Nebraska Press Association v. Stuart, 427 U.S. 539; S. Ct. 2791; 49 L. Ed. 2d 683 (1976)

Nebraska Press Association v. Stuart, 427 U.S. 539; S. Ct. 2791; 49 L. Ed. 2d 683 (1976)

Facts—On October 18, 1975, the police found six members of the Henry Kellie family murdered in their home in Sutherland, Nebraska, a town of about 800 persons. A suspect, Edwin Charles Simants, was arrested. The crime attracted very wide coverage. The county attorney and Simants jointly asked the judge for an order restricting the flow of news so as to guarantee the defendant a fair trial. The judge agreed. His order prohibited everyone in attendance from releasing or authorizing for public dissemination in any form or manner whatsoever any testimony given or evidence deduced. The judge’s order prohibited the press from reporting in five areas. The Nebraska Supreme Court affirmed.

Question—Can a judge, in order to ensure a defendant a fair trial under the guarantees of the Sixth Amendment, restrain the news media from reporting information as to pretrial events relating to a murder?


ReasonsC.J. Burger (9–0). The problems presented by this case, said the Court, are as old as the republic itself. From the very first days of the Constitution there was a potential conflict between the First and the Sixth Amendments. These problems have an impact and history outside the Court. “We cannot,” said the Court, “resolve all of them, for it is not the function of this Court to write a code. We look instead to this particular case and the legal context in which it arises.” Pretrial publicity, however, “does not inevitably lead to an unfair trial.” What the judge says and how he acts also sets the tone of the trial and whether or not the defendant receives a fair trial. “A prior restraint, by con- trast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for a time.” The Court will not assign priorities between the First and Sixth Amendments. “There is no finding that alternative measures,” said the Court, “would not have protected the defendant’s rights.”

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