justice Stewart authored both majority opinions. Compare Pell, 417 U.S. at 821-23 with Saxbe, 417 U.S. at 846-48.
186. Pell, 417 U.S. at 831-32. Prison officials initiated the interview prohibition following prison violence that they claimed was linked, in part, to media attention concentrated on a few chosen inmates. These prisoners acquired notoriety and influence over other inmates. Id.
187. In Pell, section 415.071 of the California Department of Corrections Manual provided: ``[P]ress and other media interviews with specific individual inmates will not be permitted.'' Pell, 417 U.S. at 819. In Saxbe, the relevant Federal Bureau of Prisons Policy Statement provided: ``Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public if it is limited to the discussion of an institutional facilities programs and activities.'' Saxbe, 417 U.S. at 844.
188. Pell, 417 U.S. at 835; Saxbe, 417 U.S. at 850.
189. See supra notes 150-156 and accompanying text (discussing application of the balancing test).
190. Saxbe, 417 U.S. at 849. This analysis implies that the government could constitutionally restrict the free flow of information guaranteed by the First Amendment by simply denying access equally to both the press and the public. Such a drastic result could not have been intended by the majority. See supra and infra notes 183-193 and accompanying text (discussing the reasoning of the Saxbe decision).
191. Pell, 417 U.S. at 834.
192. Id. at 830. The Court seemed anxious to stress the fact that other means of acquiring information about prison conditions were readily available to the media. Prison policy restricted only face-to-face interviews. The Court observed:

We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. Id. In Saxbe, the Court expressed similar reliance: ``Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to federal prisons in order to observe and report the conditions they find there.'' Saxbe, 417 U.S. at 847. The court also noted that press representatives could arrange to tour the prison and photograph any prison facility. Id. Additionally, inmates could correspond with members of the press. Id.
193. Saxbe, 417 U.S. at 847-49.
194. 438 U.S. 1 (1978) (plurality opinion of Burger, C.J.).
195. Id. at 6. The Chief Justice attempted to show that there were other means available to obtain information about the prison, such as correspondence. Id. The dissent correctly demonstrated, however, that correspondence and telephone privileges did not offer the public or the press opportunity to observe conditions. Id. at 26 n.14. (Stevens, J., dissenting).
196. See supra notes 39-57 and accompanying text (discussing the media blackout in Grenada).
197. See supra notes 77-99 and accompanying text (discussing the media blackout in the Persian Gulf).
198. Houchins, 438 U.S. at 29 (Stevens, J., dissenting).
199. Id. at 37. The Santa Rita jail is located in Alameda County, California. A substantial number of its inmates were pretrial detainees. Id. (Stevens, J., dissenting).
200. See Brenneman v. Madigan, 343 F. Supp. 128, 133 (N.D.Cal. 1972) (holding that conditions at the Greystone building were deplorable). ``The shocking and debasing conditions which prevailed there constituted cruel and unusual punishment for man or beast as a matter of law.'' Id.
201. KQED, Inc. v. Houchins, 18 Crim. L. Rep. (BNA) 2252, 2253 (N.D.Cal. 1975), aff'd, 546 F.2d 284 (9th Cir. 1977) . For a good review of the Ninth Circuit decision, see generally Note, Ninth Circuit Holds Press Entitled to Greater Access to Prison Than Public, 45 FORDHAM L. REV. 1524 (1977).
202. Houchins, 438 U.S. at 16. Justice Blackmun was ill at the time and did not participate in the decision. Justice Marshall also did not participate, presumably because he was once general counsel for the National Association for the Advancement of Colored People, which was a party to the action.
203. Id. at 8 (plurality opinion of Burger C.J.).
204. Id. at 9. Also, in addition, the plurality found no basis for a constitutional duty to disclose and did not set standards governing disclosure of information. Id. at 14.
