1. A Circuit Justice has jurisdiction to act upon a State's
highest court's decision that an apparently unconstitutional
restraint of the press imposed by a trial court's order should
remain in effect pending review thereof, the Circuit Justice having
deferred action on an application for a stay of such order pending
the State's highest court's prompt decision thereon, and a
reasonable time in which to review such restraint having
passed.
2. Reapplication by news media for stay of a state court order
restricting news coverage of alleged murders and criminal
proceedings in prosecution thereof, is granted as to the portions
of such order (a) incorporating the media's voluntary guidelines
for reporting such news, (b) prohibiting the reporting of the
details of the crimes, of the victims' identities, and of the
pathologist's testimony at the open preliminary hearing, and (c)
restricting the reporting of the limitations on publicity imposed
by the order, but only to the extent the publicity itself is now
permitted. Stay is not granted as to restraints on publication
prior to trial of certain facts that strongly implicate an accused,
such as a confession, and the stay granted here does not affect
those portions of the order governing the taking of photographs and
other media activity in the courthouse; nor does it bar the trial
judge from restricting what the parties and officers of the court
may say to any media representative.
MR. JUSTICE BLACKMUN, Circuit Justice.
An application for stay of the order dated October 27, 1975, of
the District Court of Lincoln County, Neb., resulted in my issuance
of an in-chambers opinion, as Circuit Justice, on November 13. In
that opinion, I indicated that the issue raised is one that centers
upon cherished First and Fourteenth Amendment values; that the
challenged state court order obviously imposes significant prior
restraints on media reporting; that it therefore
Page 423 U. S. 1328
came to me "
bearing a heavy presumption against its
constitutional validity,'" New York Times Co. v. United
States, 403 U. S. 713,
403 U. S. 714
(1971); that, if no action on the application to the Supreme Court
of Nebraska could be anticipated before December 1, there would be
a delay
"for a period so long that the very day-by-day duration of that
delay would constitute and aggravate a deprival of such
constitutional rights, if any, that the applicants possess and may
properly assert;"
that, however, it was highly desirable that the issue should be
decided in the first instance by the Supreme Court of Nebraska; and
that
"the pendency of the application before me should not be deemed
to stultify that court in the performance of its appropriate
constitutional duty."
I stated my expectation that the Supreme Court of Nebraska would
entertain, "forthwith and without delay," the application pending
before it, and would "promptly decide it in the full consciousness
that
time is of the essence.'" I refrained from either issuing
or finally denying a stay on the papers before me. That, however,
was without prejudice to the applicants to reapply to me should
prompt action not be forthcoming. The applicants have now renewed
their application for a stay.
One full week has elapsed since my in-chambers opinion was
filed. No action has been taken by the Supreme Court of Nebraska
during that week. The clerk of that court has stated, however, that
the applicants have been allowed to docket their original
application by way of mandamus to stay the order of the District
Court of Lincoln County, and that the matter is set for hearing
before the Supreme Court of Nebraska on November 25.
Whether the Nebraska court will reach a definitive decision on
November 25, or very shortly thereafter, I do not know. Obviously
at least 12 days will have elapsed, without action, since the
filing of my in-chambers
Page 423 U. S. 1329
opinion, and more than four weeks since the entry of the
District Court's restrictive order. I have concluded that this
exceeds tolerable limits. Accordingly, subject to further order of
this Court, and subject to such refining action as the Supreme
Court of Nebraska may ultimately take on the application pending
before it, I issue a partial stay.
A question is initially raised as to my power and jurisdiction
to grant a stay. As a single Justice, I clearly have the authority
to grant a stay of a state court's "final judgment or decree" that
is subject to review by this Court on writ of certiorari. 28 U.S.C.
