c38:No. 76-1757

CRAVEN, Circuit Judge,
concurring and dissenting:
I regret very much that we cannot decide the merits of this confrontation between fair trial and free press, but I agree with my brothers that because the facts have not been developed in the district court we could write, at most, an advisory opinion. I would not, however, dismiss the appeal, but would, instead, hold that there is appellate jurisdiction and remand to the district court for a trial on the merits with instructions that the district court then find facts as required by the Seventh Circuit in Chase v. Robson, 435 F.2d 1059 (1970).
I.
I respectfully dissent from my brothers’ decision to dismiss the appeal on the ground that “the Society should not participate in a case to which it is not a party.” Supra at p. 563.
The court has embraced uncritically the doctrine that non-parties lack standing to appeal, so that the Society, not being a party to the criminal action, cannot appeal from an interlocutory order therein, however damaging its effect upon their First Amendment interests. Professor Moore formulates the basic idea less categorically: “Ordinarily, only a person who was a party in the court below and who is aggrieved by the judgment or order can appeal therefrom.” 9 Moore’s Federal Practice ¶ 203.06, at 715 (1975) (emphasis added). His adverb admits of exceptions — and exceptions there both are and must be if we are not to lose sight of the very purpose behind this judge-made rule. See West v. Radio-Keith Orpheum Corp., 70 F.2d 621, 623 (2d Cir. 1939); United States v. Schiavo, 504 F.2d 1 (3d Cir. 1974); and Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158 (5th Cir. 1955).
The rule embodies the generally valid assumption that non-parties, as to whom final decisions are not res judicata, do not have a sufficient interest in the controversy to lodge an appeal. Ordinarily, they have nothing at stake, for the law has never recognized a philosophical concern as a legal interest. Bodkin v. United States, 266 F.2d 55 (2d Cir. 1959). See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As such, the party-only appeals rule merely reflects an early approach to the “case or controversy” requirement of Article III of the Constitution — and, more particularly, to that subclass of jurisdictional concerns commonly known as “standing” to litigate. See West v. Radio-Keith-Orpheum Corp., supra, 70 F.2d at 623, Wright, Miller & Cooper, Federal Practice & Procedure, § 3531 (1975). But where the assumption that only parties are interested is not true and a non-party is aggrieved, we are free to exercise our constitutional and statutory jurisdiction. This is especially so since on its face our jurisdictional statute, 28 U.S.C. § 1291, does not limit appeals to parties, but contemplates appeals from all final decisions.
As Learned Hand observed in West v. Radio-Keith-Orpheum Corp., supra, 70 F.2d at 624:
The reason for [the party-only appeals doctrine] is that if not a party, the putative appellant is not concluded by the decree, and is not therefore aggrieved by it. But if the decree affects his interests, he is often allowed to appeal.
(Emphasis added.) Accordingly, in a case like this one, the Third Circuit allowed the media to appeal from a “gag” order entered in a criminal case. United States v. Schiavo, supra.
The basic question of standing to litigate should be directly faced. It should not be avoided by resort to an inaccurate and outmoded presumption that non-parties cannot be harmed by what happens in someone else’s lawsuit. No court has seriously questioned the litigable interest of the media in contesting a “gag” order. For instance, in C.B.S., Inc. v. Young, 522 F.2d 234 (6th Cir. 1975), supra at p. 562 n.3, in which the gag order ran solely against the parties, the court found that the local media was clearly aggrieved thereby:
Although the news media are not directly enjoined from discussing the case, it is apparent that significant and meaningful sources of information concerning the case are effectively removed from them and their representatives. To that extent their protected right to obtain information concerning the trial is curtailed and impaired.
522 F.2d at 239. And despite my own fearful concern over the abuse of the “standing” requirement to avoid hard questions, I am confident here that not even a tortured application of that concept can plausibly deny the Society standing to litigate on appeal the validity of this “gag” order — or, which is the same thing, to have brought an original action in this regard. Compare Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943), with Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Indeed, by discussing the merits of the Society’s mandamus petition, the court itself has impliedly and rightly resolved the basic question in appellant’s favor.
II.
Accepting the court’s opinion on its own terms, there is no reason why we may not properly treat the Society’s motion for a stay in the district court as a complaint initiating an action against the district court’s promulgation of “gag” rules. Despite Rule 7(a), a complaint is a complaint whether or not the word complaint appears on the paper writing. Indeed, Rule 8 of the Federal Rules of Civil Procedure talks about “claims for relief” and specifically provides that pleadings shall be construed so as to do substantial justice. I do not believe that any federal court would today hold that a complaint may be dismissed purely because it is not denominated as such, and I do not think the majority opinion goes quite so far. But if it does not, I fail to see why my brothers are unwilling to treat the motion for a stay as a complaint purely for purposes of appellate jurisdiction. I am sensitive to the thought that the harassed and overburdened district judge probably did not think of the motion as a complaint, but remand, with an instruction to treat it as such, prejudices neither him nor anyone else and would save a lot of wasted motion, time, and money.
Aside from whether the paper writing was given its proper name below, there is authority for the proposition that some causes of action can be begun without any complaint. The Supreme Court has twice so held: Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275 (1929). See 2 Moore’s Federal Practice ¶ 3.04 (1975). I think this is such a case.
III.
Since it seems to me there is appellate jurisdiction on any of the above theories, I am not much concerned that my brothers conclude that mandamus does not lie. But both the Sixth and Seventh Circuits have concluded otherwise, as my Brother Widener recognizes. Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970); In re Oliver, 452 F.2d 111 (7th Cir. 1971); C.B.S., Inc. v. Young, 522 F.2d 234 (6th Cir. 1975).
IV.
This is one of those unfortunate procedural decisions that is of no help to anyone and really does not matter except in terms of delay. I think we can safely assume (unless their clients’ money is exhausted) that as soon as counsel learn of our dismissal they will simply take the motion for a stay previously filed in the district court, perhaps change it a little and denominate it a “complaint,” and file it and have it served on the judge. If the judge then denies a motion for a stay of his “gag” rules, counsel will then again ask this court for a Rule 8 stay order and will again appeal. And around we will go again. Today’s decision not to proceed is the kind of expensive non-decision point that provokes Professor Frank to wonder if the elephant has not become too large to stand on his pedestal, and causes him to recommend that:
All rules or statutes governing procedure should be carefully analyzed to ensure that their application will not take undue court time or add to the cost of litigation. The presumption in favor of economy and speed is rebuttable where fairness is at stake, but it is a strong presumption all the same.
J. Frank, American Law 69, 85, 90 (1969) (emphasis added.)
. Although my brothers disclaim deciding the merits, they nevertheless construe Nebraska Press Assoc, v. Stuart, supra, as approving the standards of Sheppard v. Maxwell, supra. Since they have done so, I am compelled to express my disagreement, but the time for an exposition of it is not yet, and, because of dismissal, will be a little longer coming.
. That conclusion, of course, applies here a fortiori since paragraph (3) of the court’s order, banning all photographing and sketching at trial, runs directly against the press; and, arguably, so does paragraph (4), banning news interviews by participants. See p. 56, supra.

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