¶1concurring
¶2T 1 I join the court's opinion and state my views in its support.
¶3T2 At issue here is whether the trial court (by sealing the polygraph test results) disrupted the free flow of information that did not pose a threat to the fair administration of judicial process. Because I would also answer this question in the affirmative, I concur in today's disposition.
¶4T8 Courts are powerless to impede the free flow of information-either to society at large or to the media-unless there be proof that immediately threatened is their ability to conduct and manage judicial process for fair and due application of the law.
¶514 The First Amendment's free-speech and free-press clauses are a command to all the three branches of government not to interfere with the free flow of information.
¶6T5 The burden is always cast on the party seeking the sealing of information to show that public access to its content would harm not just a party but the integrity, neutrality and detachment of the judicial service. That is the essence of the constitutional protection against sealing which is afforded by the First Amendment's free-speech-and-press guarantee.
¶7I 6 Were we today to accept all facts tendered below as true, there would still be no evidence before us to indicate clear and present danger exists to the neutrality or integrity of the judicial fact-finding process from the public access to the material ordered to be withheld by the trial court's sealing.
¶8T7 Was the trial court's sealing of a polygraph test result a correct legal response? I would answer this question, as the court does today, in the negative. This is so because the test results are facially inadmissible as evidence.
¶9T8 The question deals with the extent of judicial power to keep the air clean from contamination of public perception in advance of the trial. The defendants invoked judicial power in an effort to prevent perceived potential contamination from public reach by the use of sealing. Since we are dealing with material not fit for admission as evidence, the defendants pressed judicial power beyond its legal reach. Courts have neither the power nor the duty to sanitize community climate of potential contaminants which cannot reach the status of evidence at trial.
¶10T9 Pushing forward judicial sealing authority to include facially inadmissible evidence would extend the power of courts over the control of material that cannot and will not make its way inside a judicial forum. If *980the power sought to be exercised were available, the judiciary would be under a duty not only to keep the trial process clean of contaminants, but worse yet, it would be required to remove from the reach of the public all floating information whose dissemination must remain beyond its constitutional reach. We need not deal in this case with the general legal propriety of sealing because none of the sealed polygraph test results could ever be evidence in the case at hand and their removal from the eye and ear of the public must be regarded as clearly unwarranted.
¶11T10 While the release of polygraph test results might have some adverse impact on the outcome of pending criminal charges against the defendants, that alone does not justify the sealing in this case. To protect the defendants against a serious threat to the fairness of a criminal trial, Oklahoma law provides for a change of venue
¶1211 In sum, material that is incapable of being used as proof in the case must be regarded as present exterior to the court-controlled environment and hence beyond the court's pretrial power to suppress. Exterior contaminants, if indeed worthy of immediate notice because of their potential for influence ing jurors or for otherwise affecting their verdict, must be dealt with by means other than sealing. In the absence of proof that there is a clear and present danger from threatened institutional contamination of the contemplated judicial decision-making process, there was here no apparent need for court intervention. Moreover, none could ever be perceived when the basic facts are tested by the command of the free-speech and free-press clauses of the First Amendment to the U.S. Constitution. The trial judge's sealing order is correctly reversed as an impermissible judicial interference with a constitutionally protected public freedom of utmost societal importance.
¶13. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 570-72, 589, 100 S.Ct. 2814, 2823-25, 2834, 65 LEd.2d 973 (1980), the Court held the public had a First Amendment right to attend criminal trials,. Public access to criminal trials enhances the quality and safeguards the integrity of factfinding and functions as a check on the judicial and governmental process (Globe Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619, 73 LEd.2d 248 (1982) (access to criminal trial); Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 569, 570-72, 589, 100 S.Ct. at 2823-25; and assures an appearance of fairness, Press-Enterprise, Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 823, 824, 78 LEd.2d 629 (1986) (access to criminal pretrial proceeding).
¶14. "At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988); Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945) (the First Amendment commands thai "the government ... shall not impede the free flow of ideas"); New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964) (in discussing the First Amendment's free-speech-and-free-press guarantees, the Court reiterated a "... profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open...."); Globe Newspaper Co. v. Superior Court, supra note 2, 457 U.S. at 604, 102 S.Ct. at 2619 (the " 'major purpose of [the First] Amendment was to protect the free discussion of governmental affairs ....'") (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 LEd.2d 484 (1966)); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (the "First Amendment embraces a right of access to civil trials to ensure that this constitutionally protected discussion of governmental affairs is an informed one").
¶15. The First Amendment interdicts restraints on freedom of the press imposed by the courts. New York Times Co. v. United States, 403 U.S. *979713, 91 S.Ct. 2140, 29 LEd.2d 822 (1971); Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546 (1947); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). "The history of the power to punish for contempt ... and the unequivocal command of the First Amendment serve as constant reminders that freedom of speech and of the press should not be impaired through the exercise of that power, unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice." Craig v. Harney, supra.
¶16. Craig v. Harney, supra note 3.
¶17. 'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." F.C.C. v. Pacifica Foundation, 438 U.S. 726, 744-45, 98 S.Ct 3026, 57 LEd.2d 1073 (1978)(quoting Justice Holmes' formulation in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). "To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent." Whithey v. California, 274 U.S. 357, 376, 47 641, 648, 71 LEd. 1095 (1927)(Brandeis, J., concurring). The substantive evil against which the law may protect here is interference with the orderly administration of judicial process and impartial adjudication.
¶18. Polygraph test results are not admissible in criminal trials for any purpose. Paxton v. State, 1993 OK CR 59, 142, 867 P.2d 1309; State v. Cook, 1978 OK CR 15, 12, 574 P.2d 1073. In a slander lawsuit, the reference to a polygraph test was deemed harmless error. Hames v. Anderson, 1977 OK 191, 571 P.2d 831; but of. Conti v. Republic Underwriters Ins. Co., 1989 OK 128, 782 P.2d 1357.
¶19. But of. In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1338 (D.C.Cir.1985) (the admission of evidence is the touchstone of the First Amendment right of access because discovered, but not yet admitted, information was not traditionally open to the public); United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995); United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) (the mere filing of a document is insufficient to make it subject to the right of public access; the court must actually rely on that document in the course of performing its judicial functions).
The First Amendment right of access extends to documents submitted in connection with a judicial proceeding. (United States v. Peters, 754 F.2d 753, 763) (7th Cir.1985); In re Continental IlL. Sec. Litig., 732 F.2d 1302, 1308-10 (7th Cir. 1984); Publicker Industries, Inc. v. Cohen, supra note 2, 733 F.2d at 1070. The First Amendment right of access does not attach to all aspects of a criminal trial, including, for example, presen-tence reports, withdrawn plea agreements or affidavits supporting search warrants. See United States v. Corbitt, 879 F.2d 224, 228 (Ith Cir. 1989); United States v. El-Sayegh, 131 F.3d 158, 161 (D.C.Cir.1997); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir.1989).
¶20. 12 0.$.2001 § 140.