Capital City Press, Bill Pack, and the Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV appeal from the district court's February 22, 1996 denial of their motion to vacate the court's February 6, 1996 confidentiality order, from the district court's March 1, 1996 amended confidentiality order, and from the district court's March 8, 1996 order for private sessions. We must decide whether the district court's orders violate news agencies' rights protected by the First Amendment.

Prior to 1954, the East Baton Rouge Parish school system was racially segregated as a matter of law. This school desegregation case was filed in 1956 following the decisions in Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) and Brown v. Board of Educ., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). For the past forty years, the district court has maintained continuing jurisdiction over this case under Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), to ensure that the East Baton Rouge Parish School Board (the "Board") fulfills its duty to eliminate all vestiges of segregation from its school system. The history of this case is set out in greater detail in past decisions of this court, including Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425 (5th Cir.1983).

In late January or early February 1996, the newly elected Board, through its newly retained counsel, indicated to the district court that it was interested in formulating a proposed desegregation plan to finally end this litigation. The Board members indicated to the district court that they wished privately to discuss among themselves, their attorneys and some members of their staff, all aspects of a possible desegregation plan, as well as privately to plan the Board's strategy for negotiating the proposed plan with the adverse parties to the litigation.

At the Board's request, on February 6, 1996, the district court entered an order prohibiting the members of the Board, its attorneys, employees, and other agents from discussing "any aspects of any drafts of desegregation plans" with anyone other than the parties to the litigation (the "February 6th order").1 The Board did not make a formal motion requesting this order, nor did the district court enter findings or written or oral reasons supporting the order. On February 14, 1996, the Capital City Press, Bill Pack, and the Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV (collectively, the "news agencies") filed a motion to intervene to challenge the February 6th order as a violation of their First Amendment rights, and a motion to vacate the February 6th order. The Capital City Press publishes The Advocate, the Baton Rouge daily newspaper. Bill Pack is a reporter for The Advocate who has successfully investigated the Board's actions regarding desegregation in the past. The Louisiana Television Broadcasting Corporation d/b/a WBRZ-TV broadcasts one of the local news programs in Baton Rouge.

On February 22, 1996, the district court held a hearing on the news agencies' motions, and entered an order granting the motion to intervene and denying the motion to vacate (the "February 22nd order"). At the hearing, the district court orally explained its reasons for entering the February 6th order and for denying the news agencies' motion to vacate the February 6th order. The court, citing the oath of silence taken by the participants in the Constitutional Convention, reasoned that "there are some things, some public matters, that are better discussed and argued about in private than they are in public." The district court noted that although past East Baton Rouge Parish School Boards had been unwilling to accept their responsibility to desegregate the schools, the present Board was finally ready and willing to formulate a desegregation plan. The court stated that it issued the February 6th order to give the Board an opportunity to hash out the relevant issues in private, without interference from the public or the news media, in order to facilitate and expedite the Board's formulation of a proposed desegregation plan.

On February 26, 1996, the district court entered written Supplemental Reasons for its February 6th and 22nd orders (the "February 26th order"). The February 26th order reiterated the history of unwillingness on the part of the Board, and its current readiness to work to desegregate the school system. The district court stated that in entering its February 6th order, it "merely afforded the School Board an opportunity to negotiate in private--a chance for discussion unimpeded by outside sources." The court emphasized that its order expressly authorizes the Board to disseminate its proposal to the public once it has been created. Additionally, the court rejected the news agencies' arguments that the February 6th order was procedurally defective because it was entered without a written motion, without supporting findings, or without affording the press or public notice and an opportunity to be heard. The court stated that "the [February 6th] order is necessary to afford the members of the School Board a realistic chance at arriving at a proposed desegregation plan." The court also justified the February 6th order as an exercise of its equitable powers to fashion orders in desegregation cases under Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). The court admitted that the order may have been "inartfully drawn," in that it applied to all of the more than 7,000 School Board employees, and accordingly, the court directed counsel for the Board to prepare and submit an amendment. The court concluded, however, that "[t]he necessity for the [February 6th] order clearly outweighs the 'amorphous "hope to hear" ' rights of the news media." Finally, the court asserted that "there are no practical alternatives that would effectively safeguard the Board's progress in bringing this matter to a conclusion after forty years."

