Historian, First Amendment lawyer discuss conflicting rights

Friday, September 5, 2008


By Laura Brookover

WASHINGTON — Erwin Simants brutally murdered a family of six in October 1975 in a small Nebraska town. That horrific crime and the news coverage surrounding it soon sparked a legal clash between the First Amendment’s guarantee of a free press and the Sixth Amendment’s guarantee of the right to a fair trial before an unbiased jury. The conflict culminated in the landmark 1976 U.S. Supreme Court ruling, Nebraska Press Association v. Stuart.

The First Amendment Center launched its “Topics of Our Times” fall program series last night with a discussion of a book about that famous case, Mark Scherer’s Rights in the Balance, an incisive narration of the legal battles following Simants’ crime.

The program was moderated by First Amendment scholar Ron Collins and featured Scherer, an associate history professor at the University of Nebraska-Omaha, and Floyd Abrams, a renowned First Amendment lawyer and partner in the New York law firm of Cahill Gordon & Reindel. Abrams has argued 10 First Amendment cases before the Supreme Court. The Nebraska Press Association case marked Abrams’s first oral argument before the nine justices; he co-argued the case with Barrett Prettyman.

The Scherer and Abrams exchange, which took place in the Newseum’s Knight Conference Center, focused on the constitutional tug-of-war that produced the historic case. The state judges trying the Simants crime issued a gag order against the press, believing that this was necessary to ensure Simants was tried before an unbiased jury. As Abrams put the issue; “How can we let the press publish at the same time that we give the defendant a genuinely fair trial?”

The Scherer book focuses on the legal conflicts surrounding the Simants crime, along with narratives of the people who were embroiled in the controversy. “As a historian, my job is to tell stories and to address the legacy they produce … to bring to life the stories of the lawyers, the judges, the victims of this crime,” the author explained in an interview before the event. This human perspective is important, Scherer said, because “there’s a degree of inspiration that can be gleaned from being made aware of the good-faith efforts of the lawyers, judges and journalists who struggled with this weighty constitutional conflict.”

When Abrams argued the matter on behalf of the Nebraska Press Association, he maintained that “we can give someone a fair trial by a variety of other means,” hence the gag order violated the First Amendment’s free-press guarantee. The Court unanimously decided in favor of First Amendment protections and effectively made this type of gag order on the press all but obsolete in such cases.

Abrams said yesterday that following the Court’s seminal decision “judges are taught that prior restraints against the press are not part of the power they have.”

He noted that the degree of protection afforded to the press in the United States is unknown in other countries. Even so, Abrams added, the U.S. legal system balances the singular freedoms of the press with equally unique protections for the criminal defendant.

“We do import into our system protections and reversals for things that would not be reversed in other parts of the world,” he said. “Many reversals here because of police misconduct are unique to America.”

At the conclusion of last night’s event, Collins announced that Abrams will soon make his movie debut in “Nothing but the Truth,” a film to be released in theaters on Dec. 19. Abrams plays a judge in a case involving, appropriately enough, a reporter who refuses to reveal her source.

Rights in the Balance is published by Texas Tech University Press and is Scherer’s second book.

The next “Topics of Our Times” event is Sept. 9 and will feature a panel discussion concerning the just-published book Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Anthony R. Picarello and Douglas Laycock.

Laura Brookover is a legal intern at the First Amendment Center in Washington, D.C., and a second-year student at Georgetown University Law Center.