ยงยง 2101(f) and 1257(3). Respondents to the application for a stay
have objected that there is no such "final judgment or decree" upon
which I may act. The issue is not without difficulty, for the
Supreme Court of Nebraska gives promise of reviewing the District
Court's decision, and in that sense the lower court's judgment is
not one of the State's highest court, nor is its decision the final
one in the matter. Where, however, a direct prior restraint is
imposed upon the reporting of news by the media, each passing day
may constitute a separate and cognizable infringement of the First
Amendment. The suppressed information grows older. Other events
crowd upon it. To this extent, any First Amendment infringement
that occurs with each passing day is irreparable. By deferring
action until November 25, and possibly later, the Supreme Court of
Nebraska has decided, and, so far as the intervening days are
concerned, has finally decided, that this restraint on the media
will persist. In this sense, delay itself is a final decision. I
need not now hold that, in any area outside that of prior restraint
on the press, such delay would warrant a stay or even be a
violation of federal rights. Yet neither can I accept that this
Court, or any individual Justice thereof, is
Page 423 U. S. 1330
powerless to act upon the failure of a State's highest court to
lift what appears to be, at least in part, an unconstitutional
restraint of the press. When a reasonable time in which to review
the restraint has passed, as here, we may properly regard the state
court as having finally decided that the restraint should remain in
effect during the period of delay. I therefore conclude that I have
jurisdiction to act upon that state court decision.
I shall not repeat the facts of the case. They were set forth in
my in-chambers opinion of November 13. Neither shall I pause again
to elaborate on this Court's acute sensitivity to the vital and
conflicting interests that are at stake here. There is no easy
accommodation of those interests, and it certainly is not a task
that one prefers to take up without the benefit of the
participation of all Members of the Court. Still, the likelihood of
irreparable injury to First Amendment interests requires me to act.
When such irreparable injury is threatened, and it appears that
there is a significant possibility that this Court would grant
plenary review and reverse, at least in part, the lower court's
decision, a stay may issue.
Times-Picayune Pub. Corp. v.
Schulingkamp, 419 U. S. 1301,
419 U. S.
1305 (1974). Taking this approach to the facts before
me, I grant the requested stay to the following extent:
1. The most troublesome aspect of the District Court's
restrictive order is its wholesale incorporation of the Nebraska
Bar-Press Guidelines for Disclosure and Reporting of Information
Relating to Imminent or Pending Criminal Litigation. Without
rehearsing the description of those Guidelines set forth in my
prior opinion, it is evident that they constitute a "voluntary
code" which was not intended to be mandatory. Indeed, the word
"guidelines" itself so indicates. They are merely suggestive and,
accordingly, are necessarily vague. To cite
Page 423 U. S. 1331
only one example, they state that the publication of an
accused's criminal record "should be considered very carefully" and
"should generally be avoided." These phrases do not provide the
substance of a permissible court order in the First Amendment area.
If a member of the press is to go to jail for reporting news in
violation of a court order, it is essential that he disobey a more
definite and precise command than one that he consider his act
"very carefully." Other parts of the incorporated Guidelines are
less vague and indefinite. I find them on the whole, however,
sufficiently riddled with vague and indefinite admonitions --
understandably so in view of the basic nature of "guidelines" --
that I have concluded that the best and momentary course is to stay
their mandatory and wholesale imposition in the present context.
The state courts, nonetheless, are free forthwith to reimpose
particular provisions included in the Guidelines so long as they
are deemed pertinent to the facts of this particular case and so
long as they are adequately specific and in keeping with the
remainder of this order. That portion of the restrictive order that
generally incorporates the Guidelines is hereby stayed.
2. No persuasive justification has been advanced for those parts
of the restrictive order that prohibit the reporting of the details
of the crimes, of the identities of the victims, or of the
testimony of the pathologist at the preliminary hearing that was
open to the public.
See Cox Broadcasting Corp. v. Cohn,
420 U. S. 469,
420 U. S.
487-497 (1975). These facts, in themselves, do not
implicate a particular putative defendant. To be sure, the
publication of the facts may disturb the community in which the
crimes took place and in which the accused, presumably, is to be
tried. And their public knowledge may serve to strengthen the
resolve of citizens, when so informed, who will be the accused's
prospective jurors,
Page 423 U. S. 1332
that someone should be convicted for the offenses. But until the
bare facts concerning the crimes are related to a particular
accused, it does not seem to me that their being reported in the
media irreparably infringes the accused's right to a fair trial of
the issue as to whether he was the one who committed the crimes.
There is no necessary implication of the person, who has been named
as the accused, in the facts suppressed by paragraphs 4 and 5 of
the District Court's restrictive order, and to that extent the
order is hereby stayed.
