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.
Held:
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
Page 427 U. S. 540
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.
Page 427 U. S. 541
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The respondent State District Judge entered an order restraining
the petitioners from publishing or broadcasting accounts of
confessions or admissions made by the accused or facts "strongly
implicative" of the accused in a widely reported murder of six
persons. We granted certiorari to decide whether the entry of such
an order on the showing made before the state court violated the
constitutional guarantee of freedom of the press.
Page 427 U. S. 542
I
On the evening of October 18, 1975, local police found the six
members of the Henry Kellie family murdered in their home in
Sutherland, Neb. a town of about 850 people. Police released the
description of a suspect, Erwin Charles Simants, to the reporters
who had hastened to the scene of the crime. Simants was arrested
and arraigned in Lincoln County Court the following morning, ending
a tense night for this small rural community.
The crime immediately attracted widespread news coverage, by
local, regional, and national newspapers, radio and television
stations. Three days after the crime, the County Attorney and
Simants' attorney joined in asking the County Court to enter a
restrictive order relating to "matters that may or may not be
publicly reported or disclosed to the public," because of the "mass
coverage by news media" and the
"reasonable likelihood of prejudicial news which would make
difficult, if not impossible, the impaneling of an impartial jury
and tend to prevent a fair trial."
The County Court heard oral argument, but took no evidence; no
attorney for members of the press appeared at this stage. The
County Court granted the prosecutor's motion for a restrictive
order and entered it the next day, October 22. The order prohibited
everyone in attendance from
"releas[ing] or authoriz[ing] the release for public
dissemination in any form or manner whatsoever any testimony given
or evidence adduced;"
the order also required members of the press to observe the
Nebraska Bar-Press Guidelines. [
Footnote 1]
Page 427 U. S. 543
Simants' preliminary hearing was held the same day, open to the
public but subject to the order. The County Court bound over the
defendant for trial to the State District Court. The charges, as
amended to reflect the autopsy findings, were that Simants had
committed the murders in the course of a sexual assault.
Petitioners -- several press and broadcast associations,
publishers, and individual reporters -- moved on October 23 for
leave to intervene in the District Court, asking that the
restrictive order imposed by the County Court be vacated. The
District Court conducted a hearing, at which the County Judge
testified and newspaper articles about the Simants case were
admitted in evidence. The District Judge granted petitioners'
motion to intervene and, on October 27, entered his own restrictive
order. The judge found, "because of the nature of the crimes
charged in the complaint that there, is a clear and present danger
that pretrial publicity could impinge upon the defendant's right to
a fair trial." The order applied only until the jury was impaneled,
and specifically prohibited petitioners from reporting five
subjects: (1) the existence or contents of a confession Simants had
made to law enforcement officers, which had been introduced in open
court at arraignment; (2) the fact or nature of statements Simants
had made to other persons; (3) the contents of a note he had
written the night of the crime; (4) certain aspects of the medical
testimony at the preliminary hearing; and (5) the identity of
the
Page 427 U. S. 544
victims of the alleged sexual assault and the nature of the
assault. It also prohibited reporting the exact nature of the
restrictive order itself. Like the County Court's order, this order
incorporated the Nebraska Bar-Press Guidelines. Finally, the order
set out a plan for attendance, seating, and courthouse traffic
control during the trial.
Four days later, on October 31, 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 State of Nebraska and the
defendant Simants intervened in these actions. The Nebraska Supreme
Court heard oral argument on November 25, and issued its per curiam
opinion December 1.
State v. Simants, 194 Neb. 783,
236 N.W.2d
794 (1975). [
Footnote
2]
Page 427 U. S. 545
The Nebraska Supreme Court balanced the "heavy presumption
against . . . constitutional validity" that an order restraining
publication bears,
New York Times Co. v. United States,
403 U. S. 713,
403 U. S. 714
(1971), against the importance of the defendant's right to trial by
an impartial jury. Both society and the individual defendant, the
court held, had a vital interest in assuring that Simants be tried
by an impartial jury. Because of the publicity surrounding the
crime, the court determined that this right was in jeopardy. The
court noted that Nebraska statutes required the District Court to
try Simants within six months of his arrest, and that a change of
venue could move the trial only to adjoining counties, which had
been subject to essentially the same publicity as Lincoln County.
The Nebraska Supreme Court held that "[u]nless the absolutist
position of the relators was constitutionally correct, it would
appear that the District Court acted properly." 194 Neb. at 797,
236 N.W.2d at 803.
The Nebraska Supreme Court rejected that "absolutist position,"
but modified the District Court's order to accommodate the
defendant's right to a fair trial and the petitioners' interest in
reporting pretrial events. The order as modified prohibited
reporting of only three matters: (a) the existence and nature of
any confessions or admissions made by the defendant to law
enforcement officers, (b) any confessions or admissions made to any
third parties, except members of the press, and (c) other facts
"strongly implicative" of the accused. The Nebraska Supreme Court
did not rely on the Nebraska Bar Press Guidelines.
See
n 1,
supra. After
construing Nebraska law to permit closure in certain circumstances,
the court remanded the case to the District Judge for
reconsideration of the issue whether pretrial hearings should be
closed to the press and public.
Page 427 U. S. 546
We granted certiorari to address the important issues raised by
the District Court order as modified by the Nebraska Supreme Court,
but we denied the motion to expedite review or to stay entirely the
order of the State District Court pending Simants' trial.
423 U. S. 1027
(1975). We are informed by the parties that, since we granted
certiorari, Simants has been convicted of murder and sentenced to
death. His appeal is pending in the Nebraska Supreme Court.
II
The order at issue in this case expired by its own terms when
the jury was impaneled on January 7, 1976. There were no restraints
on publication once the jury was selected, and there are now no
restrictions on what may be spoken or written about the Simants
case. Intervenor Simants argues that for this reason the case is
moot.
Our jurisdiction under Art. III, § 2, of the Constitution
extends only to actual cases and controversies.
Indianapolis
School Comm'rs v. Jacobs, 420 U. S. 128
(1975);
Sosna v. Iowa, 419 U. S. 393,
419 U. S.
397-403 (1975). The Court has recognized, however, that
jurisdiction is not necessarily defeated simply because the order
attacked has expired, if the underlying dispute between the parties
is one "capable of repetition, yet evading review."
Southern
Pacific Terminal Co. v. ICC, 219 U. S. 498,
219 U. S. 515
(1911).
The controversy between the parties to this case is "capable of
repetition" in two senses. First, if Simants' conviction is
reversed by the Nebraska Supreme Court and a new trial ordered, the
District Court may enter another restrictive order to prevent a
resurgence of prejudicial publicity before Simants' retrial.
Second, the State of Nebraska is a party to this case; the Nebraska
Supreme Court's decision authorizes state prosecutors to
Page 427 U. S. 547
seek restrictive orders in appropriate cases. The dispute
between the State and the petitioners who cover events throughout
the State is thus "capable of repetition." Yet, if we decline to
address the issues in this case on grounds of mootness, the dispute
will evade review, or at least considered plenary review in this
Court, since these orders are by nature short-lived.
See, e.g.,
Weinstein v. Bradford, 423 U. S. 147
(1975);
Sosna v. Iowa, supra; Roe v. Wade, 410 U.
S. 113,
410 U. S. 125
(1973);
Moore v. Ogilvie, 394 U.
S. 814,
394 U. S. 816
(1969);
Carroll v. Princess Anne, 393 U.
S. 175,
393 U. S.
178-179 (1968). We therefore conclude that this case is
not moot, and proceed to the merits.
III
The problems presented by this case are almost as old as the
Republic. Neither in the Constitution nor in contemporaneous
writings do we find that the conflict between these two important
rights was anticipated, yet it is inconceivable that the authors of
the Constitution were unaware of the potential conflicts between
the right to an unbiased jury and the guarantee of freedom of the
press. The unusually able lawyers who helped write the Constitution
and later drafted the Bill of Rights were familiar with the
historic episode in which John Adams defended British soldiers
charged with homicide for firing into a crowd of Boston
demonstrators; they were intimately familiar with the clash of the
adversary system and the part that passions of the populace
sometimes play in influencing potential jurors. They did not
address themselves directly to the situation presented by this
case; their chief concern was the need for freedom of expression in
the political arena and the dialogue in ideas. But they recognized
that there were risks to private rights from an unfettered press.
Jefferson, for example,
Page 427 U. S. 548
writing from Paris in 1786 concerning press attacks on John Jay,
stated:
"In truth, it is afflicting that a man who has past his life in
serving the public . . . should yet be liable to have his peace of
mind so much disturbed by any individual who shall think proper to
arraign him in a newspaper. It is, however, an evil for which there
is no remedy. Our liberty depends on the freedom of the press, and
that cannot be limited without being lost. . . ."
9 Papers of Thomas Jefferson 239 (J. Boyd ed.1954).
See
also F. Mott, Jefferson and the Press 21, 38-46 (1943).
The trial of Aaron Burr in 1807 presented Mr. Chief Justice
Marshall, presiding as a trial judge, with acute problems in
selecting an unbiased jury. Few people in the area of Virginia from
which jurors were drawn had not formed some opinions concerning Mr.
Burr or the case, from newspaper accounts and heightened discussion
both private and public. The Chief Justice conducted a searching
voir dire of the two panels eventually called, and
rendered a substantial opinion on the purposes of
voir
dire and the standards to be applied.
See 1 Causes
Celebres, Trial of Aaron Burr for Treason 40427, 473481 (1879);
United States v. Burr, 25 F. Cas. 49 (No. 14,692g) (CC Va.
1807). Burr was acquitted, so there was no occasion for appellate
review to examine the problem of prejudicial pretrial publicity.
Mr. Chief Justice Marshall's careful
voir dire inquiry
into the matter of possible bias makes clear that the problem is
not a new one.
The speed of communication and the pervasiveness of the modern
news media have exacerbated these problems, however, as numerous
appeals demonstrate. The trial of Bruno Hauptmann in a small New
Jersey community for
Page 427 U. S. 549
the abduction and murder of the Charles Lindberghs' infant child
probably was the most widely covered trial up to that time, and the
nature of the coverage produced widespread public reaction.
Criticism was directed at the "carnival" atmosphere that pervaded
the community and the courtroom itself. Responsible leaders of
press and the legal profession -- including other judges -- pointed
out that much of this sorry performance could have been controlled
by a vigilant trial judge and by other public officers subject to
the control of the court.
See generally Hudson, Freedom of
the Press Versus Fair Trial: The Remedy Lies With the Courts, 1
Val.U.L.Rev. 8, 114 (1966); Hallam, Some Object Lessons on
Publicity in Criminal Trials, 24 Minn.L.Rev. 453 (1940); Lippmann,
The Lindbergh Case in Its Relation to American Newspapers, in
Problems of Journalism 154-156 (1936).
The excesses of press and radio and lack of responsibility of
those in authority in the
Hauptmann case and others of
that era led to efforts to develop voluntary guidelines for courts,
lawyers, press, and broadcasters.
See generally J. Lofton,
Justice and the Press 117-130 (1966). [
Footnote 3] The effort was renewed in 1965, when the
American Bar Association embarked on a project to develop standards
for all aspects of criminal justice, including guidelines to
accommodate the right to a fair trial and the rights of a free
press.
See Powell, The Right to a
Page 427 U. S. 550
Fair Trial, 51 A.B.A.J. 534 (1965). The resulting standards,
approved by the Association in 1968, received support from most of
the legal profession. American Bar Association Project on Standards
for Criminal Justice, Fair Trial and Free Press (Approved Draft
1968). Other groups have undertaken similar studies.
See
Report of the Judicial Conference Committee on the Operation of the
Jury System, "Free Press-Fair Trial" Issue, 45 F.R.D. 391 (1968);
Special Committee on Radio, Television, and the Administration of
Justice of the Association of the Bar of the City of New York,
Freedom of the Press and Fair Trial (1967). In the wake of these
efforts, the cooperation between bar associations and members of
the press led to the adoption of voluntary guidelines like
Nebraska's.
See n 1,
supra; American Bar Association Legal Advisory Committee
on Fair Trial and Free Press, The Rights of Fair Trial and Free
Press 1-6 (1969).
In practice, of course, even the most ideal guidelines are
subjected to powerful strains when a case such as Simants' arises,
with reporters from many parts of the country on the scene.
Reporters from distant places are unlikely to consider themselves
bound by local standards. They report to editors outside the area
covered by the guidelines, and their editors are likely to be
guided only by their own standards. To contemplate how a state
court can control acts of a newspaper or broadcaster outside its
jurisdiction, even though the newspapers and broadcasts reach the
very community from which jurors are to be selected, suggests
something of the practical difficulties of managing such
guidelines.
The problems presented in this case have a substantial history
outside the reported decisions of courts, in the efforts of many
responsible people to accommodate the competing interests. We
cannot resolve all of them, for
Page 427 U. S. 551
it is not the function of this Court to write a code. We look
instead to this particular case and the legal context in which it
arises.
IV
The Sixth Amendment in terms guarantees "trial, by an impartial
jury . . ." in federal criminal prosecutions. Because "trial by
jury in criminal cases is fundamental to the American scheme of
justice," the Due Process Clause of the Fourteenth Amendment
guarantees the same right in state criminal prosecutions.
Duncan v. Louisiana, 391 U. S. 145,
391 U. S. 149
(1968).
"In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial,
'indifferent' jurors. . . . 'A fair trial in a fair tribunal is a
basic requirement of due process.'
In re Murchison,
349 U. S.
133,
349 U. S. 136. In the
ultimate analysis, only the jury can strip a man of his liberty or
his life. In the language of Lord Coke, a juror must be as
'indifferent as he stands unsworne.' Co.Litt. 155b. His verdict
must be based upon the evidence developed at the trial."
Irvin v. Dowd, 366 U. S. 717,
366 U. S. 722
(1961).
In the overwhelming majority of criminal trials, pretrial
publicity presents few unmanageable threats to this important
right. But when the case is a "sensational" one, tensions develop
between the right of the accused to trial by an impartial jury and
the rights guaranteed others by the First Amendment. The relevant
decisions of this Court, even if not dispositive, are instructive
by way of background.
In
Irvin v. Dowd, supra, for example, the defendant was
convicted of murder following intensive and hostile news coverage.
The trial judge had granted a defense motion for a change of venue,
but only to an
Page 427 U. S. 552
adjacent county, which had been exposed to essentially the same
news coverage. At trial, 430 persons were called for jury service;
268 were excused because they had fixed opinions as to guilt. Eight
of the 12 who served as jurors thought the defendant guilty, but
said they could nevertheless render an impartial verdict. On
review, the Court vacated the conviction and death sentence and
remanded to allow a new trial for, "[w]ith his life at stake, it is
not requiring too much that petitioner be tried in an atmosphere
undisturbed by so huge a wave of public passion. . . ." 366 U.S. at
366 U. S.
728.
Similarly, in
Rideau v. Louisiana, 373 U.
S. 723 (1963), the Court reversed the conviction of a
defendant whose staged, highly emotional confession had been filmed
with the cooperation of local police and later broadcast on
television for three days while he was awaiting trial, saying
"[a]ny subsequent court proceedings in a community so pervasively
exposed to such a spectacle could be but a hollow formality."
Id. at
373 U. S. 726.
And in
Estes v. Texas, 381 U. S. 532
(1965), the Court held that the defendant had not been afforded due
process where the volume of trial publicity, the judge's failure to
control the proceedings, and the telecast of a hearing and of the
trial itself "inherently prevented a sober search for the truth."
Id. at
381 U. S. 551.
See also Marshall v. United States, 360 U.
