NEBRASKA PRESS ASSOCIATION v. STUART 427 U.S. 539 (1976)

inNebraska Press Association v. Stuart the Court addressed for the first time the constitutionality of a prior restraint on pretrial publicity about a criminal case. Noting the historic conflict between the first and sixth amendments, the Court refused to give either priority, recognizing that the accused's right to an unbiased jury must be balanced with the interests in a free press. At issue was a narrowly tailored gag order in a sensational murder case restraining the press from publishing or broadcasting accounts of the accused's confessions or admissions or "strongly implicative" facts until the jury was impaneled.

Applying the standard of dennis v. united states (1951) and inquiring whether "the gravity of the 'evil,' discounted by its improbability justified such invasion of free speech as is necessary to avoid the danger," the Court struck down the gag order. To determine whether the record supported the extraordinary measure of a prior restraint on publication, the Court considered the nature and extent of pretrial news coverage, the likelihood that other measures would mitigate the effects of unrestrained pretrial publicity, and the effectiveness of a restraining order to prevent the threatened danger, and, further, analyzed the order's terms and the problems of managing and enforcing it. The gag order was critically flawed because it prohibited publication of information gained from other clearly protected sources.

justice william j. brennan, joined by Justices potter j. stewart and thurgood marshall, concurring, argued that a prior restraint on the press is an unconstitutionally impermissible method for enforcing the Sixth Amendment. Refusing to view the First and Sixth Amendments as in irreconcilable conflict, he noted that there were numerous less restrictive means by which a fair trial could be ensured. Justice byron r. white doubted whether prior restraints were ever justifiable, but did not believe it wise so to announce in the first case raising that question. Justice lewis f. powell emphasized the heavy burden resting on a party seeking to justify a prior restraint.

Kim Mc Lane Wardlaw
(1986)

(see also: Free Press/Fair Trial; Prior Restraint and Censorship.)