3. At the same time I cannot, and do not, at least on an
application for a stay and at this distance, impose a prohibition
upon the Nebraska courts from placing any restrictions at all upon
what the media may report prior to trial. Restraints of this kind
are not necessarily and in all cases invalid.
See Branzburg v.
Hayes, 408 U. S. 665,
408 U. S. 685
(1972);
Times-Picayune Pub. Corp. v. Schulingkamp, 419
U.S. at
419 U. S.
1307;
Newspapers, Inc. v. Blackwell, 421 U.S.
997 (1975). I am particularly conscious of the fact that the
District Court's order applies only to the period prior to the
impaneling, and presumably the sequestration, of a jury at the
forthcoming trial. Most of our cases protecting the press from
restrictions on what they may report concern the trial phase of the
criminal prosecution, a time when the jurors and witnesses can be
otherwise shielded from prejudicial publicity, and also a time when
both sides are being heard.
See, e.g., Craig v. Harney,
331 U. S. 367
(1947);
Pennekamp v. Florida, 328 U.
S. 331 (1946);
Bridges v. California,
314 U. S. 252
(1941). Restrictions limited to pretrial publicity may delay media
coverage -- and, as I have said, delay itself may be impermissible
-- but at least they do no more than that.
I therefore conclude that certain facts that strongly implicate
an accused may be restrained from publication
Page 423 U. S. 1333
by the media prior to his trial. A confession or statement
against interest is the paradigm.
See Rideau v. Louisiana,
373 U. S. 723
(1963);
Irving v. Dowd, 366 U. S. 717
(1961). A prospective juror who has read or heard of the confession
or statement repeatedly in the news may well be unable to form an
independent judgment as to guilt or innocence from the evidence
adduced at trial. In the present case, there may be other facts
that are strongly implicative of the accused, as, for example,
those associated with the circumstances of his arrest. There also
may be facts that are not necessarily implicative, but that are
highly prejudicial, as, for example, facts associated with the
accused's criminal record, if he has one. Certain statements as to
the accused's guilt by those associated with the prosecution might
also be prejudicial. There is no litmus paper test available. Yet
some accommodation of the conflicting interests must be reached.
The governing principle is that the press, in general, is to be
free and unrestrained, and that the facts are presumed to be in the
public domain. The accused, and the prosecution if it joins him,
bears the burden of showing that publicizing particular facts will
irreparably impair the ability of those exposed to them to reach an
independent and impartial judgment as to guilt. Of course, if a
change of venue will not allow the selection of a jury that will
have been beyond the reach of the expected publicity, that also is
a factor.
4. Paragraph 6 of the restrictive order also prohibits
disclosure of the "exact nature of the limitations" that it imposes
on publicity. Since some of those limitations are hereby stayed,
the restrictions on the reporting of those limitations are stayed
to the same extent. Inasmuch as there is no point in prohibiting
the reporting of a confession if it may be reported that one has
been made but may not be spoken of, the provision in paragraph
Page 423 U. S. 1334
6 that the restriction on reporting confessions may itself not
be disclosed is not stayed.
5. To the extent, if any, that the District Court's order
prohibits the reporting of the pending application to the Supreme
Court of Nebraska, and to the extent, if any, that the order
prohibits the reporting of the facts of the filing of my
in-chambers opinion of November 13, or of this opinion (other than
those parts of the opinions that include facts properly
suppressed), the restrictive order is also stayed.
6. Nothing herein affects those portions of the restrictive
order governing the taking of photographs and other media activity
in the Lincoln County courthouse. Neither is it to be deemed as
barring what the District Judge may impose by way of restriction on
what the parties and officers of the court may say to any
representative of the media.
The District Court and the Supreme Court of Nebraska obviously
are closer than I am to the facts of the crimes, to the pressures
that attend them, and to the consequences of community opinion that
have arisen since the commission of the offenses. The Supreme Court
of Nebraska, accordingly, is in a better position to evaluate the
details of the restrictive order. It may well conclude that other
portions of that order are also to be stayed or vacated. I have
touched only upon what appear to me to be the most obvious features
that require resolution immediately and without one moment's
further delay.