205. Id. at 16 (Stewart, J., concurring). Justice Stewart disagreed with the plurality on the meaning of ``equal access.'' He argued: ``That the First Amendment speaks separately of freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society. The Constitution requires sensitivity to that role and to the special needs of the press in performing it effectively.'' Id. at 17. For an interesting discussion of the distinctions between the press and speech clauses, see generally Note, The Right of the Press to Gather Information, 71 COLUM. L. REV. 838 (1971).
206. Houchins, 438 U.S. at 18. Justice Stewart would have upheld the district court order requiring press access to the jail on a more frequent basis and allowing the press to bring cameras and other recording equipment. Id.
207. Id. at 18. The district court order required press access to the Greystone building and allowed random interviews with inmates. Thus, the order permitting press access to areas and sources not granted to the public. Id.
208. Id. at 30 (Stevens, J., dissenting).
209. Id. at 32. The dissent did, however, recognize that some functions of the government necessarily require secrecy, such as grand jury proceedings, the court's own conferences, and executive sessions. Id. at 35. The dissent concluded that there is no legitimate penological justification for concealing the condition of prisoners. Id. at 36.
210. Pell v. Procunier, 417 U.S. 817, 835 (1974).
211. Id.
212. Houchins, 438 U.S. at 30 (Stevens, J., dissenting) (public and press consistently denied access to areas where inmates confined and mail censored).
213. See Publicker Indus. v. Cohen, 733 F.2d 1059, 1066-71 (3d Cir. 1984) (applying three-part test to allow access to civil trial); Cassel, supra note 6, at 958 (Globe and Richmond suggest a three part test); Note, The First Amendment Right of Access to Civil Trials After Globe Newspapers Co. v. Superior Court, 51 U. CHI. L. REV. 286, 290 (1984) (applying Globe as a model for determining access rights to governmental proceedings).
214. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 605 (1982). In at least one context, the need to show a history of openness has been called into question by a lower court. See United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983). In Chagra, the Fifth Circuit Court of Appeals stated: ``Because the First Amendment must be interpreted in the context of current values and conditions [citations omitted], the lack of an historic tradition of open bail reduction hearings does not bar our recognizing a right of access to such hearings.'' Id. at 363.
215. Globe Newspapers, 457 U.S. at 606.
216. Id.
217. It must be conceded that the press cannot show an unbroken history of access to military operations, but neither could the press show an unbroken history of access to the criminal trial. Courtrooms had been closed for a variety of reasons prior to Richmond Newspapers. See, e.g., United States v. Bell, 464 F.2d 667, 670-71 (2d Cir. 1972) (public properly excluded from criminal trial in order to maintain confidentiality of ``hijacker profile''), cert. denied, 409 U.S. 991 (1972); United States ex rel Lloyd v. Vincent, 520 F.2d 1272, 1273-74 (2d Cir. 1975) (courtroom cleared to maintain secrecy of government undercover agents), cert. denied, 423 U.S. 937 (1975); United States ex rel Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977) (trial court excluded public but not press during the testimony of rape victim), cert. denied, 434 U.S. 1076 (1978).
218. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392 (1969).
219. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975).
220. Saxbe v. Washington Post Co., 417 U.S. 843 (1974). The press acts as public agent when gathering information. Id. at 863.
221. See Cox Broadcasting Corp., 420 U.S. at 491 (the public necessarily relies on the press to provide information).
222. For instance, the White House, closed to the general public, is accessible to a corp of journalists and photographers. The press is routinely allowed access to Pentagon briefings and news conferences to which the public is not invited. When the military unveils a new weapon, the press, not the public, is generally asked to observe the demonstration.
223. Lewis, A Public Right to Know About Public Institutions: The First Amendment as Sword, 1980 SUP. CT. REV. 1, 23. Anthony Lewis argues that this second factor should be phrased in terms of accountability: ``The question in each case should be whether the closing of a governmental institution to the public, the denial of access prevents accountability.'' Id. If closure denies the public any effective way to scrutinize the institution, Lewis would urge access. Id. at 24.