S. 310 (1959)
In
Sheppard v. Maxwell, 384 U.
S. 333 (1966), the Court focused sharply on the impact
of pretrial publicity and a trial court's duty to protect the
defendant's constitutional right to a fair trial. With only Mr.
Justice Black dissenting, and he without opinion, the Court ordered
a new trial for the petitioner, even though the first trial had
occurred 12 years before. Beyond doubt, the press had shown no
responsible concern for the constitutional guarantee of a fair
trial; the community
Page 427 U. S. 553
from which the jury was drawn had been inundated by publicity
hostile to the defendant. But the trial judge
"did not fulfill his duty to protect [the defendant] from the
inherently prejudicial publicity which saturated the community and
to control disruptive influences in the courtroom."
Id. at
384 U. S. 363.
The Court noted that "unfair and prejudicial news comment on
pending trials has become increasingly prevalent,"
id. at
384 U. S. 362,
and issued a strong warning:
"Due process requires that the accused receive a trial by an
impartial jury free from outside influences. Given the
pervasiveness of modern communications and the difficulty of
effacing prejudicial publicity from the minds of the jurors,
the trial courts must take strong measures to ensure that the
balance is never weighed against the accused. . . . Of course,
there is nothing that proscribes the press from reporting events
that transpire in the courtroom. But where there is a reasonable
likelihood that prejudicial news prior to trial will prevent a fair
trial, the judge should
continue the case until the threat
abates,
or transfer it to another county not so permeated
with publicity. In addition,
sequestration of the jury was
something the judge should have raised
sua sponte with
counsel. If publicity during the proceedings threatens the fairness
of the trial, a new trial should be ordered. But we must remember
that reversals are but palliatives; the cure lies in those remedial
measures that will prevent the prejudice at its inception. The
courts must take such steps by rule and regulation that will
protect their processes from prejudicial outside interferences.
Neither prosecutors, counsel for defense, the accused,
witnesses, court staff nor enforcement officers coming under the
jurisdiction of the
Page 427 U. S. 554
court should be permitted to frustrate its function.
Collaboration between counsel and the press as to information
affecting the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of disciplinary
measures."
Id. at
384 U. S.
362-363 (emphasis added). Because the trial court had
failed to use even minimal efforts to insulate the trial and the
jurors from the "deluge of publicity,"
id. at
384 U. S. 357,
the Court vacated the judgment of conviction and a new trial
followed, in which the accused was acquitted.
Cases such as these are relatively rare, and we have held in
other cases that trials have been fair in spite of widespread
publicity. In
Stroble v. California, 343 U.
S. 181 (1952), for example, the Court affirmed a
conviction and death sentence challenged on the ground that
pretrial news accounts, including the prosecutor's release of the
defendant's recorded confession, were allegedly so inflammatory as
to amount to a denial of due process. The Court disapproved of the
prosecutor's conduct, but noted that the publicity had receded some
six weeks before trial, that the defendant had not moved for a
change of venue, and that the confession had been found voluntary
and admitted in evidence at trial. The Court also noted the
thorough examination of jurors on
voir dire and the
careful review of the facts by the state courts, and held that
petitioner had failed to demonstrate a denial of due process.
See also Murphy v. Florida, 421 U.
S. 794 (1975);
Beck v. Washington, 369 U.
S. 541 (1962).
Taken together, these cases demonstrate that pretrial publicity
even pervasive, adverse publicity -- does not inevitably lead to an
unfair trial. The capacity of the jury eventually impaneled to
decide the case fairly is influenced by the tone and extent of the
publicity,
Page 427 U. S. 555
which is in part, and often in large part, shaped by what
attorneys, police, and other officials do to precipitate news
coverage. The trial judge has a major responsibility. What the
judge says about a case, in or out of the courtroom, is likely to
appear in newspapers and broadcasts. More important, the measures a
judge takes or fails to take to mitigate the effects of pretrial
publicity -- the measures described in
Sheppard -- may
well determine whether the defendant receives a trial consistent
with the requirements of due process. That this responsibility has
not always been properly discharged is apparent from the decisions
just reviewed.
The costs of failure to afford a fair trial are high. In the
most extreme cases, like
Sheppard and
Estes, the
risk of injustice was avoided when the convictions were reversed.
But a reversal means that justice has been delayed for both the
defendant and the State; in some cases, because of lapse of time
retrial is impossible or further prosecution is gravely
handicapped. Moreover, in borderline cases in which the conviction
is not reversed, there is some possibility of an injustice
unredressed. The "strong measures" outlined in
Sheppard v.
Maxwell are means by which a trial judge can try to avoid
exacting these costs from society or from the accused.
The state trial judge in the case before us acted responsibly,
out of a legitimate concern, in an effort to protect the
defendant's right to a fair trial. [
Footnote 4] What we must decide is not simply whether the
Nebraska courts erred
Page 427 U. S. 556
in seeing the possibility of real danger to the defendant's
rights, but whether in the circumstances of this case the means
employed were foreclosed by another provision of the
Constitution.
V
The First Amendment provides that "Congress shall make no law .
. . abridging the freedom . . . of the press," and it is
"no longer open to doubt that the liberty of the press, and of
speech, is within the liberty safeguarded by the due process clause
of the Fourteenth Amendment from invasion by state action."
Near v. Minnesota ex rel. Olson, 283 U.
S. 697,
283 U. S. 707
(1931).
See also Grosjean v. American Press Co.,
297 U. S. 233,
297 U. S. 244
(1936). The Court has interpreted these guarantees to afford
special protection against orders that prohibit the publication or
broadcast of particular information or commentary -- orders that
impose a "previous" or "prior" restraint on speech. None of our
decided cases on prior restraint involved restrictive orders
entered to protect a defendant's right to a fair and impartial
jury, but the opinions on prior restraint have a common thread
relevant to this case.
In
Near v. Minnesota ex rel. Olson, supra, the Court
held invalid a Minnesota statute providing for the abatement as a
public nuisance of any "malicious, scandalous and defamatory
newspaper, magazine or other periodical." Near had published an
occasional weekly newspaper described by the County Attorney's
complaint as "largely devoted to malicious, scandalous and
defamatory articles" concerning political and other public figures.
283 U.S. at
283 U. S. 703.
Publication was enjoined pursuant to the statute. Excerpts from
Near's paper, set out in the dissenting opinion of Mr. Justice
Butler, show beyond question that one of its principal
characteristics was blatant anti-Semitism.
See id. at
283 U. S. 723,
283 U. S.
724-727, n. 1.
Page 427 U. S. 557
Mr. Chief Justice Hughes, writing for the Court, noted that
freedom of the press is not an absolute right, and the State may
punish its abuses. He observed that the statute was "not aimed at
the redress of individual or private wrongs."
Id. at
283 U. S. 708,
283 U. S. 709.
He then focused on the statute:
"[T]he operation and effect of the statute in substance is that
public authorities may bring the owner or publisher of a newspaper
or periodical before a judge upon a charge of conducting a business
of publishing scandalous and defamatory matter . . . and unless the
owner or publisher is able . . . to satisfy the judge that the
[matter is] true and . . . published with good motives . . . his
newspaper or periodical is suppressed. . . . This is of the essence
of censorship."
Id. at
283 U. S. 713.
The Court relied on
Patterson v. Colorado ex rel. Attorney
General, 205 U. S. 454,
205 U. S. 462
(1907):
"[T]he main purpose of [the First Amendment] is 'to prevent all
such
previous restraints upon publications as had been
practiced by other governments.' [
Footnote 5]"
The principles enunciated in
Near were so universally
accepted that the precise issue did not come before us again until
Organization for a Better Austin v. Keefe,
Page 427 U. S. 558
402 U. S. 415
(1971). There the state courts had enjoined the petitioners from
picketing or passing out literature of any kind in a specified
area. Noting the similarity to
Near v. Minnesota, a
unanimous Court held:
"Here, as in that case, the injunction operates not to redress
alleged private wrongs, but to suppress, on the basis of previous
publications, distribution of literature 'of any kind' in a city of
18,000."
"
* * * *"
"Any prior restraint on expression comes to this Court with a
'heavy presumption' against its constitutional validity.
Carroll v. Princess Anne, 393 U. S.
175,
393 U. S. 181 (1968);
Bantam Books, Inc. v. Sullivan, 372 U. S.
58,
372 U. S. 70 (1963).
Respondent thus carries a heavy burden of showing justification for
the imposition of such a restraint. He has not met that burden. . .
. Designating the conduct as an invasion of privacy, the apparent
basis for the injunction here, is not sufficient to support an
injunction against peaceful distribution of informational
literature of the nature revealed by this record."
402 U.S. at
402 U. S.
418-420.
More recently in
New York Times Co. v. United States,
403 U. S. 713
(1971), the Government sought to enjoin the publication of excerpts
from a massive, classified study of this Nation's involvement in
the Vietnam conflict, going back to the end of the Second World
War. The dispositive opinion of the Court simply concluded that the
Government had not met its heavy burden of showing justification
for the prior restraint. Each of the six concurring Justices and
the three dissenting Justices expressed his views separately,
but
"every member of the Court, tacitly or explicitly, accepted the
Near and
Keefe condemnation of prior restraint as
presumptively unconstitutional."
Pittsburgh Press Co. v. Human
Rel.
Page 427 U. S. 559
Comm'n, 413 U. S. 376,
413 U. S. 396
(1973) (BURGER, C.J., dissenting). The Court's conclusion in
New York Times suggests that the burden on the Government
is not reduced by the temporary nature of a restraint; in that case
the Government asked for a temporary restraint solely to permit it
to study and assess the impact on national security of the lengthy
documents at issue.
The thread running through all these cases is that 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.
[
Footnote 6]
The damage can be particularly great when the prior restraint
falls upon the communication of news and commentary on current
events. Truthful reports of public judicial proceedings have been
afforded special protection against subsequent punishment.
See
Cox Broadcasting Corp v. Cohn, 420 U.
S. 469,
420 U. S.
492-493(1975);
see also, Craig v. Harney,
331 U. S. 367,
331 U. S. 374
(1947). For the same reasons the protection against prior restraint
should have particular force as applied to reporting of criminal
proceedings, whether the crime in question is a single isolated act
or a pattern of criminal conduct.
"A responsible press has always been regarded as
Page 427 U. S. 560
the handmaiden of effective judicial administration, especially
in the criminal field. Its function in this regard is documented by
an impressive record of service over several centuries. The press
does not simply publish information about trials, but guards
against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny
and criticism."
Sheppard v. Maxwell, 384 U.S. at
384 U. S. 350.
The extraordinary protections afforded by the First Amendment carry
with them something in the nature of a fiduciary duty to exercise
the protected rights responsibly -- a duty widely acknowledged but
not always observed by editors and publishers. It is not asking too
much to suggest that those who exercise First Amendment rights in
newspapers or broadcasting enterprises direct some effort to
protect the rights of an accused to a fair trial by unbiased
jurors.
Of course, the order at issue like the order requested in
New York Times -- does not prohibit, but only postpones,
publication. Some news can be delayed, and most commentary can even
more readily be delayed without serious injury, and there often is
a self-imposed delay when responsible editors call for verification
of information. But such delays are normally slight, and they are
self-imposed. Delays imposed by governmental authority are a
different matter.
"We have learned, and continue to learn, from what we view as
the unhappy experiences of other nations where government has been
allowed to meddle in the internal editorial affairs of newspapers.
Regardless of how beneficent-sounding the purposes of controlling
the press might be, we . . . remain intensely skeptical about those
measures that would allow government to insinuate itself into the
editorial
Page 427 U. S. 561
rooms of. this Nation's press."
Miami Herald Publishing Co. v. Tornillo, 418 U.
S. 241,
418 U. S. 259
(1974) (WHITE, J., concurring).
See also Columbia Broadcasting
v. Democratic Comm., 412 U. S. 94
(1973). As a practical matter, moreover, the element of time is not
unimportant if press coverage is to fulfill its traditional
function of bringing news to the public promptly.
The authors of the Bill of Rights did not undertake to assign
priorities as between First Amendment and Sixth Amendment rights,
ranking one as superior to the other. In this case, the petitioners
would have us declare the right of an accused subordinate to their
right to publish in all circumstances. But if the authors of these
guarantees, fully aware of the potential conflicts between them,
were unwilling or unable to resolve the issue by assigning to one
priority over the other, it is not for us to rewrite the
Constitution by undertaking what they declined to do. It is
unnecessary, after nearly two centuries, to establish a priority
applicable in all circumstances. Yet it is nonetheless clear that
the barriers to prior restraint remain high unless we are to
abandon what the Court has said for nearly a quarter of our
national existence and implied throughout all of it. The history of
even wartime suspension of categorical guarantees, such as habeas
corpus or the right to trial by civilian courts,
See Ex parte
Milligan, 4 Wall. 2 (1867), cautions against
suspending explicit guarantees.
The Nebraska courts in this case enjoined the publication of
certain kinds of information about the Simants case. There are, as
we suggested earlier, marked differences in setting and purpose
between the order entered here and the orders in
Near,
Keefe, and
New York Times, but as to the underlying
issue the right of the press to be free from prior restraints on
publication -- those
Page 427 U. S. 562
cases form the backdrop against which we must decide this
case.
VI
We turn now to the record in this case to determine whether, as
Learned Hand put it, "the gravity of the
evil,' discounted by
its improbability, justifies such invasion of free speech as is
necessary to avoid the danger." United States v. Dennis,
183 F.2d 201, 212 (CA2 1950), aff'd, 341 U.
S. 494 (1951); see also L. Hand, The Bill of
Rights 58-61 (1958). To do so, we must examine the evidence before
the trial judge when the order was entered to determine (a) the
nature and extent of pretrial news coverage; (b) whether other
measures would be likely to mitigate the effects of unrestrained
pretrial publicity; and (c) how effectively a restraining order
would operate to prevent the threatened danger. The precise terms
of the restraining order are also important. We must then consider
whether the record supports the entry of a prior restraint on
publication, one of the most extraordinary remedies known to our
jurisprudence.
A
In assessing the probable extent of publicity, the trial judge
had before him newspapers demonstrating that the crime had already
drawn intensive news coverage, and the testimony of the County
Judge, who had entered the initial restraining order based on the
local and national attention the case had attracted. The District
Judge was required to assess the probable publicity that would be
given these shocking crimes prior to the time a jury was selected
and sequestered. He then had to examine the probable nature of the
publicity and determine how it would affect prospective jurors.
Our review of the pretrial record persuades us that the trial
judge was justified in concluding that there would
Page 427 U. S. 563
be intense and pervasive pretrial publicity concerning this
case. He could also reasonably conclude, based on common human
experience, that publicity might impair the defendant's right to a
fair trial. He did not purport to say more, for he found only "a
clear and present danger that pretrial publicity
could
impinge upon the defendant's right to a fair trial." (Emphasis
added.) His conclusion as to the impact of such publicity on
prospective jurors was, of necessity, speculative, dealing as he
was with factors unknown and unknowable.
B
We find little in the record that goes to another aspect of our
task, determining whether measures short of an order restraining
all publication would have insured the defendant a fair trial.
Although the entry of the order might be read as a judicial
determination that other measures would not suffice, the trial
court made no express findings to that effect; the Nebraska Supreme
Court referred to the issue only by implication.
See 194
Neb. at 797-798, 236 N.W.2d at 803.
