First Amendment Friday 13 – Nebraska Press Assoc. V Stuart

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Happy Friday and welcome to the 13th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

First Amendment Friday 9 – Gertz v Welch Inc.

First Amendment Friday 10 – Hustler V Falwell

First Amendment Friday 11 – Bartniki V Vopper

First Amendment Friday 13 – Landmark V Virginia

This week we are looking at a case that pits the First Amendment protections against censorship, even temporary censorship, against the Sixth Amendments fair trial protections.

The Case

The Nebraska Press Association file for a stay of a court order which prevented them from publishing the very sensational facts of a indictment for six counts of murder in a small Nebraska town.

The Facts

In October 1975 police found six members of a single family murdered in their home in Sutherland Nebraska, a town of 850.

There was a suspect, a Mr. Simants, whose name and description as a suspect was released to the public. The public was urged by police to stay off the streets and to be careful who they admitted to their homes.

Because of this extreme measure there was instant local, regional and national press attention to the case.

Mr. Simants was captured and arraigned in Lincoln County Court. In order to assure a fair trial, the prosecution argued for a gag order on the facts of the case. Counsel for the defendant joined this motion and the County Court ruled that no one present or involved in the arraignment could release information about it or any evidence presented there .

There was a confession to police and statement of culpability to others which were entered as evidence. There was also some indication from autopsies that there was preparation for or actual sexual assault as part of the crime.

Nebraska law allowed for a change of venue, but only to counties adjacent to the county a person is arraigned in. Further, the law required a trial within six months of arraignment.

The Procedural History.

The petitioners (Nebraska Press Association) asked for the District Court to vacate the County Courts gag order. The District Court Judge heard evidence including the testimony of the Count Judge. There were also several newspaper articles about the entered into evidence.

The District Judge vacated the County Courts order but imposed on of his own. He made the order last until a jury was impaneled and it had five main areas:

1)The existence of or contents of any confession made by the defendant to the police. (this had been entered into evidence in open court. )

2)The fact or nature of statements Mr. Simants had made to other people.

3)The contents of a note Mr. Simants had written the night of the crime.

4)Aspects of the autopsy testimony from the preliminary hearing.

5)The names of the victims and the aspects of the sexual assault

In addition to these aspects the Judge prohibited reporting on the nature of the restrictive order itself, as that was seen as exposing pejorative information in and of itself.

The petitioners asked the District Court to stay its own order. At the same time they applied for a ruling from the Nebraska Supreme Court.

The Nebraska Supreme Court had to balance the States interest in having Mr. Simants have a fair trial with the need of the people and the press to be free to know and discus topics of interest being decided in the Courts.

They found due to the statutory requirements on bringing a case to trial in six months and the inability, also under statute, to move the case anywhere but into counties close to Lincoln County and as sparsely populated, there was considerable chance of the a tainted jury pool if there was not a restriction on the press’s ability to report on this case, until a jury could be impaneled.

In order to strike a balance, the Nebraska Supreme Court modified the District Courts order so that only three areas where prohibited;

1)The existence or nature of any confessions made by Mr. Simants to the police.

2)Any confessions or admissions made to any third party, with the exception of the press.

3)Other facts “strongly implicative” of the defendant.

The Court also reviewed the law on closure of Court proceedings and remanded the cast back to the District Court for consideration of closure of the pretrial proceedings to the public and press.

The Legal Issues:

Does the Supreme Court have the right to look into a case whose facts have become moot, through the expiration of a Court order?

What is the proper balance between the First Amendments press protections and the accused defendants Six Amendments protections for a fair trail by jury?

There are some thorny issues here. Obviously it is critically important that anyone accused of a crime, even a brutal and sensational crime have a fair trial. Part of the problem is there is a presumption that certain facts once known by the population from which a jury will be chosen would prevent them from judging the case solely on the fact presented at trail. This is a fact many people seem to fail to understand, until they sit on a jury themselves. You are only allowed to make the determination of guilt on what you see and hear in the Court. You can not use outside facts and you most assuredly are not supposed to bring anything other than an open mind to the task. Predetermined guilty is a real problem in our adversarial system.

This has to be balanced with the very real issue of censoring the press, in nearly any form by the Government. The Framers were very sure if they allowed this in nearly any form, other than the most controlled and presumptive of the freedom, the Government would take more and more control of the methods by which the population received the needed information for required for a free people to govern themselves appropriately. This is what the Nebraska Supreme Court was trying to balance and what the Supreme Court went on to more clearly define.

The Opinion

There were no dissents and four concurring opinions in this case. Mr. Chief Justice Burger wrote the opinion.

He starts out with the first point of law, whether it is appropriate for the Court to look at a case whose argument has expired. He points out there is not Constitutional basis to look at expired controversies, but there is case law, Southern Pacific Terminal Co. v ICC, which allows the Court to delve into issues which are “capable of repetition, yet evading review”.

This is important as there are many issues which are likely to come up, but are of a very limited time horizon, which would generally prevent the Supreme Court from having time to weigh in on. This could easily lead to unconstitutional abuses on a regular basis, if the Court did not reserve this right.

The Chief Justice then goes on to note the tension between the First and Sixth Amendments is one that has existed as long as the Bill of Rights. He makes the assertion the Framers knew there would be a problem here, many of them being lawyers, but decided they would not resolve it concretely as their primary concern was the free exchange of ideas, which they valued as the primary need of a democratic Republic.

