Nebraska Press Assn. v. Stuart
427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)
Rule of Law:
A prior restraint on media coverage of a criminal proceeding is presumptively unconstitutional. This heavy presumption is not overcome by a showing that pretrial publicity could impinge on a defendant's Sixth Amendment right to a fair trial, unless the court finds that less restrictive alternatives would be inadequate to mitigate the publicity's effects.
Facts:
- On October 18, 1975, six members of the Kellie family were murdered in their home in the small town of Sutherland, Nebraska.
- Police identified Erwin Charles Simants as a suspect, and he was arrested the following morning.
- The crime attracted intense and widespread media coverage from local, regional, and national news outlets.
- During an open-court arraignment, information was introduced regarding a confession Simants had made to law enforcement officers.
- Simants had also allegedly made incriminating statements to other private individuals and had written a note on the night of the crime.
Procedural Posture:
- The County Attorney and defense counsel jointly moved the Lincoln County Court for an order restraining media coverage of the case.
- The County Court granted the motion, restricting the release of testimony and evidence from the preliminary hearing.
- Following the preliminary hearing, the case was bound over to the State District Court for trial.
- The Nebraska Press Association and other media organizations (petitioners) intervened in the District Court to vacate the restrictive order.
- The District Court entered its own, more specific, gag order, prohibiting the reporting of confessions and other prejudicial information.
- Petitioners sought a writ of mandamus from the Nebraska Supreme Court to vacate the District Court's order.
- The Nebraska Supreme Court modified the order but upheld a prohibition on reporting confessions and other information 'strongly implicative' of the accused.
- The petitioners sought and were granted a writ of certiorari by the Supreme Court of the United States.
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Issue:
Does a state court's order restraining the press from publishing or broadcasting confessions and other information 'strongly implicative' of an accused in a widely publicized criminal case violate the First Amendment's guarantee of freedom of the press?
Opinions:
Majority - Chief Justice Burger
Yes. A state court's order restraining the press from publishing or broadcasting information about a criminal proceeding constitutes a prior restraint that violates the First Amendment. The Court reasoned that prior restraints are the 'most serious and the least tolerable infringement on First Amendment rights' and carry a 'heavy presumption' of unconstitutionality. To justify such a restraint, a trial court must make specific findings demonstrating that (1) pretrial publicity will be intense and pervasive, (2) no alternative measures would be adequate to mitigate the effects of the publicity, and (3) a restraining order would be effective in preventing the threatened danger. Here, the Nebraska courts failed to consider the efficacy of alternatives like a change of venue, postponement of the trial, rigorous voir dire, or jury sequestration. Furthermore, the order was unconstitutional because it barred the reporting of events that transpired in open court and included a prohibition on 'implicative' information that was impermissibly vague.
Concurring - Justice Brennan
Yes. Justice Brennan, joined by Justices Stewart and Marshall, concurred in the judgment, arguing for a near-absolute bar against prior restraints in the free press/fair trial context. He contended that using prior restraints to protect a fair trial is a 'constitutionally impermissible method.' Instead, judges have a wide array of tools—such as change of venue, continuance, voir dire, jury sequestration, and gag orders on trial participants—that can secure a defendant's Sixth Amendment rights without infringing upon the First Amendment. The speculative nature of harm from pretrial publicity can never justify the 'direct, immediate, and irreparable' harm caused by censorship.
Concurring - Justice White
Yes. Justice White joined the Court's opinion but wrote separately to express 'grave doubt' as to whether a prior restraint on the press in a criminal case context could ever be justifiable. He suggested that if courts consistently strike down such orders, it may become necessary to 'announce a more general rule' to avoid the 'interminable litigation' that a case-by-case approach would entail.
Concurring - Justice Powell
Yes. Justice Powell joined the Court's opinion to emphasize the 'unique burden' that rests on any party seeking a prior restraint on pretrial publicity. He articulated a three-part test, stating that a restraint may only issue after a showing that (i) there is a clear threat to the fairness of the trial, (ii) the threat is posed by the specific publicity to be restrained, and (iii) no less restrictive alternatives are available to protect the defendant's rights.
Concurring - Justice Stevens
Yes. Justice Stevens concurred in the judgment, agreeing that the judiciary can protect a defendant's right to a fair trial without enjoining the press from publishing information already in the public domain. However, he wrote to express his desire to reserve judgment on cases involving information that was obtained illegally, was demonstrably false, or seriously intruded on privacy, suggesting that the protection might not be as absolute in those circumstances.
Analysis:
This landmark decision established an extremely high barrier against the use of judicial gag orders on the press to control pretrial publicity. The Court's three-part test effectively requires trial judges to exhaust all other procedural remedies before considering a prior restraint, making such orders a remedy of last and highly improbable resort. The ruling firmly rejects the idea that First and Sixth Amendment rights are in a zero-sum conflict, instead mandating an accommodation that heavily favors freedom of the press. It also solidified the bedrock principle that the press cannot be restrained from reporting on information that is revealed in open judicial proceedings.
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