Most of the alternatives to prior restraint of publication in
these circumstances were discussed with obvious approval in
Sheppard v. Maxwell, 384 U.S. at
384 U. S.
357-362: (a) change of trial venue to a place less
exposed to the intense publicity that seemed imminent in Lincoln
County; [
Footnote 7] (b)
postponement of the trial to allow
Page 427 U. S. 564
public attention to subside; (c) searching questioning of
prospective jurors, as Mr. Chief Justice Marshall used in the
Burr case, to screen out those with fixed opinions as to
guilt or innocence; (d) the use of emphatic and clear instructions
on the sworn duty of each juror to decide the issues only on
evidence presented in open court. Sequestration of jurors is, of
course, always available. Although that measure insulates jurors
only after they are sworn, it also enhances the likelihood of
dissipating the impact of pretrial publicity and emphasizes the
elements of the jurors' oaths.
This Court has outlined other measures short of prior restraints
on publication tending to blunt the impact of pretrial publicity.
See Sheppard v. Maxwell, supra at
384 U. S.
361-362. Professional studies have filled out these
suggestions, recommending that trial courts in appropriate cases
limit what the contending lawyers, the police, and witnesses may
say to anyone.
See American Bar Association Project on
Standards for Criminal Justice, Fair Trial and Free Press 2-15
(App.Draft 168). [
Footnote
8]
Page 427 U. S. 565
We have noted earlier that pretrial publicity, even if pervasive
and concentrated, cannot be regarded as leading automatically and
in every kind of criminal case to an unfair trial. The decided
cases
"cannot be made to stand for the proposition that juror exposure
to information about a state defendant's prior convictions or to
news accounts of the crime with which he is charged alone
presumptively deprives the defendant of due process."
Murphy v. Florida, 421 U.S. at
421 U. S. 799.
Appellate evaluations as to the impact of publicity take into
account what other measures were used to mitigate the adverse
effects of publicity. The more difficult prospective or predictive
assessment that a trial judge must make also calls for a judgment
as to whether other precautionary steps will suffice.
We have therefore examined this record to determine the probable
efficacy of the measures short of prior restraint on the press and
speech. There is no finding that alternative measures would not
have protected Simants' rights, and the Nebraska Supreme Court did
no more than imply that such measures might not be adequate.
Moreover, the record is lacking in evidence to support such a
finding.
C
We must also assess the probable efficacy of prior restraint on
publication as a workable method of protecting Simants' right to a
fair trial, and we cannot ignore the reality of the problems of
managing and enforcing pretrial restraining orders. The territorial
jurisdiction of the issuing court is limited by concepts of
sovereignty,
see, e.g., Hanson v. Denckla, 357 U.
S. 235 (1958);
Pennoyer v. Neff, 95 U. S.
714 (1878). The need for
in
Page 427 U. S. 566
personam jurisdiction also presents an obstacle to a
restraining order that applies to publication at large a
distinguished from restraining publication within a given
Jurisdiction. [
Footnote 9]
See generally American Bar Association, Legal Advisory
Committee on Fair Trial and Free Press, Recommended Court Procedure
to Accommodate Rights of Fair Trial and Free Press (Rev. Draft,
Nov.1975); Rendleman, Free Press-Fair Trial: Review of Silence
Orders, 52 N.C.L.Rev. 127, 149-155 (1973). [
Footnote 10]
The Nebraska Supreme Court narrowed the scope of the restrictive
order, and its opinion reflects awareness of the tensions between
the need to protect the accused as fully as possible and the need
to restrict publication as little as possible. The dilemma posed
underscores how
Page 427 U. S. 567
difficult it is for trial judges to predict what information
will, in fact, undermine the impartiality of jurors, and the
difficulty of drafting an order that will effectively keep
prejudicial information from prospective jurors. When a restrictive
order is sought, a court can anticipate only part of what will
develop that may injure the accused. But information not so
obviously prejudicial may emerge, and what may properly be
published in these "gray zone" circumstances may not violate the
restrictive order and yet be prejudicial.
Finally, we note that the events disclosed by the record took
place in a community of 850 people. It is reasonable to assume
that, without any news accounts being printed or broadcast, rumors
would travel swiftly by word of mouth. One can only speculate on
the accuracy of such reports, given the generative propensities of
rumors; they could well be more damaging than reasonably accurate
news accounts. But plainly a whole community cannot be restrained
from discussing a subject intimately affecting life within it.
Given these practical problems, it is far from clear that prior
restraint on publication would have protected Simants' rights.
D
Finally, another feature of this case leads us to conclude that
the restrictive order entered here is not supportable. At the
outset, the County Court entered a very broad restrictive order,
the terms of which are not before us; it then held a preliminary
hearing open to the public and the press. There was testimony
concerning at least two incriminating statements made by Simants to
private persons; the statement -- evidently a confession -- that he
gave to law enforcement officials was also introduced. The State
District Court's later order was entered after this public hearing
and, as modified by the
Page 427 U. S. 568
Nebraska Supreme Court, enjoined reporting of (1) "[c]onfessions
or admissions against interest made by the accused to law
enforcement officials"; (2) "[c]onfessions or admissions against
interest, oral or written, if any, made by the accused to third
parties, excepting any statements, if any, made by the accused to
representatives of the news media"; and (3) all "[o]ther
information strongly implicative of the accused as the perpetrator
of the slayings." 194 Neb. at 801, 236 N.W.2d at 805.
To the extent that this order prohibited the reporting of
evidence adduced at the open preliminary hearing, it plainly
violated settled principles: "[T]here is nothing that proscribes
the press from reporting events that transpire in the courtroom."
Sheppard v. Maxwell, 384 U.S. at
384 U. S.
362-363.
See also Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469
(1975);
Craig v. Harney, 331 U. S. 367
(1947). The County Court could not know that closure of the
preliminary hearing was an alternative open to it until the
Nebraska Supreme Court so construed state law; but once a public
hearing had been held, what transpired there could not be subject
to prior restraint.
The third prohibition of the order was defective in another
respect as well. As part of a final order, entered after plenary
review, this prohibition regarding "implicative" information is too
vague and too broad to survive the scrutiny we have given to
restraints on First Amendment rights.
See, e.g., Hynes v. Mayor
of Oradell, 425 U. S. 610
(1976);
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 762
(1976);
NAACP v. Button, 371 U. S. 415
(1963). The third phase of the order entered falls outside
permissible limits.
E
The record demonstrates, as the Nebraska courts held, that there
was indeed a risk that pretrial news accounts,
Page 427 U. S. 569
true or false, would have some adverse impact on the attitudes
of those who might be called as jurors. But, on the record now
before us, it is not clear that further publicity, unchecked, would
so distort the views of potential jurors that 12 could not be found
who would, under proper instructions, fulfill their sworn duty to
render a just verdict exclusively on the evidence presented in open
court. We cannot say on this record that alternatives to a prior
restraint on petitioners would not have sufficiently mitigated the
adverse effects of pretrial publicity so as to make prior restraint
unnecessary. Nor can we conclude that the restraining order
actually entered would serve its intended purpose. Reasonable minds
can have few doubts about the gravity of the evil pretrial
publicity can work, but the probability that it would do so here
was not demonstrated with the degree of certainty our cases on
prior restraint require.
Of necessity, our holding is confined to the record before us.
But our conclusion is not simply a result of assessing the adequacy
of the showing made in this case; it results in part from the
problems inherent in meeting the heavy burden of demonstrating, in
advance of trial, that without prior restraint a fair trial will be
denied. The practical problems of managing and enforcing
restrictive orders will always be present. In this sense, the
record now before us is illustrative, rather than exceptional. It
is significant that, when this Court has reversed a state
conviction because of prejudicial publicity, it has carefully noted
that some course of action short of prior restraint would have made
a critical difference.
See Sheppard v. Maxwell, supra at
384 U. S. 363;
Estes v. Texas, 381 U.S. at
381 U. S.
550-551;
Rideau v. Louisiana, 373 U.S. at
373 U. S. 726;
Irwin v. Dowd, 366 U.S. at
366 U. S. 728.
However difficult it may be, we need not rule out the possibility
of showing the kind of threat to fair trial rights that would
possess
Page 427 U. S. 570
the requisite degree of certainty to justify restraint. This
Court has frequently denied that First Amendment rights are
absolute and has consistently rejected the proposition that a prior
restraint can never be employed.
See New York Times Co. v.
United States, 403 U. S. 713
(1971);
Organization for a Better Austin v. Keefe,
402 U. S. 415
(1971);
Near v. Minnesota ex rel. Olson, 283 U.
S. 697 (1931).
Our analysis ends as it began, with a confrontation between
prior restraint imposed to protect one vital constitutional
guarantee and the explicit command of another that the freedom to
speak and publish shall not be abridged. We reaffirm that the
guarantees of freedom of expression are not an absolute prohibition
under all circumstances, but the barriers to prior restraint remain
high, and the presumption against its use continues intact. We hold
that, with respect to the order entered in this case prohibiting
reporting or commentary on judicial proceedings held in public, the
barriers have not been overcome; to the extent that this order
restrained publication of such material, it is clearly invalid. To
the extent that it prohibited publication based on information
gained from other sources, we conclude that the heavy burden
imposed as a condition to securing a prior restraint was not met,
and the judgment of the Nebraska Supreme Court is therefore
Reversed.
[
Footnote 1]
These Guidelines are voluntary standards adopted by members of
the state bar and news media to deal with the reporting of crimes
and criminal trials. They outline the matters of fact that may
appropriately be reported, and also list what items are not
generally appropriate for reporting, including confessions,
opinions on guilt or innocence, statements that would influence the
outcome of a trial, the results of tests or examinations, comments
on the credibility of witnesses, and evidence presented in the
jury's absence. The publication of an accused's criminal record
should, under the Guidelines, be "considered very carefully." The
Guidelines also set out standards for taking and publishing
photographs, and set up a joint bar-press committee to foster
cooperation in resolving particular problems that emerge.
[
Footnote 2]
In the interim, petitioners applied to MR. JUSTICE BLACKMUN as
Circuit Justice for a stay of the State District Court's order. He
postponed ruling on the application out of deference to the
Nebraska Supreme Court,
423 U. S. 1319
(Nov. 13, 1975) (in chambers); when he concluded that the delay
before that court had "exceed[ed] tolerable limits," he entered an
order.
423 U. S. 1327,
423 U. S.
1329 (Nov. 20, 1975) (in chambers). We need not set out
in detail MR. JUSTICE BLACKMUN's careful decision on this difficult
issue. In essence he stayed the order insofar as it incorporated
the admonitory Bar-Press Guidelines and prohibited reporting of
some other matters. But he declined
"at least on an application for a stay and at this distance,
[to] impose a prohibition upon the Nebraska courts from placing any
restrictions at all upon what the media may report prior to
trial."
Id. at 1332. He therefore let stand that portion of the
District Court's order that prohibited reporting the existence or
nature of a confession, and declined to prohibit that court from
restraining publication of facts that were so "highly prejudicial"
to the accused or "strongly implicative" of him that they would
"irreparably impair the ability of those exposed to them to reach
an independent and impartial judgment as to guilt."
Id. at
1333. Subsequently, petitioners applied for a more extensive stay;
this was denied by the full Court.
423 U.
S. 1027 (1975).
[
Footnote 3]
The Warren Commission conducting an inquiry into the murder of
President Kennedy implied grave doubts whether, after the
dissemination of "a great deal of misinformation" prejudicial to
Oswald, a fair trial could be had. Report of the President's
Commission on the Assassination of President John F. Kennedy 231
(1964). Probably the same could be said in turn with respect to a
trial of Oswald's murderer even though a multitude were
eyewitnesses to the guilty act.
See generally id. at
231-242; Jaffe, Trial by Newspaper, 40 N.Y.U.L.Rev. 504 (1965);
Powell, The Right to a Fair Trial, 51 A.B.A.J. 534 (1965).
[
Footnote 4]
The record also reveals that counsel for both sides acted
responsibly in this case, and there is no suggestion that either
sought to use pretrial news coverage for partisan advantage. A few
days after the crime, newspaper accounts indicated that the
prosecutor had announced the existence of a confession; we learned
at oral argument that these accounts were false, although, in fact,
a confession had been made. Tr. of Oral Arg. 337, 59.
[
Footnote 5]
In
Near v. Minnesota, Mr. Chief Justice Hughes was also
able to say:
"There is also the conceded authority of courts to punish for
contempt when publications directly tend to prevent the proper
discharge of judicial functions."
283 U.S. at
283 U. S. 715.
A subsequent line of cases limited sharply the circumstances under
which courts may exact such punishment.
See Craig v.
Harney, 331 U. S. 367
(1947);
Pennekamp v. Florida, 328 U.
S. 331 (1946);
Bridges v. California,
314 U. S. 252
(1941). Because these cases deal with punishment based on contempt,
however, they deal with problems substantially different from those
raised by prior restraint.
See also Barist, The First
Amendment and Regulation of Prejudicial Publicity -- An Analysis,
36 Ford.L.Rev. 425, 433-442 (1968).
[
Footnote 6]
See A. Bickel, The Morality of Consent 61 (1975).
[
Footnote 7]
The respondent and intervenors argue here that a change of venue
would not have helped, since Nebraska law permits a change only to
adjacent counties, which had been as exposed to pretrial publicity
in this case as Lincoln County. We have held that state laws
restricting venue must on occasion yield to the constitutional
requirement that the State afford a fair trial.
Groppi v.
Wisconsin, 400 U. S. 505
(1971). We note also that the combined population of Lincoln County
and the adjacent counties is over 80,000, providing a substantial
pool of prospective jurors.
[
Footnote 8]
Closing of pretrial proceedings with the consent of the
defendant when required is also recommended in guidelines that have
emerged from various studies. At oral argument, petitioners'
counsel asserted that judicially imposed restraints on lawyers and
others would be subject to challenge as interfering with press
rights to news sources. Tr. of Oral Arg. 7-8.
See, e.g.,
Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (CA7 1975),
cert. denied sub nom. Cunningham v. Chicago Council of Lawyers,
post, p. 912. We are not now confronted with such issues.
We note that, in making its proposals, the American Bar
Association recommended strongly against resort to direct
restraints on the press to prohibit publication. American Bar
Association Project on Standards for Criminal Justice, Fair Trial
and Free Press 68-73 (App.Draft 1968). Other groups have reached
similar conclusions.
See Report of the Judicial Conference
Committee on the Operation of the Jury System, "Free Press-Fair
Trial" Issue, 45 F.R.D. 391, 401 403 (1968); Special Committee on
Radio, Television, and the Administration of Justice of the
Association of the Bar of the City of New York, Freedom of the
Press and Fair Trial 111 (1967).
[
Footnote 9]
Here, for example, the Nebraska Supreme Court decided that the
District Court had no jurisdiction of the petitioners except by
virtue of their voluntary submission to the jurisdiction of that
court when they moved to intervene. Except for the intervention
which placed them within reach of the court, the Nebraska Supreme
Court conceded, the petitioners "could have ignored the
[restraining] order. . . ."
State v. Simants, 194 Neb.
783, 795,
236 N.W.2d
794, 802 (1975).
[
Footnote 10]
Assuming,
arguendo, that these problems are within
reach of legislative enactment, or that some application of
evolving concepts of long-arm jurisdiction would solve the problems
of personal jurisdiction, even a cursory examination suggests how
awkwardly broad prior restraints on publication, directed not at
named parties but at large, would fit into our jurisprudence. The
British experience is in sharp contrast for a variety of reasons;
Great Britain has a smaller and unitary court system permitting the
development of a manageable system of prior restraints by the
application of the constructive contempt doctrine.
Cf.
n 5,
supra at 557;
see generally Maryland v. Baltimore Radio Show,
338 U. S. 912,
338 U. S.
921-936 (1950) (App. to opinion of Frankfurter, J.,
respecting denial of certiorari); Gillmor, Free Press and Fair
Trial in English Law, 22 Wash. & Lee L.Rev. 17 (1965).