After filing a notice of appeal, on February 29, 1996, the news agencies filed an Emergency Motion for Expedited Appeal of District Court's Order Refusing to Vacate Confidentiality Order, and, Alternatively, Emergency Petition for Writ of Mandamus, as well as their original appellants' brief. On March 1, 1996, the district court entered an order amending the February 6th order by limiting the scope of the order to the members of the Board, the Superintendent, the Board's attorneys, and twenty-three specifically named staff members and employees (the "March 1st order" or the "confidentiality order").2

On March 4, 1996, the news agencies filed an amended notice of appeal and an amended emergency motion for expedited appeal/petition for writ of mandamus, adding review of the March 1st order to their appeal. Also on March 4th, the Board filed a motion to dismiss the appeal, to which the news agencies responded. On March 7, 1996, the Board filed a memorandum in opposition to the motion to expedite the appeal. Later that day, we granted the news agencies' motion to expedite their appeal and we denied the Board's motion to dismiss.

On March 8, 1996, the district court entered a third order relating to the confidentiality of the Board's activities in formulating a desegregation plan (the "March 8th order"). The March 8th order directed the Board to conduct private meetings to compose a proposed desegregation plan and ordered the participants in the meetings to keep the meetings and any drafts of desegregation plans confidential.3 Having learned that the Board intended to meet secretly over the weekend of March 9 and 10, 1996, the news agencies immediately filed an emergency motion for a stay of the March 8th order pending this appeal. We granted the news agencies' motion and stayed the March 8th order.

On March 11, 1996, the news agencies filed a second amended notice of appeal, appealing from the March 8th order, as well as the March 1st order and the February 22nd order denying the news agencies' motion to vacate the February 6th order.

In addressing this interlocutory appeal by a non-party, we must first examine two preliminary issues: whether appellate jurisdiction exists and whether the news agencies have standing to challenge the district court's March 1st and March 8th orders.4 We will then address the merits of the appeal--whether the March 1st and March 8th orders violate the First Amendment.

The first question we must address is the appealability of the March 1st and the March 8th orders. Our jurisdiction is governed by 28 U.S.C. § 1291, which provides that "the courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts ..." 28 U.S.C. § 1291. In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), the Supreme Court expansively interpreted the final decision requirement of § 1291 by creating the collateral order doctrine. See 15A Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d, § 3911 (1992). The collateral order doctrine establishes that certain decisions of the district court are final in effect although they do not dispose of the litigation. See United States v. Chagra, 701 F.2d 354, 358 (5th Cir.1983). Appealable collateral orders include "those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action." Digital Equip. Corp. v. Desktop Direct, Inc., --- U.S. ----, ---- - ----, 114 S. Ct. 1992, 1995-96, 128 L. Ed. 2d 842 (1994); see Chaves v. M/V Medina Star, 47 F.3d 153, 155 (5th Cir.1995) (additionally requiring that the order concern "an important or serious and unsettled question" of law). We have previously held on several occasions that members of the news media, although not parties to litigation, can appeal court closure orders or confidentiality orders under the collateral order doctrine. Chagra, 701 F.2d at 359; United States v. Gurney, 558 F.2d 1202, 1207 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978).

The March 1st order and the March 8th order are appealable under the collateral order doctrine. Both decisions are conclusive and would be effectively unreviewable on appeal from final judgment. The subject of the orders--the confidentiality of the Board's formulation of a proposed desegregation plan--is completely separable from the merits of the litigation--the desegregation of the school system itself. Finally, the appeal, concerning the First Amendment rights of the news media to receive information about the formulation of the desegregation plan, raises important and unsettled questions of law.

Having determined that we have jurisdiction over the appeal from the March 1st and the March 8th orders, we must now consider whether the news agencies have standing to challenge these orders. To establish standing, the news agencies must show an injury in fact that is fairly traceable to the challenged act and that is likely to be redressed by the requested remedy. Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758-59, 70 L. Ed. 2d 700 (1982); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 556 (5th Cir.1996). Several courts have held that news agencies have standing to challenge confidentiality orders in an effort to obtain information or access to judicial proceedings, although they are neither parties to the litigation nor restrained directly by the orders. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir.1994); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.), cert. denied, 488 U.S. 946, 109 S. Ct. 377, 102 L. Ed. 2d 365 (1988); Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir.1986); Radio & Television News Ass'n v. United States Dist. Court, 781 F.2d 1443, 1445 (9th Cir.1986); Gurney, 558 F.2d at 1206; CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir.1975).

