by John Bender, professor emeritus
You may be tired of hearing about Donald Trump’s criminal indictments but imagine how angry people would be if they could know nothing of the prosecutions.
That the public knows so much of the evidence is in no small part because of a 1976 Supreme Court decision called Nebraska Press Association v. Stuart.
The decision arose from a 1975 murder case. Erwin Charles Simants murdered six members of the Henry Kellie family in Sutherland, Nebraska, a small town west of North Platte. At Simants’ preliminary hearing, County Judge Ronald Ruff prohibited media publication of any testimony—even though the hearing was open to the public. District Judge Hugh Stuart and the Nebraska Supreme Court modified Ruff’s gag order but kept it in place until the start of Simants’ trial in January 1976.
Nebraska news organizations saw the gag order as a threat to the First Amendment and wanted to take the issue to the U.S. Supreme Court. They had no guarantee of success, and the initial response from the court made journalists fear they could lose.
When the Nebraska Supreme Court was slow to take up the media’s case, the news organizations sought an emergency stay of the gag order from Justice Harry Blackmun. Initially, Blackmun refused, saying the Nebraska court should act first. A week later, when the Nebraska court still had not acted, Blackmun tossed the parts of the gag order, but he kept in place the prohibition on publishing any confessions or statements Simants made. Blackmun said jurors would have difficulty setting aside the knowledge Simants had confessed.
News organizations responded with anger. The New York Times, in an editorial headlined “Choking the Press,” said Blackmun’s ruling would turn judges into editors and allow them to censor what is reported about criminal cases. The Society of Professional Journalists (Sigma Delta Chi) called Blackmun’s opinion a dangerous precedent. Tom Wicker, a Times columnist, wrote that Blackmun’s approach would allow judges to bar publication of facts about a case based on speculation that the information might prevent the defendant’s receiving a fair trial.
The Nebraska Supreme Court finally heard oral arguments and issued a decision on Dec. 1. The court upheld the prohibition on reporting confessions Simants made to law enforcement officers, confessions made to third parties other than reporters and “other information strongly implicative of the accused as the perpetrator of the slayings.”
With a final ruling from the Nebraska Supreme Court in hand, the state’s news organizations pushed to have the full U.S. Supreme Court hear the case. But there were dangers in doing so. In the 1971 Pentagon Papers case, Blackmun and Chief Justice Warren Burger had dissented from a decision to deny the Nixon administration’s request for a prior restraint on publication of information from a top-secret study of U.S. involvement in the Vietnam War.
And the First Amendment climate on the court had become chillier. Justice Byron White wrote a 1974 opinion dismissing media claims of a First Amendment right to protect confidential sources. Blackmun, Burger, William Rehnquist and Lewis Powell had joined that opinion. Finally, one of the most ardent defenders of the First Amendment, Justice William O. Douglas, had died. How his replacement, John Paul Stevens, might vote could not be predicted. It was easy to envision a five- or six-member majority upholding some form of a gag order.
News organizations also feared the issue would become moot once Simants’ trial started in early January. At that point, the gag order would be lifted. The Nebraska media wanted an expedited hearing and decision from the Supreme Court before the trial to avoid the issue’s becoming moot.
The justices, too, were concerned about the issue of mootness and other issues. Blackmun’s notes of the justices’ conferences, which are in the Library of Congress, show they pondered several issues. Should they summarily reverse the Nebraska Supreme Court? Should they expedite any hearing and decision? Will the case be moot if the court takes it up after Simants’ trial?
Only Justice Thurgood Marshall wanted to expedite the hearing. William Brennan and Potter Stewart wanted to summarily reverse the Nebraska courts and agree to hear the case. Rehnquist and Powell opposed an expedited hearing, and both thought the case would be moot once Simants’ trial began.
White thought the Nebraska courts had erred, but he feared that summarily reversing the gag orders would lead lower courts to close preliminary hearings. On the issue of mootness, both White and Burger suggested the court could take up the issue after Simants’ trial under an exception to the mootness rule: Where an issue is capable of arising repeatedly but is so temporary as to avoid review, the court can treat it as not moot.
The justices voted to deny the Nebraska media’s requests to vacate the state Supreme Court’s ruling, to expedite hearing and to stay enforcement of the gag order. But they agreed to hear the case and scheduled it for oral arguments in April.
Two days after oral arguments, on April 21, the justices met to vote on the case. Every justice concluded the Nebraska courts had overstepped their bounds by gaging the media. Burger delivered a scathing estimation of state Judges Ruff and Stuart: “Some judges are spineless,” he said, according to Blackmun’s notes.
Although all justices agreed the gag order violated the First Amendment, they split on how far to go in limiting the ability of trial judges to impose prior restraints. Burger thought judges could manage prejudicial news coverage without prior restraints, but he wanted to leave open the possibility of using them in extraordinary cases. Brennan, however, thought prior restraints could be employed only in wartime for protecting national security. The majority sided with Burger.
The difference between Brennan’s and Burger’s opinions may be minor. Burger set such a high bar for prior restraints that of the dozens of cases where judges have tried to impose them, they have been upheld on appeal only three times. All involved leaks of nonpublic information, and in two of those instances, most of the information about the case eventually was published anyway. When it comes to publishing information about criminal cases derived from ordinary reporting, the prohibition on prior restraints approaches absolute.
The Supreme Court announced its decision in Nebraska Press Association v. Stuart on June 30, 1976, just four days before the 4th of July. It was the perfect birthday present for the country’s bicentennial.