He writes about the treason trial of Aaron Burr had a level of sensationalism about it which required the Chief Justice of the time, who presided of the trial, to spend an extensive amount of time questioning the potential jurors (called voir dire in Latin) to find a panel who could look at the evidence without prejudice.

He then writes;

The speed of communication and the pervasiveness of the modern news media have exacerbated these problems, however, as numerous appeals demonstrate. The trial of Bruno Hauptmann in a small New Jersey community for the abduction and murder of the Charles Lindberghs’ infant child probably was the most widely covered trial up to that time, and the nature of the coverage produced widespread public reaction. Criticism was directed at the “carnival” atmosphere that pervaded the community and the courtroom itself. Responsible leaders of press and the legal profession — including other judges — pointed out that much of this sorry performance could have been controlled by a vigilant trial judge and by other public officers subject to the control of the court.

He goes on to note that post Hauptmann, the Bar Associations and the States worked together to try to develop guidelines by which such excesses could be avoided in the future. He then writes:

In practice, of course, even the most ideal guidelines are subjected to powerful strains when a case such as Simants’ arises, with reporters from many parts of the country on the scene. Reporters from distant places are unlikely to consider themselves bound by local standards. They report to editors outside the area covered by the guidelines, and their editors are likely to be guided only by their own standards. To contemplate how a state court can control acts of a newspaper or broadcaster outside its jurisdiction, even though the newspapers and broadcasts reach the very community from which jurors are to be selected, suggests something of the practical difficulties of managing such guidelines.

The problems presented in this case have a substantial history outside the reported decisions of courts, in the efforts of many responsible people to accommodate the competing interests. We cannot 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.

The point he is making is the Supreme Court does not make policy, it decides only on the cases in front of it. This is a good thing in that it prevents, to some degree, overreach by the nations highest Court, by limiting the scope of what they can take on. This is a happy thing for the Justices too, as they are often really hesitant to make sweeping decisions and being limited to the case before them keeps them, for the most part, from doing so.

The Chief Justice goes on to explain the nature of the Sixth Amendment and provide some examples where over the top press coverage has so tainted the process the Supreme Court felt it had to order new trails to assure the protections of this Amendment were upheld. He quotes from Sheppard V Maxwell, a case in 1966 which the Supreme Court was very clear about the responsibilities of Judges in assuring a fair trial, as well as the methods the Supreme Court felt were allowable:

The Court noted that “unfair and prejudicial news comment on pending trials has become increasingly prevalent,”, and issued a strong warning:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. . . . Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.

(emphasis added). Because the trial court had failed to use even minimal efforts to insulate the trial and the jurors from the “deluge of publicity,”, the Court vacated the judgment of conviction and a new trial followed, in which the accused was acquitted.

He goes on to note a case, Strobel V California, where the Supreme Court upheld a conviction, even though the taped confession to the police of the defendant was released to the local news. He makes the point there is a balance to be found and can be maintained by Courts inside the Supreme Courts guidance.

The Chief Justice then turns to the First Amendment and the idea that prior restraint of the press must have an extremely high threshold to be Constitutional in any manner. The basic argument is in the Untied States we have remedies for all kind of problems which might be caused by the actual printing or dissemination of information, but we generally reserve these remedies until action has taken place.

This means that laws which preemptively prevent the publication of any information, even for a short time, are generally considered beyond the pale. The fear here is allowing the Government to say in advance that some proposed publication is illegal or puts the publisher in jeopardy is the very definition of censorship and exactly what the Framers feared and acted to prevent with the First Amendment.

While recognizing the Nebraska Supreme Courts good intentions in their order, the Supreme Court found that there was not enough evidence the prior restraint would have the desired effect, because of the small population of the town where the crime happened. It also found there was not enough other actions taken or explored short of this restraint to justify this constitutionally extreme step. Finally it found there was little evidence to show there was an actual threat to Mr. Simants chances of getting a fair trial.

The Chief Justice concludes:

Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high, and the presumption against its use continues intact. We hold that, with respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have not been overcome; to the extent that this order restrained publication of such material, it is clearly invalid. To the extent that it prohibited publication based on information gained from other sources, we conclude that the heavy burden imposed as a condition to securing a prior restraint was not met, and the judgment of the Nebraska Supreme Court is therefore Reversed.

What the Court did here was to uphold its previous guidance on this issue. It reaffirmed the primacy of the First Amendment while preserving the doctrine that the First Amendment was not without boundaries, but the threshold where it might be abridged is high and must remain high.

The Dog thinks this is just about right. There are many actions a Judge can take to limit the damage intensive press coverage of sensational cases generates. All of these should be taken prior to restraining the actions of the Press to report on what happens in the courts of this nation. When court proceedings become secret, this where abuses can creep in. It is one of the very worrying aspects of the FISA Courts, there is no chance we the people can see the actual workings of one of our courts. This may or may not be abused, but without the sunshine of the press, there is no way to know.

There is this weeks, case, what are your thoughts, Citizens? The floor is yours.

Housekeeping: As always many thinks to the Legal Information Institute for providing the text of the decisions on-line. You can find today’s case here.

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