In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Supreme Court unanimously ruled that a trial court judge did not have the authority to place gag orders on reporting about a specific crime prior to jury impanelment, finding it a form of prior restraint and in violation of the First Amendment right of freedom of the press.

The controversy arose after Edwin Simants was charged with murdering six people in their home in Sutherland, Nebraska, a town of about 850 people located in a very rural part of the state. Hugh Stuart, a Nebraska state trial judge, feared that publicity surrounding the crime would make it impossible to find an impartial jury, so he issued a gag order on news coverage until a jury was impaneled. The Nebraska Supreme Court modified the gag order but restrained newspapers and other media from publishing or broadcasting accounts of confessions or admissions made by the accused to law enforcement officers or third parties, except members of the press, or other facts “strongly implicative” of the accused. The Supreme Court granted certiorari to determine whether the order violated the First Amendment.

Writing for the majority, Chief Justice Warren E. Burger explained that although restraints on freedom of press are possible under some circumstances, any prior restraints must be presumed to violate the First Amendment. Even when trying to balance two such important rights as the freedom of press with the Sixth Amendment right to a fair trial, it should be presumed that reporting on criminal proceedings will take priority.

Burger reasoned that pretrial publicity, even when pervasive and adverse, does not inevitably lead to an unfair trial. After reviewing past cases that had been adversely affected by publicity, the Court believed that Judge Stuart had acted responsibly out of a legitimate concern for the effect that adverse publicity would have on the trial in an effort to protect the defendant’s right to a fair trial. Despite this concern, the Court emphasized that in this particular case there was no evidence in the record to demonstrate that other options short of prior restraint on the press would not have served the interest of ensuring Simants a fair trial.

Chief Justice Burger noted that most of the other alternatives had been discussed with approval in Sheppard v. Maxwell (1966). These options included: (a) change of trial venue; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence; and (d) the use of emphatic and clear instructions on the sworn duty of each juror. Sequestration of jurors also is always an option. In overruling the gag order, which sought to prohibit “implicative” information, the Court also noted the reality of the problems of managing and enforcing pre-trial restraining orders and stated that these orders were too vague and too broad to survive the scrutiny that has been given to restraints on First Amendment rights.

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