The opinion
Hughes, C. J.,
concurring. I join in the comprehensive opinion of Justice Mountain and would briefly refer to factors which seem to me particularly reassuring in justification of that opinion. As pointed out, Judge Arnold in his threshold rulings was quite familiar with testimony introduced in a very long trial. As mentioned by Justice Mountain, this record included testimonial reference to the activities of Myron Earber and to the statements of material trial witnesses, which Earber possesses as agent of the respondent The New York Times. These statements, as shown by the trial record, are demonstrably inaccessible to the criminal trial defendant and should obviously be subject to comparison with the present trial testimony of various witnesses who have made such statements.
It would of course have been better practice for the trial judge to have documented references to that testimonial record to demonstrate, at the threshold: (1) probable rele-l *282 vánCe and materiality, (2) absence of opportunity for less intrusive access to the material demanded, (3) the status of any Shield Law protection and ,(4‘) the substantial reality of a consequent Sixth Amendment right to the evidence on the part of the defendant. The failure to have done so, however, should not be conclusive in the face of respondents’ intransigence. Considering that today we have found the threshold requirements to be evident in the record, as doubtless did Judge Arnold as the basis for his rulings, it is clear that respondents have denied to the court in camera access to the only factual base upon which any court c&uld have proceeded from that point to hear proofs and argument and then intelligently and finally determine those issues.
In this context, then, respondents have not truly been denied a hearing ;— they have intentionally withheld from the court the only foundation (that is to say, in camera consideration such as occurs in equally important Pifth Amendment cases) upon which any sensible final hearing and determination could have been based. In that respect they have aborted, alike, any possible fuller hearing and any possible substantive determination based on such a hearing.
Considered in this way, respondents have in fact had all the hearing to which they are presently entitled — that is to say a full consideration of their claimed Shield Law privilege to the extent that such asserted right may be adjudicated in vacuo. Their claim to a final adjudication without an in camera scrutiny by the court upon which to base its decision would project the absurd proposition that the press, and not the courts, should be the final arbiter of the constitutional mandate.
Such a conclusion would be discordant with the entire history of constitutional adjudication since the foundation of the Republic. It would be destructive of values upon which our constitutional democracy rests, that is to say, on the premise that the Constitution is supreme over the transitory will of any man, or of any group of men, or of the Congress itself, or even of a President, or of the press, or of *283 any special interest, no-matter how "worthy.' In the' perspective of history, given the need for freedom of the press and religion, of free speech and assemblage and other rights of free people, all such rights are' diminished if men may be condemned without the right to fair trial and without compulsory process to effectuate that right. Eor in the end, this was the constitutional purpose ■ — • that all men might be equal before the law — and thus free to seek without restraint those common goals identified by our ancestors — life, liberty and the pursuit of happiness. All these aré affronted and endangered intolerably, if fair trial is denied to anyone.