Supreme Court said no to prior restraints on press 25 years ago
One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).
Federal Judge Irving R. Kaufman once wrote: “Events that occur in small towns sometimes have a way of raising large constitutional questions.” Such was the case in the tiny town of Sutherland, Neb., when a series of horrific murders led to one of the greatest victories for the press in the history of First Amendment jurisprudence.
In October 1975, Erwin Charles Simants murdered six members of the Henry Kellie family in Sutherland. More than a year later, the U.S. Supreme Court ruled in Nebraska Press Association v. Stuart that the trial judge in Simants’ criminal case had improperly gagged the press and issued an unconstitutional prior restraint.
Robert O’Neil, founder of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression, says he ranks the case as one of the top three free-press cases in First Amendment law. “I think it ranks alongside New York Times Co. v. Sullivan and New York Times Co. v. United States as the most important First Amendment free-press cases,” he says.
Alan Bierman, the current executive director of the Nebraska Press Association, says that “this case represents probably the most significant of all First Amendment cases as it relates to the press and open courts.”
The crime attracted a large amount of media attention in the rural community. A few days after the crime Simants’ attorney and the county attorney asked the local county court to enter an order relating to “matters that may or may not be publicly reported or disclosed to the public.” The attorneys argued that greater press coverage would make it impossible to comply with the Sixth Amendment right to an impartial jury.
County Court Judge Ronald Ruff issued a restrictive order, prohibiting anyone who attended Simants’ preliminary hearing from “releas(ing) or authoriz(ing) the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced.”
Simants’ preliminary hearing was held but was subject to Ruff’s order. The Nebraska Press Association, which consisted of several print and broadcast outlets, petitioned District Judge Hugh Stuart to vacate this restrictive order.
Stuart found “because of the nature of the crimes charged in the complaint that there is a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.”
Stuart’s order applied until a jury was chosen. The order prohibited the press from reporting on five subjects: (1) the existence or content of Simants’ confession; (2) statements Simants made to other people; (3) the contents of a note Simants had written; (4) medical testimony at the preliminary hearing; and (5) the identity of the victim of the sexual assault and the nature of the assault. Stuart also incorporated the Nebraska Bar-Press Guidelines into his order. These guidelines were a self-described “voluntary code” for the press in its reporting on criminal cases.
“I modified the county judge’s order because I thought it was too broad,” Stuart says now. “I was trying to achieve a balance between the First Amendment right to a free press and the Sixth Amendment right to an impartial jury.”
The Nebraska Press Association appealed the trial judge’s decision to restrain media publication to the Nebraska Supreme Court, which further modified the prior restraint. The state high court prohibited the press from reporting on (1) the confession; (2) any confessions or statements made to third parties, except members of the press; and (3) other facts “strongly implicative” of the accused.
In the meantime, the case went on to trial and Simants was found guilty of murder and sentenced to death.
However, during a post-conviction proceeding, it was discovered that the local sheriff had visited with the jurors and even played cards with them during the trial while they were sequestered at a Howard Johnson motel. Because of these irregularities, Simants’ conviction was vacated and he received a new trial.
During his second trial, Simants was declared not guilty by reason of insanity. However, under state law, the state could commence civil commitment proceedings against Simants. Since 1979, he has remained institutionalized as a ward of the state at Lincoln Regional Center.
Every year, a judge has declared that he is still mentally ill and dangerous even though doctors at Lincoln Memorial say he is no longer mentally ill. “I think there is a tremendous amount of pressure not to release him,” says Bob Lindemeier, the Lincoln County public defender, who represents Simants in his annual review. “It is very frustrating for Mr. Simants because he is not getting any treatment and is simply being warehoused.”
Taking the case to U.S. Supreme Court
Because Simants’ first criminal trial had already taken place by the time the U.S. Supreme Court heard the case, the state argued in its briefs before the high court that the gag-order issue was moot.
Alan Peterson, counsel for several of the news media entities in the case, including the Nebraska Press Association and the North Platte Telegraph, said that a number of newspaper publishers strongly insisted on standing up for their First Amendment rights.
“The Nebraska Press Association was a very principled organization and had a lot of enthusiasm and appreciation for the First Amendment,” Peterson said. “The association was made up of mostly locally owned newspapers whose publishers had an immediate recognition that this gag order was extreme and cut right to the heart of the First Amendment.
“The Omaha and Lincoln newspaper owners were particularly adamant in pursuing the case all the way to the United States Supreme Court,” Peterson said. And they did.
“It is amazing that a press association from a rural Midwestern state and its members would find the time, finances and the resolve to take this case to the Supreme Court,” says Bierman.
Peterson told some other attorneys handling the matter to consider also challenging another aspect of Stuart’s handling of the press. During the early stages of jury selection, Stuart had closed the courtroom to the news media.
However, it was decided that the best legal strategy would be to take only one question up to the U.S. Supreme Court — the question about the prior restraint. “I had suggested that the closed-court problem also be taken up,” Peterson recalls. “But the determination was made that they did not want to clutter the case with a second issue. Because of that decision, this was one of the cleanest cases procedurally with the isolated issue of the gag order as a prior restraint.”
The case eventually reached the U.S. Supreme Court. E. Barrett Prettyman, a Washington, D.C.-based attorney, argued the case on behalf of the Nebraska Press Association. Floyd Abrams also argued the case on behalf of several friends of the court, including NBC.
Prettyman says he is still proud of a hypothetical that he posed during oral arguments: “Imagine that all the ministers, priests and rabbis in town learned of the confession and then wanted to preach about the confession as an example of the devil at work. The court would never approve of a prior restraint on the clergymen preaching about the content of the confession. Why should the court impose a prior restraint on another group — the press — that is protected by the First Amendment?”
