Nebraska Press Association v. Stuart
Decided on June 30, 1976; 427 US 539

In a criminal trial prior restraint on the press can be used only after less restraining measures
to protect a right of fair trial have been found inadequate.



A. Issues Discussed: Freedom of the press

B. Legal Question Presented:

Did the judge's order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police violate the constitutional guarantee of freedom of the press?


A. Background:

"Respondent Nebraska state trial judge, in anticipation of a trial for a multiple murder which had attracted widespread news coverage, entered an order which, as modified by the Nebraska Supreme Court, restrained petitioner newspaper, broadcasters, journalists, news media associations, and national newswire services from publishing or broadcasting accounts of confessions or admissions made by the accused to law enforcement officers or third parties, except members of the press, and other facts 'strongly implicative' of the accused.

The modification of the order had occurred in the course of an action by petitioners, which had sought a stay of the trial court's original order and in which the accused and the State of Nebraska intervened. This Court granted certiorari to determine whether the order violated the constitutional guarantee of freedom of the press. The order expired by its own terms when the jury was impaneled. Respondent was convicted; his appeal is pending in the Nebraska Supreme Court."

On certiorari, the US Supreme Court reversed the judgment of the Supreme Court of Nebraska.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
"The First Amendment prohibits any prior restraints on the press, especially on the reporting of public open court proceedings or public records relating to criminal proceedings. A fair trial can be assured in a variety of ways that are less restrictive than the placement of prior restraints on the press." "Pretrial publicity, in extraordinary circumstances, can effectively deny a defendant his Sixth Amendment rights. First Amendment freedoms are not absolute, and if in direct conflict with the principles of the Sixth Amendment which are fundamental to our form of government, there is a need for order. The restraints on the press are temporary and there existed no other means to protect the defendant in this extraordinary case."
Opposing Side
E. Barrett Prettyman, Jr., argued the cause for petitioners. With him on the briefs were James L. Koley and Stephen T. McGill.

Floyd Abrams argued the cause for the National Broadcasting Co. et al. as amici curiae urging reversal. With him on the brief were Eugene R. Scheiman, Corydon B. Dunham, David H. Marion, Harold E. Kohn, Robert Sack, John B. Summers, William Barnabas McHenry, David Otis Fuller, Jr., Richard M. Schmidt, Jr., Ian Volner, and J. Laurent Scharff.

Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Joel M. Gora, Charles C. Marson, and Joseph Remcho for the American Civil Liberties Union et al.; by Arthur B. Hanson for the American Newspaper Publishers Assn.; by William I. Harkaway for the National Press Club; by Lawrence Speiser for the Reporters Committee for Freedom of the Press Legal Defense and Research Fund; by Don H. Reuben and Lawrence Gunnels for the Tribune Co.; and by Joseph A. Califano, Jr., John G. Kester, Richard M. Cooper, Alan R. Finberg, Robert C. Lobdell, David R. Hardy, Dan Paul, Edgar A. Zingman, and Donald B. Holbrook for the Washington Post Co. et al.

Harold Mosher, Assistant Attorney General of Nebraska, argued the cause for respondent Stuart. With him on the brief was Paul L. Douglas, Attorney General. Milton R. Larson argued the cause for respondent State of Nebraska. With him on the brief was Erwin N. Griswold. Leonard P. Vyhnalek filed a brief for respondent Simants.


"While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint [of speech] remain high and the presumption against its use continues intact. Although it is unnecessary to establish a priority between First Amendment rights and the Sixth Amendment right to a fair trial under all circumstances, as the authors of the Bill of Rights themselves declined to do, the protection against prior restraint should have particular force as applied to reporting of criminal proceedings.

The heavy burden imposed as a condition to securing a prior restraint was not met in this case.

...To the extent that the order prohibited the reporting of evidence adduced at the open preliminary hearing held to determine whether the accused should be bound over for trial, it violated the settled principle that 'there is nothing that proscribes the press from reporting events that transpire in the courtroom,' and the portion of the order restraining publication of other facts 'strongly implicative' of the accused is too vague and too broad to survive the scrutiny given to restraints on First Amendment right."

The United States Supreme Court reversed the Supreme Court of Nebraska judgment.

Justice Vote: 9 Pro vs. 0 Con
  • Burger, W. Pro (Wrote majority opinion)
  • White, B. Pro (Wrote concurring opinion)
  • Powell, L. Pro (Wrote concurring opinion)
  • Brennan, W. Pro (Wrote concurring opinion)
  • Stevens, J. Pro (Wrote concurring opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined concurring opinion)
  • Marshall, T. Pro (Joined concurring opinion opinion)

    The ACLU, as amicus curiae, urged reversal of the judgment of the Supreme Court of Nebraska; the Supreme Court reversed in a 9-0 vote, giving the ACLU an apparent win.