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NEBRASKA PRESS ASSN. V. STUART, 427 U. S. 539 (1976)
U.S. Supreme Court
Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)
Nebraska Press Assn. v. Stuart
Argued April 19, 1976
Decided June 30, 1976
427 U.S. 539
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 newspapers, 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.
1. The case is not moot simply because the order has expired, since the controversy between the parties is "capable of repetition, yet evading review." Pp. 427 U. S. 546-547.
2. While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint 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. Pp. 427 U. S. 556-562.
3. The heavy burden imposed as a condition to securing a prior restraint was not met in this case. Pp. 427 U. S. 562-570.
(a) On the pretrial record, the trial judge was justified in concluding that there would be intense and pervasive pretrial publicity concerning the case, and he could also reasonably
conclude, based on common human experience, that publicity might impair the accused's right to a fair trial. His conclusion as to the impact of such publicity on prospective jurors was of necessity speculative, however, dealing as he was with factors unknown and unknowable. Pp. 427 U. S. 562-563.
(b) There is no finding that measures short of prior restraint on the press and speech would not have protected the accused's rights; the Nebraska Supreme Court no more than implied that alternative measures might not suffice, and the record lacks evidence that would support such a finding. Pp. 427 U. S. 563-565.
(c) It is not clear that prior restraint on publication would have effectively protected the accused's rights, in view of such practical problems as the limited territorial jurisdiction of the trial court issuing the restraining order, the difficulties inherent in predicting what information will in fact undermine the jurors' impartiality, the problem of drafting an order that will effectively keep prejudicial information from prospective jurors, and the fact that in this case the events occurred in a small community where rumors would travel swiftly by word of mouth. Pp. 427 U. S. 565-567.
(d) 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," Sheppard v. Maxwell, 384 U. S. 333, 384 U. S. 362-363, 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 rights. Pp. 427 U. S. 567-568.
194 Neb. 783, 236 N.W.2d 794, reversed.
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., post, p. 427 U. S. 570, and POWELL, J., post, p. 427 U. S. 571, filed concurring opinions. BRENNAN, J., filed an opinion concurring in the judgment, in which STEWART and MARSHALL, JJ., joined, post, p. 427 U. S. 572. STEVENS, J., filed an opinion concurring in the judgment, post, p. 427 U. S. 617.
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