224. The military's budget last year amounted to more than $286 billion. 1991 ALMANAC, St. Martin Press, at 102.
225. Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 606 (1982). ``Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process . . . . ''. Id. See Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (plurality opinion) (Brennan, J., concurring in judgment) (stating that publicizing a trial aids accurate fact finding).
226. Cassel, supra note 6, at 961. While Cassel acknowledges this argument with respect to the judicial process, he contends that similar concerns do not arise in the military context. Cassel grudgingly admits that the public should know how the troops are faring, but denies that the press facilitates that function. Instead, the author would relegate that function to congressional hearings. Id. It is hard to imagine a more important and accepted function of the press in wartime. It is unclear how a congressional hearing could accomplish that function.
227. See Globe Newspapers, 457 U.S. at 607 (attempt to deny access to inhibit disclosure of sensitive information must be necessitated by a compelling interest and narrowly tailored).
228.Gannett Co. v. De Pasquale, 443 U.S. 368, 400-01 (1979). Justice Powell suggested the following test:
1. Whether alternative means are available so that fairness may be preserved.
2. Any exclusion order may go no further than necessary to achieve that goal.
3. The public and the press must be given an opportunity to be heard. Id. (Powell, J., concurring). Justice Blackmun suggested stricter standards:
1. Irreparable damage to defendant's right of fair trial will result.
2. Alternatives will not adequately protect that right.
3. Closure will be effective in protecting against the perceived harm. Id. at 440-42 (Blackmun, J., concurring). The lower federal courts and state courts are divided, with neither test commanding a clear majority. See, e.g. United States v. Chagra, 701 F.2d 354, 364-65 (5th Cir. 1983) (combination of tests adopted); United States v. Brooklier, 684 F.2d 1159, 1162 (9th Cir. 1982) (Blackmun test with two procedural prerequisites adopted); United States v. Powers, 622 F.2d 317, 323 (8th Cir. 1980) (Blackmun test adopted), cert. denied, 449 U.S. 837 (1980).
229. 701 F.2d 354, 365 (5th Cir. 1983). The court formulated the test as follows:

We hold that a defendant seeking closure of a pretrial bond reduction hearing overcomes the First Amendment right of access to that hearing if he shows that:
(1) his right to a fair trial will likely be prejudiced by conducting the hearing publicly;
(2) alternatives to closure cannot adequately protect his fair trial right; and
(3) closure will probably be effective in protecting against the perceived danger. Id.
230. Invasion Troops Trained to Make Surprise Raids, N.Y. Times, Oct. 26, 1983, at A16, col. 5.
231. After the invasion, military officials and others argued that the Grenada raid was a lightning-quick commando-style rescue mission. Compare Curbs on Grenada News Reporter Hit, L.A. Times, Nov. 3, 1983, § I, at 9, col. 1 (California Rep. Carlos Moorhead (R. Glendale) described Grenada invasion as ``a rescue mission using commando-tactics'' much like the Iran hostage rescue attempt) with ABC News Program Viewpoint, 1984: Secrecy, Security And The Media 6 (Jan. 19, 1984) (Statement of Jack Nelson, Los Angeles Times Washington Bureau Chief) (``I don't think anybody accepts that it was strictly a commando-style operation. It was an invasion of almost traditional kind of planning.'') and id. at 5 (statement of Michael Burch, Ass't Sec'y of Defense for Public Affairs) (``It was not a set battle plan such as journalists are used to covering with our forces. It was basically a commando-style operation where the first forces were to get the students that were to be rescued, secure them and, basically, wait for rescue themselves.'').
232. Flynt v. Weinberger, 588 F. Supp. 57, 58 (D.D.C. 1984) (declaration of Ass't Sec'y of Defense Michael Burch). Burch said there was no way to inform the press in advance with the assurance that the information and the operation would not be compromised. Declaration of Michael Burch at 12.
233. The sheer size of the invasion force undercuts the Pentagon's claim that this was a commando-style rescue raid similar to the American hostage rescue attempt in Iran. More than 1900 soldiers were involved in the invasion of Grenada, whereas only 180 soldiers were involved in Iran. B. Ryan, The Iranian Rescue Mission: Why it Failed, 1985 U.S. NAVAL INSTITUTE, at 1.
