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Law School Case Brief

Neb. Press Ass'n v. Stuart - 427 U.S. 539, 96 S. Ct. 2791 (1976)


Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time.


In anticipation of a trial for a multiple murder that had attracted widespread news coverage, respondent Nebraska state trial judge entered an order that restrained petitioner newspapers, broadcasters, journalists, news media associations, and national newswire services from reporting the existence or contents of a confession that defendant had made to law enforcement officers, the fact or nature of statements defendant had made to other persons, the contents of a note defendant had written the night of the crime, certain aspects of the medical testimony at the preliminary hearing, and the identity of the victims. According to the trial judge, there was a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial,because of the nature of the crimes charged in the complaint. Thereafter, petitioners asked the District Court to stay its order. At the same time, they applied to the Nebraska Supreme Court for a writ of mandamus, a stay, and an expedited appeal from the order. The Nebraska Supreme Court modified the District Court's order to accommodate the defendant's right to a fair trial and the petitioners' interest in reporting pre-trial events. The order, as modified, prohibited 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. Petitioners filed a petition for certiorari to the United States Supreme Court.


Did the respondent’s Order violate the constitutional guarantee of the freedom of the press?




The Court reversed the decision of the state courts, holding that the Order was invalid because the barriers to prior restraint were not passed. According to the Court, although the trial judge was justified in concluding that there would be intense pre-trial publicity and that it might impair the accused's right to a fair trial, the trial judge did not determine whether other measures, besides prior restraint, would have sufficed. In addition, prior restraint on publication was not a workable method of protecting the accused's right to a fair trial because the events took place in a community of 850 people. The Court averred that the lower court could not restrain an entire community.

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