In this case the only element of standing that is disputable is whether the news agencies have alleged an injury in fact. The district court's March 1st order directs the Board, its attorneys, and several of its employees to refrain from making written or oral comments about any aspects of any drafts of the Board's proposed desegregation plan. The March 8th order directs the Board to meet in private confidential sessions to formulate a proposed desegregation plan, and further orders the Board and its attorneys and employees to keep confidential all of the private sessions and all preliminary versions of the proposed desegregation plan. The combined effect of these orders, as the district court recognized, is to severely impede the news agencies' ability to discover information about the Board's process in formulating a proposed desegregation plan.

The First Amendment provides at least some protection for the news agencies' efforts to gather the news. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656-57, 33 L. Ed. 2d 626 (1972); see Gurney, 558 F.2d at 1208; CBS, Inc., 522 F.2d at 238. In addition, the First Amendment protects the news agencies right to receive protected speech. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S. Ct. 1817, 1823, 48 L. Ed. 2d 346 (1976) ("[W]here a speaker exists ... the protection afforded is to the communication, to its source and to its recipients both ... [W]e acknowledg[e] that this Court has referred to a First Amendment right to 'receive information and ideas,' and that freedom of speech 'necessarily protects the right to receive.' "). The Board argues that the First Amendment right to receive speech only comes into existence once a willing speaker has been shown to exist, relying on Virginia State Bd. of Pharmacy, 425 U.S. at 756, 96 S.Ct. at 1823 ("Freedom of speech presupposes a willing speaker.") The news agencies respond that, even absent a willing speaker, they would have standing by virtue of their independent First Amendment right to gather the news. Indeed, many circuits have found media standing to challenge confidentiality orders without expressly finding the existence of a willing speaker. See, e.g., Dow Jones & Co., 842 F.2d at 607 ("It is hard, in fact, to imagine that there are no willing speakers. Without them there would be no need for a restraining order; it would be superfluous."); CBS, Inc., 522 F.2d at 238 (finding media standing without discussing a willing speaker requirement).

We need not and do not decide whether, in every case, the media must demonstrate the existence of a willing speaker to establish standing to challenge a court's confidentiality order, because, in the present case, we are satisfied that a willing speaker exists. At the district court's February 22nd hearing, the news agencies and the Board stipulated that, prior to the entry of a confidentiality order, the news agencies were able to discover information about desegregation of the school system--i.e., they stipulated that members and employees of the Board were willing speakers on this issue prior to the district court's original confidentiality order.5 See Dow Jones, 842 F.2d at 607 (discussing the existence of a willing speaker to show that the news agencies had standing to challenge a confidentiality order). The parties also stipulated that the Board's efforts in preparing a desegregation plan were newsworthy and of great public interest in the community. The district court's orders have severely impeded the news agencies' ability to discover newsworthy information from potential speakers.6

Thus, the news agencies have alleged an injury in fact that is fairly traceable to the district court's orders and likely to be redressed by the relief requested. The district court's orders impede the news agencies' abilities to gather the news and to receive protected speech, abilities which are arguably protected by the First Amendment. The relief requested--that we vacate the March 1st and March 8th orders--would redress this injury by allowing the news agencies to discover information about the Board's process in formulating a desegregation plan. We conclude that the news agencies have standing to challenge the district court's March 1st and March 8th confidentiality orders.

C. THE VALIDITY OF THE DISTRICT COURT'S ORDERS

Having determined that the news agencies have standing to challenge the district court's orders, we must now address whether the district court's March 1st and March 8th orders violate the First Amendment.

1. The March 1st Order: The First Amendment

The Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid. See CBS, Inc., 522 F.2d at 238; see, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556, 96 S. Ct. 2791, 2801, 49 L. Ed. 2d 683 (1976); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584 (1963). "An order that prohibits the utterance or publication of particular information or commentary imposes a 'prior restraint' on speech." United States v. Salameh, 992 F.2d 445, 446 (2d Cir.1993). A prior restraint is constitutional only if the government demonstrates that the protected speech restrained poses a "clear and present danger, or a serious or imminent threat to a protected competing interest." CBS, Inc., 522 F.2d at 238. Furthermore, "[t]he restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms." Id.

The district court's March 1st order prohibits the Board, its attorneys, and certain of its employees from making "any written or oral comments to any other person or entity in connection with any aspect of any drafts of desegregation plans concerning the East Baton Rouge Parish School System." This order clearly constitutes a prior restraint on the speech of the Board members, attorneys, and employees to which it applies. Whether we should analyze the confidentiality order as a prior restraint in determining the First Amendment rights of the news agencies--the potential recipients of the restrained speech--is unclear. See CBS, Inc., 522 F.2d at 239 (concluding that a confidentiality order restraining the speech of parties to litigation but challenged only by the media was a prior restraint); but see Dow Jones & Co., 842 F.2d at 608 (deciding that a restraining order applying to the litigants and challenged by the media was not a prior restraint).