Moreover, any comparison between the two systems must take into
account that, although England gives a very high place to freedom
of the press and speech, its courts are not subject to the explicit
strictures of a written constitution.
MR. JUSTICE WHITE, concurring.
Technically, there is no need to go farther than the Court does
to dispose of this case, and I join the Court's opinion. I should
add, however, that, for the reasons which the Court itself
canvasses, there is grave doubt in my mind whether orders with
respect to the press such as were entered in this case would ever
be justifiable.
Page 427 U. S. 571
It may be the better part of discretion, however, not to
announce such a rule in the first case in which the issue has been
squarely presented here. Perhaps we should go no further than
absolutely necessary until the federal courts, and ourselves, have
been exposed to a broader spectrum of cases presenting similar
issues. If the recurring result, however, in case after case is to
be similar to our judgment today, we should at some point announce
a more general rule, and avoid the interminable litigation that our
failure to do so would necessarily entail.
MR. JUSTICE POWELL, concurring.
Although I join the opinion of the Court, in view of the
importance of the case, I write to emphasize the unique burden that
rests upon the party, whether it be the State or a defendant, who
undertakes to show the necessity for prior restraint on pretrial
publicity.
*
In my judgment, a prior restraint properly may issue only when
it is shown to be necessary to prevent the dissemination of
prejudicial publicity that otherwise poses a high likelihood of
preventing, directly and irreparably, the impaneling of a jury
meeting the Sixth Amendment requirement of impartiality. This
requires a showing that (i) there is a clear threat to the fairness
of trial, (ii) such a threat is posed by the actual publicity to be
restrained, and (iii) no less restrictive alternatives are
available. Notwithstanding such a showing, a restraint may not
issue unless it also is shown that previous publicity or publicity
from unrestrained sources will not render the restraint
inefficacious. The threat to the fairness
Page 427 U. S. 572
of the trial is to be evaluated in the context of Sixth
Amendment law on impartiality, and any restraint must comply with
the standards of specificity always required in the First Amendment
context.
I believe these factors are sufficiently addressed in the
Court's opinion to demonstrate beyond question that the prior
restraint here was impermissible.
* In
Times-Picayune Pub. Corp. v. Schulingkamp,
419 U. S. 1301,
419 U. S.
1307 (1974), an in-chambers opinion, I noted that there
is a heavy presumption against the constitutional validity of a
court order restraining pretrial publicity.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, concurring in the judgment.
The question presented in this case is whether, consistently
with the First Amendment, a court may enjoin the press, in advance
of publication, [
Footnote 2/1] from
reporting or commenting on information acquired from public court
proceedings, public court records, or other sources about pending
judicial proceedings. The Nebraska Supreme Court upheld such a
direct prior restraint on the press, issued by the judge presiding
over a sensational state murder trial, on the ground that there
existed a
"clear and present danger that pretrial publicity could
substantially impair the right of the defendant [in the murder
trial] to a trial by an impartial jury unless restraints were
imposed."
State v. Simants, 194 Neb. 783, 794,
236 N.W.2d
794, 802 (1975). The right to a fair trial by a jury of one's
peers is unquestionably one of the most precious and sacred
safeguards enshrined in the Bill of Rights. I would hold, however,
that resort to prior restraints on the freedom of the press is a
constitutionally impermissible method for enforcing that right;
judges have at their disposal a broad spectrum of devices for
ensuring that fundamental fairness is accorded the
Page 427 U. S. 573
accused without necessitating so drastic an incursion on the
equally fundamental and salutary constitutional mandate that
discussion of public affairs in a free society cannot depend on the
preliminary grace of judicial censors.
I
The history of the current litigation highlights many of the
dangers inherent in allowing any prior restraint on press reporting
and commentary concerning the operations of the criminal justice
system.
This action arose out of events surrounding the prosecution of
respondent intervenor Simants for the premeditated mass murder of
the six members of the Kellie family in Sutherland, Neb. on October
18, 1975. Shortly after the crimes occurred, the community of 850
was alerted by a special announcement over the local television
station. Residents were requested by the police to stay off the
streets and exercise caution as to whom they admitted into their
houses, and rumors quickly spread that a sniper was loose in
Sutherland. When an investigation implicated Simants as a suspect,
his name and description were provided to the press and then
disseminated to the public.
Simants was apprehended on the morning of October 19, charged
with six counts of premeditated murder, and arraigned before the
County Court of Lincoln County, Neb. Because several journalists
were in attendance and "proof concerning bail . . . would be
prejudicial to the rights of the defendant to later obtain a fair
trial," App. 7, a portion of the bail hearing was closed, over
Simants' objection, pursuant to the request of the Lincoln County
Attorney. At the hearing, counsel was appointed for Simants, bail
was denied, and October 22 was set as the date for a preliminary
hearing to determine whether Simants should be bound over for trial
in
Page 427 U. S. 574
the District Court of Lincoln County, Neb. News of Simants'
apprehension, which was broadcast over radio and television and
reported in the press, relieved much of the tension that had built
up during the night. During the period from October 19 until the
first restrictive order was entered three days later,
representatives of the press made accurate factual reports of the
events that transpired, including reports of incriminating
statements made by Simants to various relatives.
On the evening of October 21, the prosecution filed a motion
that the County Court issue a restrictive order enjoining the press
from reporting significant aspects of the case. The motion, filed
without further evidentiary support, stated:
"The State of Nebraska hereby represents unto the Court that,
by reason of the nature of the above-captioned case, there
has been, and no doubt there will continue to be, mass coverage by
news media not only locally, but nationally as well; that a
preliminary hearing on the charges has been set to commence at 9:00
a.m. on October 22, 1975; and there is a
reasonable likelihood
of prejudicial news which would make difficult, if not impossible,
the impaneling of an impartial jury and tend to prevent a fair
trial should the defendant be bound over to trial in the District
Court if testimony of witnesses at the preliminary hearing is
reported to the public."
"Wherefore the State of Nebraska moves that the Court forthwith
enter a Restrictive Order setting forth the matters that may or may
not be publicly reported or disclosed to the public with reference
to said case or with reference to the preliminary hearing thereon,
and to whom said order shall apply."
App. 8. (Emphasis supplied.)
Half an hour later, the County Court Judge heard
Page 427 U. S. 575
argument on the prosecution motion. Defense counsel joined in
urging imposition of a restrictive order, and further moved that
the preliminary hearing be closed to both the press and the public.
No representatives of the media were notified of or called to
testify at the hearing, and no evidence of any kind was
introduced.
On October 22, when the autopsy results were completed, the
County Attorney filed an amended complaint charging that the six
premeditated murders had been committed by Simants in conjunction
with the perpetration of or attempt to perpetrate a sexual assault.
About the same time, at the commencement of the preliminary
hearing, the County Court entered a restrictive order premised on
its finding that there was
"a reasonable likelihood of prejudicial news which would make
difficult, if not impossible, the impaneling of an impartial jury
in the event that the defendant is bound over to the District Court
for trial. . . ."
Amended Pet. for Cert. 1a. Accordingly, the County Court ordered
that all parties to the case, attorneys, court personnel, public
officials, law enforcement officials, witnesses, and "any other
person present in Court" during the preliminary hearing, were not
to
"release or authorize the release for public dissemination in
any form or manner whatsoever any testimony given or evidence
adduced during the preliminary hearing."
Id. at 2a. The court further ordered that no law
enforcement official, public officer, attorney, witness, or "news
media"
"disseminate any information concerning this matter apart from
the preliminary hearing other than as set forth in the Nebraska
Bar-Press Guidelines for Disclosure and Reporting of Information
Relating to Imminent or Pending Criminal Litigation."
Ibid. [
Footnote 2/2]
The order was to
Page 427 U. S. 576
remain in effect "until modified or rescinded by a higher court
or until the defendant is ordered released from these charges."
Id. at 3a. The court also denied the defense request to
close the preliminary hearing, [
Footnote 2/3] and an open hearing was then held, at
which time various witnesses testified, disclosing significant
factual information concerning the events surrounding the alleged
crimes. Upon completion of the hearing, the County Court bound the
defendant over for trial in the District Court, since it found that
the offenses charged in the indictment had been committed, and that
there was probable cause to believe that Simants had committed
them.
The next day, petitioners -- Nebraska newspaper publishers,
broadcasters, journalists, and media associations,
Page 427 U. S. 577
and national newswire services that report from and to Nebraska
-- sought leave from the District Court to intervene in the
criminal case and vacation of the County Court's restrictive order
as repugnant to the First and Sixth Amendments to the United States
Constitution as well as relevant provisions of the Nebraska
Constitution. Simants' attorney moved that the order be continued,
and that future pretrial hearings in the case be closed. The
District Court then held an evidentiary hearing, after which it
denied the motion to close any hearings, granted petitioners'
motion to intervene, and adopted on an interim basis the County
Court's restrictive order. The only testimony adduced at the
hearing with respect to the need for the restrictive order was that
of the County Court Judge, who stated that he had premised his
order on his awareness of media publicity, "[c]onversation around
the courthouse," and "statements of counsel. "App. 64, 65. In
addition, several newspaper clippings pertaining to the case were
introduced as exhibits before the District Court.
Without any further hearings, the District Court, on October 27,
terminated the County Court's order and substituted its own. The
court found that,
"
because of the nature of the crimes charged in the
complaint . . . , there is a
clear and present danger that
pretrial publicity
could impinge upon the defendant's right to
a fair trial, and that an order setting forth the limitations
of pretrial publicity is appropriate. . . ."
Amended Pet. for Cert. 9a (emphasis supplied). Respondent
Stuart, the District Court Judge, then "adopted" as his order the
Nebraska Bar-Press Guidelines as "clarified" by him in certain
respects. [
Footnote 2/4]
Page 427 U. S. 578
On October 31, petitioners sought a stay of the order from the
District Court and immediate relief from the Nebraska Supreme Court
by way of mandamus, stay, or expedited appeal. When neither the
District Court nor the Nebraska Supreme Court acted on these
motions,
Page 427 U. S. 579
petitioners on November 5 applied to MR. JUSTICE BLACKMUN, as
Circuit Justice, for a stay of the District Court's order. Five
days later, the Nebraska Supreme Court issued a per curiam
statement that, to avoid being put in the position of "exercising
parallel jurisdiction with the Supreme Court of the United States,"
it would continue the matter until this Court "made known whether
or not it will accept jurisdiction in the matter."
Id. at
19a-20a.
On November 13, MR. JUSTICE BLACKMUN filed an in-chambers
opinion in which he declined to act on the stay "at least for the
immediate present."
423 U. S. 1319,
423 U. S.
1326. He observed:
"[I]f no action on the [petitioners'] application to the Supreme
Court of Nebraska could be anticipated before December 1, [as was
indicated by a communication from that court's clerk before the
court issued the per curiam statement,] . . . a definitive decision
by the State's highest court on an issue of profound constitutional
implications, demanding immediate resolution, would be delayed for
a period so long that the very day-to-day duration of that delay
would constitute and aggravate a deprival of such constitutional
rights, if any, that the [petitioners] possess and may properly
assert. Under those circumstances, I would not hesitate promptly to
act."
Id. at
423 U. S.
1324-1325. However, since the Nebraska Supreme Court had
indicated in its per curiam statement that it was only declining to
act because of uncertainty as to what this Court would do, and
since it was deemed appropriate for the state court to pass
initially on the validity of the restrictive order, MR. JUSTICE
BLACKMUN, "without prejudice to the [petitioners] to reapply to me
should prompt action not be forthcoming,"
id. at
423 U. S.
1326, denied the stay
"[o]n the expectation . . . that the Supreme Court of Nebraska,
forthwith and without delay will entertain the
Page 427 U. S. 580
[petitioners'] application made to it, and will promptly decide
it in the full consciousness that 'time is of the essence.'"
Id. at 1325.
When, on November 18, the Supreme Court of Nebraska set November
25 as the date to hear arguments on petitioners' motions,
petitioners reapplied to MR. JUSTICE BLACKMUN for relief. On
November 20, MR. JUSTICE BLACKMUN, concluding that each passing day
constituted an irreparable infringement on First Amendment values
and that the state courts had delayed adjudication of petitioners'
claims beyond "tolerable limits,"
423 U. S. 1327,
423 U. S.
1329, granted a partial stay of the District Court's
order. First, the "wholesale incorporation" of the Nebraska
Bar-Press Guidelines was stayed on the ground that they "constitute
a
voluntary code' which was not intended to be mandatory" and
which was "sufficiently riddled with vague and indefinite
admonitions -- understandably so in view of the basic nature of
`guidelines,'" that they did "not provide the substance of a
permissible court order in the First Amendment area." Id.
at 1330, 1331. However, the state courts could
"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."
Id. at 1331. Second, the portion of the District Court
order prohibiting reporting of the details of the crimes, the
identities of the victims, and the pathologist's testimony at the
preliminary hearing was stayed because there was "[n]o persuasive
justification" for the restraint; such "facts in themselves do not
implicate a particular putative defendant,"
ibid.,
and,
"until the bare facts concerning the crimes are related to a
particular accused, . . . their being reported in the media [does
not appear to] irreparably infringe the accused's right
Page 427 U. S. 581
to a fair trial of the issue as to whether he was the one who
committed the crimes."
Id. at 1332. Third, believing that prior restraints of
this kind "are not necessarily and in all cases invalid," MR.
JUSTICE BiACKMUN concluded that
"certain facts that strongly implicate an accused may be
restrained from publication by the media prior to his trial. A
confession or statement against interest is the paradigm,"
id. at 1332-1333, and other such facts would include
"those associated with the circumstances of his arrest," those
"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,"
and "statements as to the accused's guilt by those associated
with the prosecution."
Id. at 1333. [
Footnote 2/5] Finally, the restrictive order's
limitation on disclosure of the nature of the limitations
themselves was stayed "to the same extent" as the limitations.
Ibid. [
Footnote 2/6]
The following day petitioners filed a motion that the Court
vacate MR. JUSTICE BLACKMUN's order to the extent it permitted the
imposition of any prior restraint on publication. Meanwhile, on
November 25, the Supreme Court of Nebraska heard oral argument as
scheduled,
Page 427 U. S. 582
and, on December 1, filed a per curiam opinion. [
Footnote 2/7] Initially, the court held that it was
improper for petitioners or any other third party to intervene in a
criminal case, and that the appeal from that case must therefore be
denied. However, the court concluded that it had jurisdiction over
petitioners' mandamus action against respondent Stuart, and that
respondents Simants and State of Nebraska had properly intervened
in that action. [
Footnote 2/8]
Addressing the merits of the prior restraint issued by the District
Court, the Nebraska Supreme Court acknowledged that this Court
"has not yet had occasion to speak definitively where a clash
between these two preferred rights [the First Amendment freedom of
speech and of the press and the Sixth Amendment right to trial by
an impartial jury] was sought to be accommodated by a prior
restraint on freedom of the press."
194 Neb. at 791, 236 N.W.2d at 800. However, relying on dictum
in
Branzburg v. Hayes, 408 U. S. 665
(1972), [
Footnote 2/9] and our
statement in
New York Times Co. v. United States,
403 U. S. 713
(1971), that a prior restraint on the
Page 427 U. S. 583
media bears "
a heavy presumption against its constitutional
validity,'" id. at 403 U. S. 714,
the court discerned an "implication"
"that, if there is only a presumption of unconstitutionality,
then there must be some circumstances under which prior restraints
may be constitutional, for otherwise there is no need for a mere
presumption."