234. See U. S. Bars Coverage of Grenada Action: News Groups Protest, N.Y. Times, Oct. 27, 1983, at A1, col. 6 (commenting that Department of Defense photographers accompanied invasion force).
235. Flynt v. Weinberger, 588 F. Supp. 57, 58 (D. D.C. 1984); Declaration of Michael Burch at 13. The military did not want media aircraft using the runway and no military aircraft were available to transport reporters. Id. See Reporting the News in a Communique War, N.Y. Times, Oct. 26, 1983, at A1, col. 3 (officials claimed media presence would complicate logistical problems).
236. The Supreme Court has exhibited a willingness to undertake full review of military affairs. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 679-82 (1973) (review of statutes requiring women but not men to prove spousal dependency to receive benefits); Brown v. Glines, 444 U.S. 348, 349 (1980) (First Amendment challenge of regulation prohibiting solicitation of signatures without official approval); Greer v. Spock, 424 U.S. 828, 830-34 (1976) (review of base commander's decision to exclude political speakers from base). However, the court has recognized the need to allow the military flexibility in the operation of the armed forces. See, e.g., Chappell v. Wallace, 462 U.S. 296, 304 (1983) (judges should not run the military); Rostker v. Goldberg, 453 U.S. 57, 66 (1981) (need for "healthy deference to legislative and executive judgments in the area of military affairs"); Orloff v. Willoughby, 345 U.S. 83, 92 (1953) ("a large area of discretion as to particular duties must be left to commanding officers").
237. For instance, the Pell court considered the amount of deference it should pay to prison administration decisions in light of alternate channels of communications available to prisoners. Pell v. Procunier, 417 U.S. 817, 827-28 (1974).
238. U.S. Bars Coverage of Grenada Action; News Groups Protest, N.Y. Times, Oct. 27, 1984, at A23, col. 6. "Confusing and fragmentary information was offered and [White House Press Secretary Larry] Speaks, complaining about the accuracy of some news reports, ultimately refused to take additional questions from one reporter he considered annoying. `I'm tired of dealing with you,' he said. `You're carrying your management's water on this thing,' he said to another reporter, who had asked why reporters could not go to the island." Id. See U.S. Admits Air attack on Hospital in Grenada, L.A. Times, Nov. 1, 1983, § I, at 1, col. 2 (confirmation of attack of civilian hospital came only after reports surfaced in the press).
239. In some few situations, however, such as lightning-quick, small-scale rescue raids, there may be no less restrictive alternatives to total exclusion. Even the most ardent access proponents concede that some military operations are not conducive to press participation or necessarily must remain secret even from trusted war correspondents. See Landau, Excluding the Press from the Grenada Invasion: A Violation of the Public's Constitutional Rights, Editor and Publisher, Dec. 10, 1983, at 10 (quick, in-and-out rescue missions, such as the Iranian hostage rescue attempt, cannot be constitutionally accessible to the press).
240. See supra notes 62-70 and accompanying text (discussing the restrictions placed upon the press pool in Panama).
241. See supra note 75 and accompanying text (discussing the effectiveness of the press pool in Panama).
242. Jones, Editors Say Journalists Were Kept From Action, N.Y. Times, Dec. 22, 1989, at A19, col. 3.
243. Gordon, Cheney Blamed for Press Problems in Panama, N.Y. Times, Mar. 20, 1990, at A8, col. 4 (quoting a report by Fred S. Hoffman).
244. Balzar, supra note 87, at A23, col. 1. Pool reporters had "mostly open access to the fighting and support troops." Id. There were some complaints, however, that the pool had limited access to ground forces. See Old Suspicions, supra note 89, at A9, col. 4.
245. See supra notes 27-34 and accompanying text (discussing the security review system employed during the Korean War).
246. See Rosenstiel, supra note 94, at A20, col. 2.
247. Id.