We need not decide whether the confidentiality order constitutes a prior restraint on the news agencies because, even assuming that the order is not a prior restraint, its effect on the news agencies' First Amendment rights must still be justified. See Dow Jones & Co., 842 F.2d at 609 ("To conclude that this is not a case of prior restraint of the press is not to say that the restraining order need not be justified. On the contrary, it must be.").

The Supreme Court has recognized "a First Amendment right to 'receive information and ideas' ", and a right to receive speech protected by the First Amendment. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757, 96 S. Ct. 1817, 1823, 48 L. Ed. 2d 346 (1976). Additionally, we have noted that "the Supreme Court recognized in Branzburg v. Hayes, 408 U.S. 665, 681 [92 S. Ct. 2646, 2656-57, 33 L. Ed. 2d 626] (1972), that news-gathering is entitled to [F]irst [A]mendment protection, for 'without some protection for seeking out the news, freedom of the press could be eviscerated.' " In re Express-News Corp., 695 F.2d 807, 808 (5th Cir.1982). However, neither the First Amendment right to receive speech nor the First Amendment right to gather news is absolute. See id. at 809. For example, the news media have no right to discover information that is not available to the public generally. Id.

Confidentiality orders, and denials of access to court proceedings as well, have been allowed when a strong governmental interest or a competing individual right outweighs the First Amendment rights asserted. See Gurney, 558 F.2d at 1209. For example, confidentiality orders have been held constitutional in criminal jury trials when necessary to protect a defendant's Sixth Amendment right to a fair trial by an impartial jury. See, e.g., Dow Jones & Co., 842 F.2d at 609 ("When the exercise of free press rights actually tramples upon Sixth Amendment rights, the former must nonetheless yield to the latter.").

In the context of a district court order preventing the press from conducting post-trial juror interviews, we have held that "an inhibition of press news-gathering rights must be necessitated 'by a compelling governmental interest, and ... narrowly tailored to serve that interest.' " In re Express-News, 695 F.2d at 808-09 (quoting Globe Newspaper v. Superior Court, 457 U.S. 596, 607, 102 S. Ct. 2613, 2620, 73 L. Ed. 2d 248 (1982)). In Dow Jones & Co., the Second Circuit stated that to justify a confidentiality order restraining participants in a criminal jury trial from speaking with the press, a "reasonable likelihood" that pretrial publicity would prejudice the criminal defendant's Sixth Amendment right to a fair trial by an impartial jury must be demonstrated. 842 F.2d at 610. Furthermore, the Second Circuit stated that the district court must consider whether alternative remedies less intrusive of First Amendment rights would serve to protected the criminal defendant's competing Sixth Amendment rights. See id. at 611. We need not decide whether to employ the strict scrutiny standard of In re Express-News, or some variant of the reasonable likelihood standard of Dow Jones & Co., because the district court's March 1st order would not satisfy either standard.

The March 1st order is not justified, on this record, by any important governmental interest or countervailing individual right.7 First, we emphasize that this is not a criminal trial, nor even a civil jury trial. There is no possibility that publicity will prejudice potential jurors. The Board argues that the confidentiality order is necessary because the Fourteenth Amendment rights of the East Baton Rouge Parish school children to attend schools free of racial inequality outweighs any First Amendment rights of the news agencies. Indeed, the students' constitutional right to desegregated schools is compelling; however, the confidentiality order does not necessarily further their interests. The removal of the confidentiality order would in no way prevent the Board from desegregating the school system.8

The purpose of the confidentiality order, as explained by the district court in relation to the February 6th order, is to allow the Board members privately--without interference from the public or the media--to discuss and formulate a proposed desegregation plan. Whatever the validity of this rationale for conducting private meetings may be, it does not, on this record, justify the sweep of the March 1st order prohibiting Board members and employees from making any written or oral comments to any other person or entity in connection with any aspect of any drafts of any desegregation plan.

The Board argues that the damage to the news agencies' First Amendment rights is mitigated because the Board plans to disseminate the final draft of the proposed desegregation plan to the public and the press. The short answer to this argument is that the parties have stipulated that the process itself is newsworthy.

