Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)

Although decided over twenty-five years ago, one of the most important cases for resolving the conflict between free press and fair trial remains Nebraska Press Association v. Stuart.

A young man was arrested for the brutal killing of six members of one family in their home in Sutherland, Nebraska, a small town of about 850 people. News of the crime attracted widespread publicity, and the lower court issued an order prohibiting the press from reporting certain information about the defendant and the crime until the jury was impaneled.

In Nebraska Press Association v. Stuart, the Supreme Court considered whether it violated the First Amendment for a court to issue an injunction against the press to stop pretrial reporting. The Court unanimously struck down this restraint on the press. The majority noted that prior restraints are presumptively invalid under the First Amendment. To overcome this presumption, those seeking the restraint must prove (1) that the publicity generated in the absence of such an order would be so prejudicial that the defendant could not receive a fair trial, (2) that there are no alternative measures to mitigate the effect of the publicity, and (3) that the prior restraint would be effective in ensuring a fair trial. According to the majority, the restraining order here failed because none of these elements were satisfied.

The Nebraska Press standard has proven virtually impossible to satisfy. Questions remain, moreover, about the application of the test, and whether gag orders on trial participants, rather than the press, are a constitutionally acceptable way of reconciling the conflict between freedom of the press and the right to a fair trial.

MARCY STRAUSS