Nebraska Press Assn. v. Stuart

Nebraska Press Assn. v. Stuart

Litigants=Nebraska Press Association v. Stuart
ArgueDate=April 19
DecideDate=June 30
FullName=Nebraska Press Association v. Judge Hugh Stuart
Holding=The implementation of a prior restraint would not serve the accused rights.
JoinMajority=Blackmun, Rehnquist
JoinConcurrence=Stewart, Marshall
LawsApplied=U.S. Const. amend. I
In the 1976 landmark case "Nebraska Press Association v. Stuart", ussc|427|539|1976, the Court addressed the constitutionality of an order prohibiting the media from publishing or broadcasting certain information about Erwin Charles Simants, who was accused of murdering the Henry Kellie family in a small town in Nebraska. This case pitted the First Amendment rights of a free press against the defendant's Sixth Amendment right to a fair trial.

To ensure that Simants received a fair trial, the Nebraska Supreme Court modified the district court's order to prohibit reporting of confessions or admissions made by Simants or facts "strongly implicative" of Simants.

A prior restraint is an official restriction of speech prior to publication. Prior restraints are viewed by the Supreme Court of the United States as "the most serious and the least tolerable infringement on First Amendment rights" (Note 1). Since 1931, the Court repeatedly has found that such attempts to censor the media are presumed unconstitutional.


On appeal, the U.S. Supreme Court struck down the prior restraint order. The Court emphasized that the use of prior restraint is an "immediate and irreversible sanction" that greatly restricts the First Amendment rights of the press. "If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time," Chief Justice Warren E. Burger wrote for the Court.

To determine whether the prior restraint order was justified, the Court applied a form of the "clear and present danger" test, examining whether "the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." United States v. Dennis, 183 F.2d 201, 212 (CA2 1950), aff'd, 341 U.S. 494 (1951). In applying this test, the Court articulated a three-part analytical framework, which imposed a heavy burden on the party seeking to restrain the press. First, the Court examined "the nature and extent of the pretrial news coverage." Second, the Court considered whether other less restrictive measures would have alleviated the effects of pretrial publicity. Finally, the Court considered the effectiveness of a restraining order in preventing the threatened danger.

The Court found that the trial judge reasonably concluded that the "intense and pervasive pretrial publicity" in the Simants case "might reasonably impair the defendant's right to a fair trial." However, the trial judge did not consider whether other measures short of a prior restraint order would protect the defendant's rights. The trial judge should have considered changing the location of the trial, postponing the trial, intensifying screening of prospective jurors, providing emphatic and clear instructions to jurors about judging the case only on the evidence presented in the courtroom or sequestering the jury.

The Court also found that the effectiveness of the trial judge's prior restraint order to protect Simants' right to a fair trial was questionable. Because the prior restraint order is limited to the court's territorial jurisdiction, it could not effectively restrain national publications as opposed to publications within the court's jurisdiction. Moreover, it is difficult for trial judges to draft effective prior restraint orders when it is hard "to predict what information will in fact undermine the impartiality of jurors." Finally, because this trial took place in a town of 850 people, rumors traveling by word of mouth may be more damaging to the defendant's fair-trial rights than printed or broadcasted news accounts. In short, the probability that the defendant's fair-trial rights would be impaired by pretrial publicity was not shown with "the degree of certainty" needed to justify a prior restraint order.

Because the "barriers to prior restraint remain high and the presumption against its use continues intact," prior restraint orders are rarely upheld. As a result, editorial decisions about publication of information the government deems sensitive are generally left solely to the discretion of news organizations. Nevertheless, government officials and private individuals occasionally attempt to stop publication.

ee also

*List of United States Supreme Court cases, volume 427
*"Near v. Minnesota", ussc|283|697|1931
*"New York Times v. United States", ussc|403|713|1971
*"Bantam Books, Inc. v. Sullivan", ussc|372|58|1963

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