“The court asked a lot of questions and some of them were not terribly friendly but that is to expected,” says Prettyman who has argued 19 cases before the U.S. Supreme Court.
For his part Judge Stuart did not attend oral arguments. “I had a full docket,” he recalls. “I guess the old saying — ‘When you’re up to your ass in alligators, you have to keep your mind on draining the swamp’ — applied to my situation.
“My philosophy as a trial judge was to find out the current cases and what the law was and then apply it accordingly,” he said.
“I was surprised that the U.S. Supreme Court took the case because the order that I had re-entered had long since been dissolved when the jury was impaneled,” Stuart said. “I guess I am the only man in the state of Nebraska to be sued directly in the U.S. Supreme Court.”
Supreme Court decision
Even though Simants had already been convicted, the U.S. Supreme Court ruled the case was not moot in its opinion, finding that it was “capable of repetition in two senses.” The high court reasoned that if the Nebraska Supreme Court reversed Simants’ conviction, a trial judge could issue another similar prior restraint. The high court pointed out that the issue was likely to arise again because the state of Nebraska was defending Stuart’s order. “The dispute between the State and the petitioners who cover events throughout the State is thus ‘capable of repetition.’”
In the court’s main opinion, then Chief Justice Warren Burger wrote that “the problems presented by this case are almost as old as the Republic” and added that “it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press.” The case featured a clash between the First and Sixth Amendments.
The Supreme Court had to determine whether Stuart’s action in muzzling the media was a constitutional method of ensuring the Sixth Amendment right to a trial by an “impartial jury.”
The Supreme Court wrote that “the state trial judge in the case before us acted responsibly, out of a legitimate concern, in an effort to protect the defendant’s right to a fair trial.” However, the high court determined that the trial judge’s order violated the First Amendment.
In oft-cited language, the high court wrote that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
In order for a trial judge to issue a prior restraint — “one of the most extraordinary remedies known to our jurisprudence” — the judge must determine three things:
- The nature and extent of pretrial news coverage.
- Whether other measures would lessen “the effects of unrestrained pretrial publicity.”
- How effective the prior restraint would be to prevent the threatened danger.
In applying this test, Burger concluded that Stuart was correct in finding that there would be intensive pretrial publicity in the Simants case. However, the high court reversed the Nebraska state courts, finding that Stuart did not make findings of fact showing that other alternatives would not have protected the defendant’s Sixth Amendment right to an impartial jury.
These alternatives included: a change of trial venue, postponement of the trial, intensive questioning of prospective jurors, clear and emphatic jury instructions, and sequestration of the jurors. Burger also wrote that “trial courts in appropriate cases may limit what the contending lawyers, the police and witnesses may say to anyone.”
Burger concluded: “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.”
In a separate concurring opinion Justice William Brennan, joined by Justices Potter Stewart and Thurgood Marshall, went even further when they said that no prior restraint could ever be issued against the press. “But at least in the context of prior restraints on publication, the decision of what, when, and how to publish is for editors, not judges,” Brennan wrote.
“Though my own personal view was closer to Brennan, I was perfectly happy to obtain the Burger view as the court’s main opinion,” Prettyman said, adding that he was “very surprised” the decision was unanimous. O’Neil agreed that the unanimous decision was a surprise to many First Amendment experts at the time.
But Peterson said, “I was overjoyed. I had attended oral arguments and thought we would win.”
Stuart said the decision and its unanimity surprised him as well. “The pendulum tends to swing with respect to the press,” Stuart says. “The press gained a tremendous amount of respect and adulation in the Watergate case. So by the time of the Simants case, the press was extremely powerful. Then, sometimes, as in the Sam Shepard and O.J. Simpson cases, the press goes wild and the pendulum swings the other way.
“If I could be magically transported back to 1976, I would obviously have made a finding that alternative measures would not have ensured a fair trial and placed it in the order,” Stuart said. “But if you ask me would I have not entered the prior restraint, the answer is no.
“I am not proud of the decision nor am I ashamed of my conduct in the case. I worked hard on that case and it is part of history,” Stuart says.
“One thing about the opinion is that Justice Burger stated that I had ‘acted responsibly.’ Fred Friendly later told me that he ran into Justice Burger at a dinner party after the case was argued but before the decision was announced. Friendly told me that Burger said: ‘You know that trial judge, he did the only thing that a trial judge could have done under the circumstances.’ I wish Burger had included that in his opinion.”
First Amendment experts say the press would not be nearly as free without the decision 25 years ago in Nebraska Press Association v. Stuart.
“Imagine if five justices had ruled against Nebraska Press. We would have gag orders all over the place on the press,” Prettyman says. “These orders would be placed to protect defense witnesses and all other imagined rights. I think it made a terribly important contribution to First Amendment jurisprudence.”
Prettyman says he doubts that the current U.S. Supreme Court would issue a unanimous ruling in Nebraska Press if it were decided today. “I think Justices (Antonin) Scalia and (Clarence) Thomas might have a different view.”
O’Neil says the case was a tremendous victory for First Amendment advocates, especially given the law at the time. “There was an expectation going into the case that if a trial judge made a reasonable determination of the need to gag the press, then that determination would be given substantial deference.”
After Nebraska Press, prior restraints on the press are viewed with great suspicion. “It placed forever on the trial judge a high burden of proof to show a compelling need for the restraint and for showing that the trial judge had exhausted other alternatives or possibilities,” O’Neil explains.
“The case is important because it stands as a virtual ban on prior restraint against the press,” Prettyman says.
“Clearly, the nation is indebted to Nebraska journalists for their sense of responsibility and personal investment in freedom of expression,” wrote Will Norton Jr., dean of the College of Journalism and Mass Communications at the University of Nebraska, Lincoln, in a summer 2001 alumni publication looking back on the historic case.