194 Neb. at 793, 236 N.W.2d at 801. The court then concluded
that there was evidence "to overcome the heavy presumption" in that
the State's obligation to accord Simants an impartial jury trial
"may be impaired" by pretrial publicity, and that pretrial
publicity "might make it difficult or impossible" to accord Simants
a fair trial.
Id. at 794, 797, 236 N.W.2d at 802, 803.
[
Footnote 2/10] Accordingly, the
court held,
id. at 801, 236 N.W.2d at 805:
"[T]he order of the District Court of October 27, 1975, is void
insofar as it incorporates the voluntary guidelines and in certain
other respects in that it impinges too greatly upon freedom of the
press. The guidelines were not intended to be contractual, and
cannot be enforced as if they were."
"The order of the District Court of October 27, 1975, is
vacated, and is modified and reinstated in the
Page 427 U. S. 584
following respects: it shall be effective only as to events
which have occurred prior to the filing of this opinion, and only
as it applies to the relators herein, and only insofar as it
restricts publication of the existence or content of the following,
if any such there be: (1) Confessions or admissions against
interest made by the accused to law enforcement officials. (2)
Confessions or admissions against interest, oral or written, if
any, made by the accused to third parties, excepting any
statements, if any, made by the accused to representatives of the
news media. (3) Other information strongly implicative of the
accused as the perpetrator of the slayings. [
Footnote 2/11]"
On December 4, petitioners applied to this Court for a stay of
that order and moved that their previously filed papers be treated
as a petition for a writ of certiorari. On December 8, we granted
the latter motion and deferred consideration of the petition for a
writ and application for a stay pending responses from respondents
on the close of business the following day. 423 U.S. 1011.
[
Footnote 2/12] On December 12,
we granted the petition for a writ of certiorari, denied the motion
to expedite, and denied the application for a stay.
423 U.
S. 1027. [
Footnote
2/13]
Page 427 U. S. 585
II
A
The Sixth Amendment to the United States Constitution guarantees
that,
"[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed. . .
."
The right to a jury trial, applicable to the States through the
Due Process Clause of the Fourteenth Amendment,
see, e.g.,
Duncan v. Louisiana, 391 U. S. 145
(1968), is essentially
Page 427 U. S. 586
the right to a "fair trial by a panel of impartial,
indifferent' jurors," Irvin v. Dowd, 366 U.
S. 717, 366 U. S. 722
(1961), jurors who are "`indifferent as [they] stand unsworn.'"
Reynolds v. United States, 98 U. S.
145, 98 U. S. 154
(1879), quoting E. Coke, A Commentary upon Littleton 155b (19th ed.
1832). See also, e.g., Ristaino v. Ross, 424 U.
S. 589, 424 U. S. 597
n. 9 (1976); Rideau v. Louisiana, 373 U.
S. 723 (1963); Irvin v. Dowd, supra at
366 U. S. 722;
In re Murchison, 349 U. S. 133,
349 U. S. 136
(1955); In re Oliver, 333 U. S. 257
(1948). So basic to our jurisprudence is the right to a fair trial
that it has been called "the most fundamental of all freedoms."
Estes v. Texas, 381 U. S. 532,
381 U. S. 540
(1965). It is a right essential to the preservation and enjoyment
of all other rights, providing a necessary means of safeguarding
personal liberties against government oppression. See, e.g.,
Rideau v. Louisiana, supra at 726-727. See generally
Duncan v. Louisiana, supra at 373 U. S.
149-158.
The First Amendment to the United States Constitution, however,
secures rights equally fundamental in our jurisprudence, and its
ringing proclamation that "Congress shall make no law . . .
abridging the freedom of speech, or of the press . . ." has been
both applied through the Fourteenth Amendment to invalidate
restraints on freedom of the press imposed by the States,
see,
e.g., Miami Herald Publishing Co. v. Tornillo, 418 U.
S. 241 (1974);
New York Times Co. v. Sullivan,
376 U. S. 254
(1964);
Near v. Minnesota ex rel. Olson, 283 U.
S. 697 (1931), and interpreted to interdict such
restraints imposed by the courts,
see, e.g., New York Times Co.
v. United States, 403 U. S. 713
(1971);
Craig v. Harney, 331 U. S. 367
(1947);
Bridges v. California, 314 U.
S. 252 (1941). Indeed, it has been correctly perceived
that a
"responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal
field. . . . The
Page 427 U. S. 587
press does not simply publish information about trials, but
guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny
and criticism."
Sheppard v. Maxwell, 384 U. S. 333,
384 U. S. 350
(1966).
See also, e.g., Cox Broadcasting Corp. v. Cohn,
420 U. S. 469,
420 U. S.
491-496 (1975). Commentary and reporting on the criminal
justice system is at the core of First Amendment values, for the
operation and integrity of that system is of crucial import to
citizens concerned with the administration of government. Secrecy
of judicial action can only breed ignorance and distrust of courts
and suspicion concerning the competence and impartiality of judges;
free and robust reporting, criticism, and debate can contribute to
public understanding of the rule of law and to comprehension of the
functioning of the entire criminal justice system, as well as
improve the quality of that system by subjecting it to the
cleansing effects of exposure and public accountability.
See,
e.g., In re Oliver, supra, at
333 U. S.
270-271; L. Brandeis, Other People's Money 62 (1933)
("Sunlight is said to be the best of disinfectants; electric light
the most efficient policeman").
No one can seriously doubt, however, that uninhibited
prejudicial pretrial publicity may destroy the fairness of a
criminal trial,
see, e.g., Sheppard v. Maxwell, supra, and
the past decade has witnessed substantial debate, colloquially
known as the Free Press/Fair Trial controversy, concerning this
interface of First and Sixth Amendment rights. In effect, we are
now told by respondents that the two rights can no longer coexist
when the press possesses and seeks to publish "confessions or
admissions against interest" and other information "strongly
implicative" [
Footnote 2/14] of a
criminal defendant as the
Page 427 U. S. 588
perpetrator of a crime, and that one or the other right must
therefore be subordinated. I disagree. Settled case law concerning
the impropriety and constitutional invalidity of prior restraints
on the press compels the conclusion that there can be no
prohibition on the publication by the press of any information
pertaining to pending judicial proceedings or the operation of the
criminal justice system, no matter how shabby the means by which
the information is obtained. [
Footnote 2/15] This does not imply, however, any
subordination of Sixth Amendment rights, for an accused's right to
a fair trial may be adequately assured through methods that do not
infringe First Amendment values.
B
"[I]t has been generally, if not universally, considered that it
is the chief purpose of the [First Amendment's] guaranty to prevent
previous restraints upon publication.
Page 427 U. S. 589
Near v. Minnesota ex rel. Olson, 283 U.S. at
283 U. S. 713.
See also,
e.g., id. at
283 U. S. 716-717;
Patterson v. Colorado ex rel. Attorney General,
205 U. S.
454,
205 U. S. 462 (1907);
Grosjean v. American Press Co., 297 U. S.
233,
297 U. S. 249 (1936).
[
Footnote 2/16] Prior restraints
are 'the essence of censorship,'
Near v. Minnesota ex rel.
Olson, supra at
283 U. S. 713, and '[o]ur
distaste for censorship -- reflecting the natural distaste of a
free people -- is deep-written in our law.'
Southeastern
Promotions, Ltd. v. Conrad, 420 U. S. 546,
420 U. S.
553 (1975). The First Amendment thus accords greater
protection against prior restraints than it does against subsequent
punishment for a particular speech,
see, e.g., Carroll v.
Princess Anne, 393 U. S. 175,
393 U. S.
180-181 (1968);
Near v. Minnesota ex rel. Olson,
supra;"
"a free society prefers to punish the few who abuse rights of
speech after they break the law than to throttle them and all
others beforehand. It is always difficult to know in advance what
an individual will say, and the line between legitimate and
illegitimate speech is often so finely drawn that the risks of
free-wheeling censorship are formidable."
Southeastern Promotions, Ltd. v. Conrad, supra at
420 U. S. 559.
A commentator has cogently summarized many of the reasons for this
deep-seated American hostility to prior restraints:
"A system of prior restraint is in many ways more inhibiting
than a system of subsequent punishment: it is likely to bring under
government scrutiny a far wider range of expression; it shuts off
communication before it takes place; suppression by a stroke of the
pen is more likely to be applied than suppression through a
criminal process; the procedures
Page 427 U. S. 590
do not require attention to the safeguards of the criminal
process; the system allows less opportunity for public appraisal
and criticism; the dynamics of the system drive toward excesses, as
the history of all censorship shows."
T. Emerson, The System of Freedom of Expression 506 (1970).
[
Footnote 2/17]
Respondents correctly contend that "the [First Amendment]
protection even as to previous restraint is not absolutely
unlimited."
Near v. Minnesota ex rel. Olson, supra at
283 U. S. 716.
However, the exceptions to the rule have been confined to
"exceptional cases."
Ibid. The Court in
Near, the
first case in which we were faced with a prior restraint against
the press, delimited three such possible exceptional circumstances.
The first two exceptions were that "the primary requirements of
decency may be enforced against obscene publications," and that
"[t]he security of the community life may be protected against
incitements to acts of violence and the overthrow by force of
orderly government [for] [t]he constitutional guaranty of free
speech does not 'protect a man from an injunction against uttering
words that may have all the effect of force. . . .'"
Ibid. These exceptions have since come to be
interpreted as situations in which the "speech" involved is not
encompassed within the meaning of the First Amendment.
See,
e.g., Roth v. United States, 354 U. S. 476,
354 U. S. 481
(1957);
Miller v. California, 413 U. S.
15 (1973);
Chaplinsky v. New Hampshire,
315 U. S. 568
(1942).
See also New York Times Co. v. United States, 403
U.S. at
403 U. S. 726
n. (BRENNAN, J., concurring);
id. at
403 U. S. 731
n. 1 (WHITE, J., concurring).
Page 427 U. S. 591
And even in these situations, adequate and timely procedures are
mandated to protect against any restraint of speech that does come
within the ambit of the First Amendment.
See, e.g.,
Southeastern Promotions, Ltd. v. Conrad, supra; United States v.
Thirty-seven Photographs, 402 U. S. 363
(1971);
Freedman v. Maryland, 380 U. S.
51 (1965);
Bantam Books, Inc. v. Sullivan,
372 U. S. 58
(1963);
Speiser v. Randall, 357 U.
S. 513 (1958);
Kingsley Books, Inc. v. Brown,
354 U. S. 436
(1957). Thus, only the third category in
Near contemplated
the possibility that speech meriting and entitled to constitutional
protection might nevertheless be suppressed before publication in
the interest of some overriding countervailing interest:
"'When a nation is at war, many things that might be said in
time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that no
Court could regard them as protected by any constitutional right.'
Schenck v. United States, 249 U. S.
47,
249 U. S. 52. No one would
question but that a government might prevent actual obstruction to
its recruiting service or the publication of the sailing dates of
transports or the number and location of troops."
283 U.S. at
283 U. S.
716.
Even this third category, however, has only been adverted to in
dictum, and has never served as the basis for actually upholding a
prior restraint against the publication of constitutionally
protected materials. In
New York Times Co. v. United States,
supra, we specifically addressed the scope of the "military
security" exception alluded to in
Near, and held that
there could be no prior restraint on publication of the "Pentagon
Papers" despite the fact that a majority of the Court believed that
release of the documents, which were
Page 427 U. S. 592
classified "Top Secret-Sensitive" and which were obtained
surreptitiously, would be harmful to the Nation and might even be
prosecuted after publication as a violation of various espionage
statutes. To be sure, our brief per curiam declared that "
[a]ny
system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity,'"
id. at 283 U. S. 714,
quoting Bantam Books, Inc. v. Sullivan, supra at
372 U. S. 70,
and that the "Government `thus carries a heavy burden of showing
justification for the imposition of such a restraint.'" 403 U.S. at
403 U. S. 714,
quoting Organization for a Better Austin v. Keefe,
402 U. S. 415,
402 U. S. 419
(1971). This does not mean, as the Nebraska Supreme Court assumed,
[Footnote 2/18] that prior
restraints can be justified on an ad hoc balancing
approach that concludes that the "presumption" must be overcome in
light of some perceived "justification." Rather, this language
refers to the fact that, as a matter of procedural safeguards and
burden of proof, prior restraints, even within a recognized
exception to the rule against prior restraints, will be extremely
difficult to justify; but, as an initial matter, the purpose for
which a prior restraint is sought to be imposed "must fit within
one of the narrowly defined exceptions to the prohibition against
prior restraints." Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. at 420 U. S. 559;
see also, e.g.,, id. at 420 U. S. 555;
Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.
S. 376, 413 U. S. 382
(1973); Organization for a Better Austin v. Keefe, supra
at 402 U. S.
419-420; cf., e.g., Healy v. James,
408 U. S. 169
(1972); Freedman v. Maryland, 380 U.S. at 380 U. S. 58-59.
Indeed, two Justices in New York Times apparently
controverted the existence of even a limited "military security"
exception to the rule against prior restraints on the publication
of otherwise protected material, see 403 U.S.
Page 427 U. S. 593
at
403 U. S. 714
(Black, J.,. concurring);
id. at
403 U. S. 720
(Douglas, J., concurring). And a majority of the other Justices who
expressed their views on the merits made it clear that they would
take cognizance only of a "single, extremely narrow class of cases
in which the First Amendment's ban on prior judicial restraint may
be overridden."
Id. at
403 U. S. 726
(BRENNAN, J., concurring). Although variously expressed, it was
evident that even the exception was to be construed very, very
narrowly: when disclosure "will
surely result in direct,
immediate, and irreparable damage to our Nation or its
people,"
id. at
403 U. S. 730
(STEWART, J., joined by WHITE, J., concurring) (emphasis supplied)
or when there is
"governmental allegation and proof that publication must
inevitably, directly, and immediately cause the occurrence
of an event kindred to imperiling the safety of a transport already
at sea. . . . [But] [i]n no event may mere conclusions be
sufficient."
Id. at
403 U. S.
726-727 (BRENNAN, J., concurring) (emphasis supplied).
See also id. at
403 U. S.
730-731 (WHITE, J., joined by STEWART, J., concurring)
("concededly extraordinary protection against prior restraints
enjoyed by the press under our constitutional system" is not
overcome even by a showing that "revelation of these documents will
do substantial damage to public interests"). [
Footnote 2/19] It is thus clear that, even within
the sole possible exception to the prohibition against prior
restraints on publication of constitutionally protected
materials,
Page 427 U. S. 594
the obstacles to issuance of such an injunction are formidable.
What respondents urge upon us, however, is the creation of a new,
potentially pervasive exception to this settled rule of virtually
blanket prohibition of prior restraints. [
Footnote 2/20]
I would decline this invitation. In addition to the almost
insuperable presumption against the constitutionality of prior
restraints even under a recognized exception, and however laudable
the State's motivation for imposing restraints in this case,
[
Footnote 2/21] there are
compelling
Page 427 U. S. 595
reasons for not carving out a new exception to the rule against
prior censorship of publication.
1
Much of the information that the Nebraska courts
Page 427 U. S. 596
enjoined petitioners from publishing was already in the public
domain, having been revealed in open court proceedings or through
public documents. Our prior cases have foreclosed any serious
contention that further disclosure of such information can be
suppressed before publication or even punished after
publication.
"A trial is a public event. What transpires in the court room is
public property. . . . Those who see and hear what transpired can
report it with impunity. There is no special perquisite of the
judiciary which enables it, as distinguished from other
institutions of democratic government, to suppress, edit, or censor
events which transpire in proceedings before it."