We hold that the district court's March 1st order is unconstitutional because, on this record, it intrudes severely upon the news agencies' First Amendment right to gather the news and receive speech and it is not justified by protection of any countervailing governmental interest or individual right. Accordingly, we vacate the March 1st order.

The March 8th order, in addition to requiring the Board to meet in private sessions, requires that "all of the above private sessions and all preliminary version(s) of the draft [of the desegregation plan] remain confidential and private."9 This confidentiality requirement suffers from the same constitutional infirmity as the March 1st order: the confidentiality requirement violates the news agencies' First Amendment rights to gather news about the formulation of a desegregation plan. As no compelling governmental interest supports this confidentiality requirement, it must also be vacated.

The news agencies also contest the validity of the main portion of the March 8th order directing the Board to meet in private sessions to formulate a desegregation plan and negotiate the plan with the adverse parties to the litigation.10 The news agencies challenge the private sessions requirement under the First Amendment and also contend that this requirement of the March 8th order allows the Board to circumvent the requirements of the Louisiana Open Meetings Law, La.Rev.Stat.Ann. ("L.R.S.") § 42:4.1-11 (West 1990).11 Because we are able to dispose of the news agencies' challenge to the private sessions requirement of the March 8th order on nonconstitutional grounds, we do not reach their First Amendment argument.

Turning to the Louisiana Open Meetings Law, the Board defends the order by arguing that an exception to that law would allow it to conduct the private sessions contemplated by the March 8th order.12 The news agencies respond that, even if the private sessions would comply with the Louisiana Open Meetings Law, the court's order requiring such private sessions allows the Board to avoid taking the many procedural steps required by the Open Meetings Law before it meets in a closed session.13

We express no opinion on whether the private sessions contemplated by the March 8th order would comply with the Louisiana Open Meetings Law. We note that, at least on the surface of it, the district court entered the March 8th order without even considering the Louisiana Open Meetings Law. In entering a confidentiality order protecting a public entity, or an order such as this requiring a public entity to meet in secrecy, the district court should consider the effect of the order on state freedom of information laws. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 791 (3d Cir.1994) ("where a governmental entity is a party to litigation, no protective, sealing or other confidentiality order shall be entered without consideration of its effect on disclosure of government records to the public under state and federal freedom of information laws" (citations and alterations omitted)).

The district court made no findings concerning whether the meetings contemplated by the March 8th order fit within any of the exceptions to the Louisiana Open Meetings Law. L.R.S. § 42:6.1(A)(2); see Pansy, 23 F.3d at 786. The court made no effort to explain why the need for confidential Board meetings outweighed the news agencies' interest in attending Board meetings protected by the Louisiana Open Meetings Law. See id. Furthermore, the Board, although aware of its duty as a public entity to comply with the Louisiana Open Meetings Law, did not request that the district court determine whether the exceptions to the open meeting requirement covered the private sessions contemplated by the March 8th order.

The district court gave no notice to the news agencies of its intent to enter the March 8th order, although it must have known that the news agencies would oppose the order, as they had already intervened to contest the court's earlier confidentiality orders. The March 8th order requiring private sessions in effect immunizes the Board from enforcement of the Louisiana Open Meetings Law, as it removes the decision of whether to hold closed meetings from the Board. However, despite this effect, the district court also gave no notice of the March 8th order to the district attorney, who is required by law to enforce the provisions of the Open Meetings Law. L.R.S. § 42:10. We need not, and do not, hold that notice to the press or the district attorney is always required before entry of an order implicating state sunshine laws. At a minimum, such notice, under the circumstances that obtained here, would have been prudential. In any event, the absence of such notice in this case had the effect of eliminating any opposition to the secret meetings aspect of the March 8th order. Because there was no opposition to the entry of the order, the district court took the wholly unacceptable step of entering the order without making any findings.

In short, the district court entered a sweeping order requiring a public entity to conduct confidential meetings which may or may not comply with state law. The court should not have entered this order without considering whether the meetings that it ordered complied with the Louisiana Open Meetings Law, or demonstrating compelling reasons for preempting Louisiana law. We conclude that the district court abused its discretion in entering the March 8th order without considering its effect on Louisiana law. See Pansy, 23 F.3d at 783 ("We review the grant or modification of a confidentiality order for abuse of discretion."). Accordingly, we vacate the March 8th order.

For the foregoing reasons, we VACATE the district court's March 1st and March 8th orders. In light of our disposition of this appeal, the news agencies' alternative petition for a writ of mandamus is DENIED. Costs shall be borne by the Board. The mandate shall issue forthwith.