Craig v. Harney, 331 U.S. at
331 U. S. 374.
Similarly,
Estes v. Texas, 381 U.S. at
381 U. S.
541-542, a case involving the Sixth Amendment right to a
fair trial, observed:
"[R]eporters of all media . . . are plainly free to report
whatever occurs in open court through their respective media. This
was settled in
Bridges v. California, 314 U. S.
252 (1941), and
Pennekamp v. Florida,
328 U. S.
331 (1946), which we reaffirm."
See also id. at
381 U. S.
583-585 (Warren, C.J., concurring). And
Sheppard v.
Maxwell, 384 U.S. at
384 U. S.
362-363, a case that detailed numerous devices that
could be employed for ensuring fair trials, explicitly reiterated
that, "[o]f course, there is nothing that proscribes the press from
reporting events that transpire in the courtroom."
See also
id. at
384 U. S. 350;
Stroble v. California, 343 U. S. 181,
343 U. S. 193
(1952). The continuing vitality of these statements was reaffirmed
only last Term in
Cox Broadcasting Corp. v. Cohn, a case
involving a suit for damages brought after publication under state
law recognizing the privacy interest of its citizens. In holding
that
Page 427 U. S. 597
a "State may [not] impose sanctions on the accurate publication
of the name of a rape victim obtained from public records," 420
U.S. at
420 U. S. 491,
we observed:
"[I]n a society in which each individual has but limited time
and resources with which to observe at first hand the operations of
his government, he relies necessarily upon the press to bring to
him in convenient form the facts of those operations.
Great
responsibility is accordingly placed upon the news media to report
fully and accurately the proceedings of government, and official
records and documents open to the public are the basic data of
governmental operations. Without the information provided by
the press, most of us and many of our representatives would be
unable to vote intelligently or to register opinions on the
administration of government generally.
With respect to
judicial proceedings in particular, the function of the press
serves to guarantee the fairness of trials and to bring to bear the
beneficial effects of public scrutiny upon the administration of
justice. See Sheppard v. Maxwell, 384 U. S.
333,
384 U. S. 350 (1966)."
"Appellee has claimed in this litigation that the efforts of the
press have infringed his right to privacy by broadcasting to the
world the fact that his daughter was a rape victim.
The
commission of crime, prosecutions resulting from it, and judicial
proceedings arising from the prosecutions, however, are, without
question, events of legitimate concern to the public, and
consequently fall within the responsibility of the press to report
the operations of government."
"
The special protected nature of accurate reports of
judicial proceedings has repeatedly been recognized."
Id. at
420 U. S.
491-492 (emphasis supplied).
Page 427 U. S. 598
"By placing the information in the public domain on official
court records, the State must be presumed to have concluded that
the public interest was thereby being served.
Public records by
their very nature are of interest to those concerned with the
administration of government, and a public benefit is performed by
the reporting of the true contents of the records by the media. The
freedom of the press to publish that information appears to us to
be of critical importance to our type of government in which the
citizenry is the final judge of the proper conduct of public
business. In preserving that form of government the First and
Fourteenth Amendments command nothing less than that the States may
not impose sanctions on the publication of truthful information
contained in official court records open to public inspection."
Id. at
420 U. S. 495
(emphasis supplied).
See also id. at
420 U. S. 496.
Prior restraints are particularly anathematic to the First
Amendment, and any immunity from punishment subsequent to
publication of given material applies
a fortiori to
immunity from suppression of that material before publication.
Thus, in light of
Craig, which involved a contempt
citation for a threat to the administration of justice, and
Cox
Broadcasting, which similarly involved an attempt to establish
civil liability after publication, it should be clear that no
injunction against the reporting of such information can be
permissible.
2
The order of the Nebraska Supreme Court also applied, of course
to "confessions" and other information "strongly implicative" of
the accused which were obtained from sources other than official
records or open
Page 427 U. S. 599
court proceedings. But for the reasons that follow -- reasons
equally applicable to information obtained by the press from
official records or public court proceedings -- I believe that the
same rule against prior restraints governs any information
pertaining to the criminal justice system, even if derived from
nonpublic sources and regardless of the means employed by the press
in its acquisition.
The only exception that has thus far been recognized even in
dictum to the blanket prohibition against prior restraints against
publication of material which would otherwise be constitutionally
shielded was the "military security" situation addressed in
New
York Times Co. v. United States. But unlike the virtually
certain, direct, and immediate harm required for such a restraint
under
Near and
New York Times, the harm to a fair
trial that might otherwise eventuate from publications which are
suppressed pursuant to orders such as that, under review must
inherently remain speculative.
A judge importuned to issue a prior restraint in the pretrial
context will be unable to predict the manner in which the
potentially prejudicial information would be published, the
frequency with which it would be repeated or the emphasis it would
be given, the context in which or purpose for which it would be
reported, the scope of the audience that would be exposed to the
information, [
Footnote 2/22]
Page 427 U. S. 600
or the impact, evaluated in terms of current standards for
assessing juror impartiality, [
Footnote 2/23] the information would have on that
audience. These considerations would render speculative the
prospective impact on a fair trial of reporting even an alleged
confession or other information "strongly implicative" of the
accused. Moreover, we can take judicial notice of the fact that,
given the prevalence of plea bargaining, few criminal cases proceed
to trial, and the judge would thus have to predict what the
likelihood was that a jury would even have to be impaneled.
[
Footnote 2/24] Indeed, even in
cases that do proceed to trial, the material sought to be
suppressed before trial will often be admissible and may be
admitted in any event. [
Footnote
2/25]
Page 427 U. S. 601
And, more basically, there are adequate devices for screening
from jury duty those individuals who have, in fact, been exposed to
prejudicial pretrial publicity.
Initially, it is important to note that, once the jury is
impaneled, the techniques of sequestration of jurors and control
over the courtroom and conduct of trial should prevent prejudicial
publicity from infecting the fairness of judicial proceedings.
[
Footnote 2/26] Similarly, judges
may stem much of the flow of prejudicial publicity at its source,
before it is obtained by representatives of the press. [
Footnote 2/27] But even if the press
nevertheless obtains potentially prejudicial information and
decides to publish that information,
Page 427 U. S. 602
the Sixth Amendment rights of the accused may still be
adequately protected. In particular, the trial judge should employ
the
voir dire to probe fully into the effect of publicity.
The judge should broadly explore such matters as the extent to
which prospective jurors had read particular news accounts or
whether they had heard about incriminating data such as an alleged
confession or statements by purportedly reliable sources concerning
the defendant's guilt.
See, e.g., Ham v. South Carolina,
409 U. S. 524,
409 U. S.
531-534 (1973) (opinion of MARSHALL, J.);
Swain v.
Alabama, 380 U. S. 202,
380 U. S.
209-222 (1965). Particularly in cases of extensive
publicity, defense counsel should be accorded more latitude in
personally asking or tendering searching questions that might root
out indications of bias, both to facilitate intelligent exercise of
peremptory challenges and to help uncover factors that would
dictate disqualification for cause. Indeed, it may sometimes be
necessary to question on
voir dire prospective jurors
individually or in small groups, both to maximize the likelihood
that members of the venire will respond honestly to questions
concerning bias, and to avoid contaminating unbiased members of the
venire when other members disclose prior knowledge of prejudicial
information. Moreover,
voir dire may indicate the need to
grant a brief continuance [
Footnote
2/28] or to grant a change of venue, [
Footnote 2/29] techniques that can effectively
Page 427 U. S. 603
mitigate any publicity at a particular time or in a particular
locale. Finally, if the trial court fails or refuses to utilize
these devices effectively, there are the "palliatives" of reversals
on appeal and directions for a new trial.
Sheppard v.
Maxwell, 384 U.S. at
384 U. S. 363.
[
Footnote 2/30] We have indicated
that, even in a case involving outrageous publicity and a "carnival
atmosphere" in the courtroom, "these procedures would have been
sufficient to guarantee [the defendant] a fair trial. . . ."
Id. at
384 U. S. 358.
See generally id. at
384 U. S.
358-363;
cf. Times-Picayune Pub. Corp. v.
Schulingkamp, 419 U. S. 1301,
419 U. S.
1308, and n. 3 (1974) (POWELL, J., in chambers). For
this reason, the one thing
Sheppard did not approve was
"any direct limitations on the freedom traditionally exercised by
the news media." 384 U.S. at
384 U. S. 350.
[
Footnote 2/31] Indeed, the
Page 427 U. S. 604
traditional .techniques approved in
Sheppard for
ensuring fair trials would have been adequate in every case in
which we have found that a new trial was required due to lack of
fundamental fairness to the accused.
For these reasons alone, I would reject the contention that
speculative deprivation of an accused's Sixth Amendment right to an
impartial jury is comparable to the damage to the Nation or its
people that
Near and
New York Times would have
found sufficient to justify a prior restraint on reporting. Damage
to that Sixth Amendment right could never be considered so direct,
immediate and irreparable, and based on such proof, rather than
speculation, that prior restraints on the press could be justified
on this basis.
C
There are additional, practical reasons for not starting down
the path urged by respondents. [
Footnote 2/32] The exception
Page 427 U. S. 605
to the prohibition of prior restraints adumbrated in
Near and
New York Times involves no judicial
weighing of the countervailing public interest in receiving the
suppressed information; the direct, immediate, and irreparable harm
that would result from disclosure is simply deemed to outweigh the
public's interest in knowing, for example, the specific details of
troop movements during wartime. As the Supreme Court of Nebraska
itself admitted, [
Footnote 2/33]
however, any attempt to impose a prior restraint on the reporting
of information concerning the operation of the criminal justice
system will inevitably involve the courts in an
ad hoc
evaluation of the need for the public to receive particular
information that might nevertheless implicate the accused as the
perpetrator of a crime. For example, disclosure of the
Page 427 U. S. 606
circumstances surrounding the obtaining of an involuntary
confession or the conduct of an illegal search resulting in
incriminating fruits may be the necessary predicate for a movement
to reform police methods, pass regulatory statutes, or remove
judges who do not adequately oversee law enforcement activity;
publication of facts surrounding particular plea-bargaining
proceedings or the practice of plea bargaining generally may
provoke substantial public concern as to the operations of the
judiciary or the fairness of prosecutorial decisions; reporting the
details of the confession of one accused may reveal that it may
implicate others as well, and the public may rightly demand to know
what actions are being taken by law enforcement personnel to bring
those other individuals to justice; commentary on the fact that
there is strong evidence implicating a government official in
criminal activity goes to the very core of matters of public
concern, and even a brief delay in reporting that information
shortly before an election may have a decisive impact on the
outcome of the democratic process,
see Carroll v. Princess
Anne, 393 U.S. at
393 U. S. 182;
dissemination of the fact that indicated individuals who had been
accused of similar misdeeds in the past had not been prosecuted or
had received only mild sentences may generate crucial debate on the
functioning of the criminal justice system; revelation of the fact
that despite apparently overwhelming evidence of guilt,
prosecutions were dropped or never commenced against large campaign
contributors or members of special interest groups may indicate
possible corruption among government officials; and disclosure of
the fact that a suspect has been apprehended as the perpetrator of
a heinous crime may be necessary to calm community fears that the
actual perpetrator is still at large.
Cf. Times-Picayune Pub.
Corp. v. Schulingkamp, 419 U.S. at
419 U. S.
1302
Page 427 U. S. 607
(POWELL, J., in chambers). [
Footnote 2/34] In all of these situations, judges would
be forced to evaluate whether the public interest in receiving the
information outweighed the speculative impact on Sixth Amendment
rights.
These are obviously only some examples of the problems that
plainly would recur, not in the almost theoretical situation of
suppressing disclosure of the location of troops during wartime,
but on a regular basis throughout the courts of the land.
Recognition of any judicial authority to impose prior restraints on
the basis of harm to the Sixth Amendment rights of particular
defendants, especially since that harm must remain speculative,
will thus inevitably interject judges at all levels into censorship
roles that are simply inappropriate and impermissible under the
First Amendment. Indeed, the potential for arbitrary and excessive
judicial utilization of any such power would be exacerbated by the
fact that judges and committing magistrates might in some cases be
determining the propriety of publishing information that reflects
on their competence, integrity, or general performance on the
bench.
There would be, in addition, almost intractable procedural
difficulties associated with any attempt to impose prior restraints
on publication of information relating to pending criminal
proceedings, and the ramifications of these procedural difficulties
would accentuate the burden on First Amendment rights. The
incentives and dynamics of the system of prior restraints would
inevitably lead to overemployment of the technique. In order to
minimize pretrial publicity against
Page 427 U. S. 608
his clients and preempt "ineffective assistance of counsel"
claims, counsel for defendants might routinely seek such
restrictive orders. Prosecutors would often acquiesce in such
motions to avoid jeopardizing a conviction on appeal. And, although
judges could readily reject many such claims as frivolous, there
would be a significant danger that judges would nevertheless be
predisposed to grant the motions, both to ease their task of
ensuring fair proceedings and to insulate their conduct in the
criminal proceeding from reversal. We need not raise any specter of
floodgates of litigation or drain on judicial resources to note
that the litigation with respect to these motions will
substantially burden the media. For, to bind the media, they would
have to be notified and accorded an opportunity to be heard.
See, e.g., Carroll v. Princess Anne, supra; McKinney v.
Alabama, 424 U. S. 669
(1976). This would at least entail the possibility of restraint
proceedings collateral to every criminal case before the courts,
and there would be a significant financial drain on the media
involuntarily made parties to these proceedings. Indeed, small news
organs on the margin of economic viability might choose not to
contest even blatantly unconstitutional restraints or to avoid all
crime coverage, with concomitant harm to the public's right to be
informed of such proceedings. [
Footnote 2/35] Such acquiescence might also mean that
significant erroneous precedents will remain unchallenged, to be
relied on for even broader restraints in the future. Moreover,
these collateral restraint proceedings would be unlikely to result
in equal treatment of all
Page 427 U. S. 609
organs of the media [
Footnote
2/36] and, even if all the press could be brought into the
proceeding, would often be ineffective, since disclosure of
incriminating material may transpire before an effective restraint
could be imposed. [
Footnote
2/37]
To be sure, because the decision to impose such restraints even
on the disclosure of supposedly narrow categories of information
would depend on the facts of each case, and because precious First
Amendment rights are at stake, those who could afford the
substantial costs would seek appellate review. But that review is
often inadequate, since delay inherent in judicial proceedings
could itself destroy the contemporary news value of the information
the press seeks to disseminate. [
Footnote 2/38] As one commentator has observed:
"Prior restraints fall on speech with a brutality and a finality
all their own. Even if they are ultimately lifted they cause
irremediable loss -- a loss in the immediacy, the impact, of
speech. . . . Indeed, it is the hypothesis of the First Amendment
that injury is inflicted on our society when we stifle the
immediacy of speech."
A. Bickel, The Morality of Consent 61 (1975). [
Footnote 2/39]
Page 427 U. S. 610
And, as noted, given the significant financial disincentives,
particularly on the smaller organs of the media, [
Footnote 2/40] to challenge any restrictive orders
once they are imposed
Page 427 U. S. 611
by trial judges, there is the distinct possibility that many
erroneous impositions would remain uncorrected. , [
Footnote 2/41]
III
I unreservedly agree with Mr. Justice Black that
"free speech and fair trials are two of the most cherished
policies of our civilization, and it would be a trying task to
choose between them."
Bridges v. California, 314 U.S. at
314 U. S. 260.
But I would reject the notion that a
Page 427 U. S. 612
choice is necessary, that there is an inherent conflict that
cannot be resolved without essentially abrogating one right or the
other. To hold that courts cannot impose any prior restraints on
the reporting of or commentary upon information revealed in open
court proceedings, disclosed in public documents, or divulged by
other sources with respect to the criminal justice system is not, I
must emphasize, to countenance the sacrifice of precious Sixth
Amendment rights on the altar of the First Amendment. For although
there may in some instances be tension between uninhibited and
robust reporting by the press and fair trials for criminal
defendants, judges possess adequate tools short of injunctions
against reporting for relieving that tension. To be sure, these
alternatives may require greater sensitivity and effort on the part
of judges conducting criminal trials than would the stifling of
publicity through the simple expedient of issuing a restrictive
order on the press; but that sensitivity and effort is required in
order to ensure the full enjoyment and proper accommodation of both
First and Sixth Amendment rights.
There is, beyond peradventure, a clear and substantial damage to
freedom of the press whenever even a temporary restraint is imposed
on reporting of material concerning the operations of the criminal
justice system, an institution of such pervasive influence in our
constitutional scheme. And the necessary impact of reporting even
confessions can never be so direct, immediate, and irreparable that
I would give credence to any notion that prior restraints may be
imposed on that rationale. It may be that such incriminating
material would be of such slight news value or so inflammatory in
particular cases that responsible organs of the media, in an
exercise of self-restraint, would choose not to publicize that
material, and not make the judicial task of safeguarding
Page 427 U. S. 613
precious rights of criminal defendants more difficult. Voluntary
codes such as the Nebraska Bar-Press Guidelines are a commendable
acknowledgment by the media that constitutional prerogatives bring
enormous responsibilities, and I would encourage continuation of
such voluntary cooperative efforts between the bar and the media.
However, the press may be arrogant, tyrannical, abusive, and
sensationalist, just as it may be incisive, probing, and
informative. But at least in the context of prior restraints on
publication, the decision of what, when, and how to publish is for
editors, not judges.
See, e.g., Near v. Minnesota ex rel.
Olson, 283 U.S. at
283 U. S. 720;
Cox Broadcasting Corp. v. Cohn, 420 U.S. at
420 U. S. 496;
Miami Herald Publishing Co. v. Tornillo, 418 U.S. at
418 U. S. 258;
id. at
418 U. S. 259
(WHITE, J., concurring);
cf. New York Times Co. v.
Sullivan, 376 U.S. at
376 U. S. 269-283. Every restrictive order imposed on
the press in this case was accordingly an unconstitutional prior
restraint on the freedom of the press, and I would therefore
reverse the judgment of the Nebraska Supreme Court and remand for
further proceedings not inconsistent with this opinion.
|
427
U.S. 539app|
APPENDIX TO OPINION OF BRENNAN, J.,
CONCURRING IN JUDGMENT
NEBRASKA BAR-PRESS GUIDELINES FOR DISCLOSURE
AND REPORTING OF INFORMATION RELATING TO
I
MMINENT OR PENDING CRIMINAL LITIGATION
These voluntary guidelines reflect standards which bar and news
media representatives believe are a reasonable means of
accommodating, on a voluntary basis, the correlative constitutional
rights of free speech and free press with the right of an accused
to a fair trial. They
Page 427 U. S. 614
are not intended to prevent the news media from inquiring into
and reporting on the integrity, fairness, efficiency and
effectiveness of law enforcement, the administration of justice, or
political or governmental questions whenever involved in the
judicial process.
As a voluntary code, these guidelines do not necessarily reflect
in all respects what the members of the bar or the news media
believe would be permitted or required by law.
I
nformation Generally Appropriate for
Disclosure, Reporting
Generally, it is appropriate to disclose and report the
following information:
1. The arrested person's name, age, residence, employment,
marital status and similar biographical information.
2. The charge, its text, any amendments thereto, and, if
applicable, the identity of the complainant.
3. The amount or conditions of bail.
4. The identity of and biographical information concerning the
complaining party and victim, and, if a death is involved, the
apparent cause of death unless it appears that the cause of death
may be a contested issue.
5. The identity of the investigating and arresting agencies and
the length of the investigation.
6. The circumstances of arrest, including time, place,
resistance, pursuit, possession of and all weapons used, and a
description of the items seized at the time of arrest. It is
appropriate to disclose and report at the time of seizure the
description of physical evidence subsequently seized other than a
confession, admission or statement. It is appropriate to disclose
and report the subsequent finding of weapons, bodies, contraband,
stolen property and similar physical items if, in view
Page 427 U. S. 615
of the time and other circumstances, such disclosure and
reporting are not likely to interfere with a fair trial.
7. Information disclosed by the public records, including all
testimony and other evidence adduced at the trial.
I
nformation Generally Not Appropriate for
Disclosure, Reporting
Generally, it is not appropriate to disclose or report the
following information because of the risk of prejudice to the right
of an accused to a fair trial:
1. The existence or contents of any confession, admission or
statement given by the accused, except it may be stated that the
accused denies the charges made against him. This paragraph is not
intended to apply to statements made by the accused to
representatives of the news media or to the public.
2. Opinions concerning the guilt, the innocence or the character
of the accused.
3. Statements predicting or influencing the outcome of the
trial.
4. Results of any examination or tests or the accused's refusal
or failure to submit to an examination or test.
5. Statements or opinions concerning the credibility or
anticipated testimony of prospective witnesses.
6. Statements made in the judicial proceedings outside the
presence of the jury relating to confessions or other matters
which, if reported, would likely interfere with a fair trial.
Prior Criminal Records
Lawyers and law enforcement personnel should not volunteer the
prior criminal records of an accused except to aid in his
apprehension or to warn the public of any dangers he presents. The
news media can obtain prior criminal records from the public
records of the courts,
Page 427 U. S. 616
police agencies and other governmental agencies and from their
own files. The news media acknowledge, however, that publication or
broadcast of an individual's criminal record can be prejudicial,
and its publication or broadcast should be considered very
carefully, particularly after the filing of formal charges and as
the time of the trial approaches, and such publication or broadcast
should generally be avoided because readers, viewers and listeners
are potential jurors and an accused is presumed innocent until
proven guilty.
Photographs
1. Generally, it is not appropriate for law enforcement
personnel to deliberately pose a person in custody for
photographing or televising by representatives of the news
media.
2. Unposed photographing and televising of an accused outside
the courtroom is generally appropriate, and law enforcement
personnel should not interfere with such photographing or
televising except in compliance with an order of the court or
unless such photographing or televising would interfere with their
official duties.
3. It is appropriate for law enforcement personnel to release to
representatives of the news media photographs of a suspect or an
accused. Before publication of any such photographs, the news media
should eliminate any portions of the photographs that would
indicate a prior criminal offense or police record.
Continuing Committee for Cooperation
The members of the bar and the news media recognize the
desirability of continued joint efforts in attempting to resolve
any areas of differences that may arise in their mutual objective
of assuring to all Americans both the correlative constitutional
rights to freedom
Page 427 U. S. 617
of speech and press and to a fair trial. The bar and the news
media, through their respective associations, have determined to
establish a permanent committee to revise these guidelines whenever
this appears necessary or appropriate, to issue opinions as to
their application to specific situations, to receive, evaluate and
make recommendations with respect to complaints and to seek to
effect through educational and other voluntary means a proper
accommodation of the constitutional correlative rights of free
speech, free press and fair trial.
rj:
June, 1970
lj:
[
Footnote 2/1]
In referring to the "press" and to "publication" in this
opinion, I of course use those words as terms of art that encompass
broadcasting by the electronic media as well.
[
Footnote 2/2]
A copy of the "Nebraska Bar-Press Guidelines," ostensibly a
voluntary code formulated by representatives of the media and the
bar, was attached to the order. The Guidelines, which are similar
to voluntary codes adhered to by the press in several States, are
attached as an
427
U.S. 539app|>appendix to this opinion.
Excepted from the scope of the County Court's order were: (1)
factual statements of the accused's name, age, residence,
occupation, and family status; (2) the circumstances of the arrest
(time and place, identity of the arresting and investigating
officers and agencies, and the length of the investigation); (3)
the nature, substance, and text of the charge; (4) quotations from,
or any reference without comment to, public records or
communications heretofore disseminated to the public; (5) the
scheduling and result of any stage of the judicial proceeding held
in open court; (6) a request for assistance in obtaining evidence;
and (7) a request for assistance in obtaining the names of possible
witnesses. The court also ordered that a copy of the preliminary
hearing proceedings was to be made available to the public at the
expiration of the order.
[
Footnote 2/3]
The court apparently believed that a public preliminary hearing
was required by state law. The Nebraska Supreme Court subsequently
held that the pertinent state statute did not require that pretrial
hearings be open to the public. Both petitioners and the State of
Nebraska agree that the question whether preliminary hearings may
be closed to the public consistently with the "Public Trial" Clause
of the Sixth Amendment is not before us, and it is therefore one on
which I would express no views.
[
Footnote 2/4]
The Nebraska Bar-Press Guidelines,
see 427
U.S. 539app|>appendix to this opinion, were "clarified" as
follows, Amended Pet. for Cert. 10a-11a:
"1. It is hereby stated the trial of the case commences when a
jury is empaneled to try the case, and that all reporting prior to
that event, specifically including the preliminary hearing is
'pretrial' publicity."
"2. It would appear that defendant has made a statement or
confession to law enforcement officials and it is inappropriate to
report the existence of such statement or the contents of it."
"3. It appears that the defendant may have made statements
against interest to James Robert Boggs, Amos Simants and Grace
Simants, and may have left a note in the William Boggs residence,
and that the nature of such statements, or the fact that such
statements were made, or the nature of the testimony of these
witnesses with reference to such statements in the preliminary
hearing will not be reported."
"4. The non-technical aspects of the testimony of Dr. Miles
Foster may be reported within the guidelines and at the careful
discretion of the press. The testimony of this witness dealing with
technical subjects, tests or investigations performed or the
results thereof, or his opinions or conclusions as a result of such
tests or investigations will not be reported."
"5. The general physical facts found at the scene of the crime
may be reported within the guidelines and at the careful discretion
of the press. However, the identity of the person or persons
allegedly sexually assaulted or the details of any alleged assault
by the defendant will not be reported."
"6. The exact nature of the limitations of publicity as entered
by this order will not be reported. That is to say, the fact of the
entering of this order limiting pretrial publicity and the adoption
of the Bar-Press Guidelines may be reported, but specific reference
to confessions, statements against interest, witnesses or type of
evidence to which this order will apply will not be reported."
An additional portion of the order relating to the press'
accommodations in the courtroom and the taking of photographs in
the courthouse was not contested below, and is not before this
Court. The full order, including its references to confessions, was
read in open court.
[
Footnote 2/5]
MR. JUSTICE BLACKMUN's view of the burden of proof for imposing
such restraints was as follows:
"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."
423 U.S. at
423 U. S.
1333.
[
Footnote 2/6]
The in-chambers opinion also stayed any prohibition concerning
reporting of the pending application for relief in the Supreme
Court of Nebraska, but permitted a prohibition of reporting of the
two in-chambers opinions to the extent they contained "facts
properly suppressed."
Id. at 1334. Nothing in the opinion
was 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."
Ibid.
[
Footnote 2/7]
Two justices of the Supreme Court of Nebraska dissented on
jurisdictional grounds similar to those that formed the predicate
for that court's earlier per curiam statement, and two other
justices who agreed with those jurisdictional claims nevertheless
joined the per curiam to avoid a procedural deadlock.
[
Footnote 2/8]
These rulings resulted in the paradoxical situation that
"[p]etitioners could have ignored the [County Court's] order"
because that court had not obtained personal jurisdiction over them
and because "courts have no general power in any kind of case to
enjoin or restrain 'everybody,'"
State v. Simants, 194
Neb. 783, 795,
236 N.W.2d
794, 802 (1975). However, because they had improperly
intervened in the criminal case (from which they could not appeal),
a prior restraint could issue against them. Indeed, the court noted
that the prior restraint "applies only to [petitioners]" and not to
any other organs of the media.
Id. at 788, 236 N.W.2d at
798.
[
Footnote 2/9]
See 427
U.S. 539fn2/21|>n. 21,
infra.
[
Footnote 2/10]
The evidence relied on by the Nebraska Supreme Court included
the following: the fact that, before entry of the restrictive
order, certain newspapers had reported information "which, if true,
tended clearly to connect the accused with the slayings," 194 Neb.
at 796, 236 N.W.2d at 802; the fact that "counsel for the media
stated that it is already doubtful that an unbiased jury can be
found to hear the Simants case in Lincoln County,"
id. at
797, 236 N.W.2d at 803; the fact that Nebraska law required the
trial to transpire within six months of the date the information
was filed,
ibid.; the relatively small population of the
counties to which Nebraska law would permit a change of venue,
id. at 797-798, 236 N.W.2d at 803; the "mere heinousness
or enormity of a crime"; and "the trial court's own knowledge of
the surrounding circumstances,"
id. at 798, 236 N.W.2d at
803.
[
Footnote 2/11]
The Nebraska Supreme Court also "adopted" American Bar
Association Project on Standards for Criminal Justice, Fair Trial
and Free Press § 3.1, Pretrial Hearings (App.Draft 1968) which
provides for exclusion of the press and public from pretrial
hearings under certain circumstances, and remanded the case to the
District Court to consider any applications to close future
pretrial proceedings under that standard. The constitutionality of
closing pretrial proceedings under specific conditions is not
before us, and is a question on which I would intimate no
views.
[
Footnote 2/12]
JUSTICES STEWART and MARSHALL and I noted that we would have
granted the application for a stay.
[
Footnote 2/13]
JUSTICES STEWART and MARSHALL and I dissented from denial of the
motions to expedite and to grant a stay; MR. JUSTICE WHITE
dissented from the latter motion to the extent the state courts had
prohibited the reporting of information publicly disclosed during
the preliminary hearing in the underlying criminal proceeding.
Although the order of the Nebraska Supreme Court expired when
the jury in
State v. Simants was impaneled and sequestered
on January 7, 1976, this case is not moot. This is a paradigmatic
situation of "short term orders, capable of repetition, yet evading
review."
E.g., Southern Pacific Terminal Co. v. ICC,
219 U. S. 498,
219 U. S. 515
(1911). It is evident that the decision of the Nebraska Supreme
Court will subject petitioners to future restrictive orders with
respect to pretrial publicity, and that the validity of these
orders, which typically expire when the jury is sequestered,
generally cannot be fully litigated within that period of time.
See, e.g., Weinstein v. Bradford, 423 U.
S. 147,
423 U. S. 149
(1975).
See also Carroll v. Princess Anne, 393 U.
S. 175,
393 U. S.
178-179 (1968).
Counsel informs us that Simants has subsequently been tried,
convicted, and sentenced to death, and that his appeal is currently
pending in the Nebraska Supreme Court. Simants' defense rested on a
plea of not guilty by reason of insanity, and all of the
information which remained unreported during the pretrial period
was ultimately received in evidence. The trial judge also declined
to close further pretrial hearings, granted Simmants' requests to
sequester the jury and conduct
voir dire with no more than
four prospective jurors present at one time, and denied Simants'
request for a change of venue. A
Jackson
v. Denno (
378 U.S.
368 (1964)) hearing and the first day of
voir dire
were also closed to the public. Petitioners have challenged the
latter rulings, and that litigation is still pending in the state
courts.
[
Footnote 2/14]
The precise scope of these terms is not, of course,
self-evident. Almost any statement may be an "admission against
interest" if, for example, it can be shown to be false, and thus
destructive of the accused's credibility. This would even be true
with respect to exculpatory statements made by an accused, such as
those relating to alleged alibi defenses. Similarly, there is
considerable vagueness in the phrase "strongly implicative" of the
accused's guilt. The Nebraska Supreme Court did not elaborate on
its meaning, and counsel for the State suggests it only covers the
existence of the accused's prior criminal record, if any. Tr. of
Oral Arg. 54. Others might view the phrase considerably more
expansively.
See supra at
427 U. S. 581;
cf. 194 Neb. at 789-790, 236 N.W.2d at 799. Indeed, even
the fact the accused was indicated might be viewed as "strongly
implicative" of his guilt by reporters not schooled in the law, and
the threat of contempt for transgression of such directives would
thus tend to self-censorship even as to materials not intended to
be covered b the restrictive order.
[
Footnote 2/15]
Of course, even if the press cannot be enjoined from reporting
certain information, that does not necessarily immunize it from
civil liability for libel or invasion of privacy or from criminal
liability for transgressions of general criminal laws during the
course of obtaining that information.
[
Footnote 2/16]
The only criticism of this statement is that it does not embrace
all of the protection accorded freedom of speech and of the press
by the First Amendment.
See, e.g., Near v. Minnesota ex rel.
Olson, 283 U.S. at
283 U. S.
714-715.
[
Footnote 2/17]
Thus the First Amendment constitutes a direct repudiation of the
British system of licensing.
See, e.g., Near v. Minnesota ex
rel. Olson, supra at
283 U. S.
713-714;
Grosjean v. American Press Co.,
297 U. S. 233,
297 U. S.
245-250 (1936);
Bridges v. California,
314 U. S. 252,
314 U. S.
263-264 (1941);
Wood v. Georgia, 370 U.
S. 375,
370 U. S. 384,
and n. 5 (1962).
[
Footnote 2/18]
See 427
U.S. 539fn2/33|>n. 33,
infra; supra at
427 U. S.
582-583.
[
Footnote 2/19]
The rarity of prior restraint cases of any type in this Court's
jurisprudence has also been noted.
See, e.g., New York Times
Co. v. United States, 403 U.S. at
403 U. S. 733;
Near v. Minnesota ex rel. Olson, 283 U.S. at
283 U. S. 718
("The fact that, for approximately one hundred and fifty years,
there has been almost an entire absence of attempts to impose
previous restraints upon publications relating to the malfeasance
of public officers is significant of the deep=seated conviction
that such restraints would violate constitutional right").
[
Footnote 2/20]
The Nebraska Supreme Court denigrated what it termed the
"extremist and absolutist" position of petitioners for assuming
that "each and every exercise of freedom of the press is equally
important" and that "there can be no degree of values for the
particular right in which the absolutist has a special interest."
194 Neb. at 799, 800, 236 N.W.2d at 804. This seriously
mischaracterizes petitioners' contentions, for petitioners do not
assert that First Amendment freedoms are paramount in all
circumstances. For example, this case does not involve the question
of when, if ever, the press may be held in contempt subsequent to
publication of certain material,
see Wood v. Georgia,
370 U. S. 375
(1962);
Craig v. Harney, 331 U. S. 367,
331 U. S. 376
(1947);
Pennekamp v. Florida, 328 U.
S. 331 (1946);
Bridges v. California,
314 U. S. 252
(1941). Nor does it involve the question of damages actions for
malicious publication of erroneous material concerning those
involved in the criminal justice system,
see New York Times Co.
v. Sullivan, 376 U. S. 254
(1964).
See also Time, Inc. v. Firestone, 424 U.
S. 448 (1976);
Gertz v. Robert Welch, Inc.,
418 U. S. 323
(1974). And no contention is made that the press would be immune
from criminal liability for crimes committed in acquiring material
for publication. However, to the extent petitioners take a forceful
stand against the imposition of any prior restraints on
publication, their position is anything but "extremist," for the
history of the press under our Constitution has been one in which
freedom from prior restraint is all but absolute.
[
Footnote 2/21]
One can understand the reasons why the four prior restraint
orders issued in this case. The crucial importance of preserving
Sixth Amendment rights was obviously of uppermost concern, and the
question had not been definitively resolved in this Court. Our
language concerning the "presumption" against prior restraints
could have been misinterpreted to condone an
ad hoc
balancing approach, rather than merely to state the test for
assessing the adequacy of procedural safeguards.and for determining
whether the high burden of proof had been met in a case falling
within one of the categories that constitute the exceptions to the
rule against prior restraints. Indeed, in
Branzburg v.
Hayes, 408 U. S. 665
(1972), there was even an intimation that such restraints might be
permissible, since the Court stated that
"[n]ewsmen have no constitutional right of access to the scenes
of crime or disaster when the general public is excluded, and
they may be prohibited from attending or publishing information
about trials if such restrictions are necessary to assure a
defendant a fair trial before an impartial tribunal."
Id. at
408 U. S.
684-685 (emphasis supplied). However, the Court in
Branzburg had taken pains to emphasize that the case,
which presented the question whether the First Amendment accorded a
reporter a testimonial privilege for an agreement not to reveal
facts relevant to a grand jury's investigation of a crime or the
criminal conduct of his source, did not involve any "prior
restraint or restriction on what the press may publish."
Id. at
408 U. S. 681.
It was evident from the full passage in which the sentence
appeared, which focused on the fact that there is no
"constitutional right of special access [by the press] to
information not available to the public generally,"
id. at
408 U. S. 684,
that the passage is best regarded as indicating that, to the extent
newsmen are properly excluded from judicial proceedings, they would
probably be unable to report about those proceedings.
See
generally id. at
408 U. S.
683-685.
See also id. at
408 U. S. 691
(decision "involves no restraint on what newspapers may publish or
on the type or quality of information reporters may seek to
acquire");
Pell v. Procunier, 417 U.
S. 817,
417 U. S.
833-834 (1974). It is clear that the passage was not
intended to decide the important question presented by this case.
In any event, in light of my views respecting prior restraints, it
should be unmistakable that the First Amendment stands as an
absolute bar even to the imposition of interim restraints on
reports or commentary relating to the criminal justice system, and
that to the extent anything in
Branzburg could be read as
implying a different result, I think that it should be disapproved.
Cf. New York Times Co. v. United States, supra at
403 U. S.
724-725 (BRENNAN, J., concurring).
[
Footnote 2/22]
It is suggested that prior restraints are really only necessary
in "small towns," since media saturation would be more likely and
incriminating materials that are published would therefore probably
come to the attention of all inhabitants. Of course, the smaller
the community, the more likely such information would become
available through rumors and gossip, whether or not the press is
enjoined from publication. For example, even with the restrictive
order in the
Simants case, all residents of Sutherland had
to be excluded from the jury. Indeed, the media in such situations
could help dispel erroneous conceptions circulating among the
populace. And the smaller the community, the more likely there will
be a need for a change of venue in any event when a heinous crime
is committed. There is, in short, no justification for conditioning
the scope of First Amendment protection the media will receive on
the size of the community they serve.
[
Footnote 2/23]
Some exposure to the facts of a case need not, under prevailing
law concerning the contours of the Sixth Amendment right to an
impartial jury, disqualify a prospective juror or render him
incapable of according the accused a fair hearing based solely on
the competent evidence adduced in open court.
"[E]xposure to information about a state defendant's prior
convictions or to news accounts of the crime with which he is
charged [does not] alone presumptively deprive the defendant of due
process."
Murphy v. Florida, 421 U. S. 794,
421 U. S. 799
(1975).
See also, e.g., id. at
421 U. S. 800,
and n. 4;
Beck v. Washington, 369 U.
S. 541,
369 U. S.
555-558 (1962);
Irvin v. Dowd, 366 U.
S. 717,
366 U. S.
722-723 (1961);
Reynolds v. United States,
98 U. S. 145,
98 U. S.
165-156 (1879).
[
Footnote 2/24]
Of course, judges accepting guilty pleas must guard against the
danger that pretrial publicity has effectively coerced the
defendant into pleading guilty.
[
Footnote 2/25]
Cf. Stroble v. California, 343 U.
S. 181,
343 U. S. 195
(1952). For example, all of the material that was suppressed in
this case was eventually admitted at Simants' trial. Indeed, even
if Simants' statements to police officials had been deemed
involuntary and thus suppressed, no one has suggested that
confessions or statements against interest made by an accused to
private individuals, for example, would be inadmissible.
[
Footnote 2/26]
Failure of the trial judge to take such measures was a
significant factor in our reversals of the convictions in
Sheppard v. Maxwell, 384 U. S. 333
(1966), and
Estes v. Texas, 381 U.
S. 532 (1965).
[
Footnote 2/27]
A significant component of prejudicial pretrial publicity may be
traced to public commentary on pending cases by court personnel,
law enforcement officials, and the attorneys involved in the case.
In
Sheppard v. Maxwell, supra, we observed that
"the trial court might well have proscribed extrajudicial
statements by any lawyer, party, witness, or court official which
divulged prejudicial matters."
384 U.S. at
384 U. S. 361.
See also id. at
384 U. S. 360
("[T]he judge should have further sought to alleviate this problem
[of publicity that misrepresented the trial testimony] by imposing
control over the statements made to the news media by counsel,
witnesses, and especially the Coroner and police officers");
id. at
384 U. S. 359,
384 U. S. 363.
As officers of the court, court personnel and attorneys have a
fiduciary responsibility not to engage in public debate that will
redound to the detriment of the accused or that will obstruct the
fair administration of justice. It is very doubtful that the court
would not have the power to control release of information by these
individuals in appropriate cases,
see In re Sawyer,
360 U. S. 622
(1959), and to impose suitable limitations whose transgression
could result in disciplinary proceedings.
Cf. New York Times
Co. v. United States, 403 U.S. at
403 U. S.
728-730 (STEWART, J., joined by WHITE, J., concurring).
Similarly, in most cases, courts would have ample power to control
such actions by law enforcement personnel.
[
Footnote 2/28]
Excessive delay, of course, would be impermissible in light of
the Sixth Amendment right to a speedy trial.
See, e.g., Barker
v. Wingo, 407 U. S. 514
(1972). However, even short continuances can be effective in
attenuating the impact of publicity, especially as other news
crowds past events off the front pages. And somewhat substantial
delays designed to ensure fair proceedings need not transgress the
speedy trial guarantee.
See Groppi v. Wisconsin,
400 U. S. 505,
400 U. S. 510
(1971);
cf. 18 U.S.C. § 3161(h)(8) (1970 ed., Supp.
IV).
[
Footnote 2/29]
In
Rideau v. Louisiana, 373 U.
S. 723 (1963), we held that it was a denial of due
process to deny a request for a change of venue that was necessary
to preserve the accused's Sixth Amendment rights. And state
statutes may not restrict changes of venue if to do so would deny
an accused a fair trial.
Groppi v. Wisconsin, supra.
[
Footnote 2/30]
To be sure, as the Supreme Court of Nebraska contended, society
would be paying a heavy price if an individual who is in fact
guilty must be released. But in no decision of this Court has it
been necessary to release an accused on the ground that an
impartial jury could not be assembled; we remanded for further
proceedings, assuming that a retrial before an impartial forum was
still possible.
As to the contention that pretrial publicity may result in
conviction of an innocent person, surely the trial judge has
adequate means to control the
voir dire, the conduct of
trial, and the actions of the jury, so as to preclude that untoward
possibility. Indeed, where the evidence presented at trial is
insufficient, the trial judge has the responsibility not even to
submit the case to the jury.
[
Footnote 2/31]
Although various committees that have recently analyzed the
"Free Press/Fair Trial" issue have differed over the devices that
they believed could properly be employed to ensure fair trials,
they have unanimously failed to embrace prior restraints on
publication as within the acceptable methods.
See, e.g.,
Report of the Judicial Conference Committee on the Operation of the
Jury System, "Free Press-Fair Trial" Issue, 45 F.R.D. 396, 401-402
(1968) (Judicial Conference Committee headed by Judge Kaufman);
Special Committee on Radio, Television, and the Administration of
Justice of the Association of the Bar of the City of New York,
Freedom of the Press and Fair Trial: Final Report with
Recommendations 10-11 (1967); American Bar Association Project on
Standards for Criminal Justice, Fair Trial and Free Press 68-73
(App.Draft 1968);
see also American Bar Association, Legal
Advisory Committee on Fair Trial and Free Press, Recommended Court
Procedure to Accommodate Rights of Fair Trial and Free Press 7
(Rev. Draft, Nov.1975).
[
Footnote 2/32]
I include these additional considerations, many of which apply
generally to any system of prior restraints, only because of the
fundamentality of the Sixth Amendment right invoked as the
justification for imposition of the restraints in this case; the
fact that there are such overwhelming reasons for precluding any
prior restraints even to facilitate preservation of such a
fundamental right reinforces the longstanding constitutional
doctrine that there is effectively an absolute prohibition against
prior restraints of publication of
any material otherwise
covered within the meaning of the free press guarantee of the First
Amendment.
See supra at
427 U. S.
588-594.
[
Footnote 2/33]
For example, in addition to numerous comments about
accommodating First and Sixth Amendment rights in each case, the
court observed:
"That the press be absolutely free to report corruption and
wrongdoing, actual or apparent, or incompetence of public officials
of whatever branch of government is vastly important to the future
of our state and nation cannot be denied as anyone who is familiar
with recent events must be well aware. Prior restraint of the
press, however slight, in such instances is unthinkable.
Near
v. Minnesota ex rel. Olson, supra. In these instances and many
others no preferred constitutional rights collide."
"In cases where equally important constitutional rights may
collide then it would seem that, under some circumstances, rare
though they will be, that an accommodation of some sort must be
reached."
194 Neb. at 798-799, 236 N.W.2d at 803-804. Thus, at least when
reporting of information "strongly implicative" of the accused also
reflects on official actions, a particularized analysis of the need
to disseminate the information is contemplated even by those who
believe prior restraints might sometimes be justifiable with
respect to commentary on the criminal justice system.
[
Footnote 2/34]
Prior restraints may also effectively curtail the incentives for
independent investigative work by the media which could otherwise
uncover evidence of guilt or exonerating evidence that nevertheless
threatens the Sixth Amendment rights of others by strongly
implicating them in illegal activity.
[
Footnote 2/35]
Indeed, to the extent media notified of the restraint
proceedings choose not to appear in light of the cost and time
potentially involved in overturning any restraint ultimately
imposed, there will be no presentation of the countervailing public
interest in maintaining a free flow of information, as opposed to
the interests of prosecution, defense, and judges in maintaining
fair proceedings.
[
Footnote 2/36]
For example, in this case the restraints only applied to
petitioners, who improperly intervened in the criminal case, and
thus subjected themselves to the court's jurisdiction. The numerous
amici, however, were not subject to the restraining orders
and were free to disseminate prejudicial information in the same
areas in which petitioners were precluded from doing so.
[
Footnote 2/37]
Cf. New York Times Co. v. United States, 403 U.S. at
403 U. S. 733
(WHITE, J., joined by STEWART, J., concurring).
[
Footnote 2/38]
In this case, prior restraints were in effect for over 11 weeks,
and yet by the time those restraints expired, appellate review had
not yet been exhausted. Moreover, appellate courts might not accord
these cases the expedited hearings they so clearly would merit.
See Tr. of Oral Arg. 43-48.
[
Footnote 2/39]
As we observed in
Bridges v. California, 314 U.S. at
314 U. S. 268,
which held that the convictions of a newspaper publisher and editor
for contempt, based on editorial comment concerning pending cases,
were violative of the First Amendment:
"It must be recognized that public interest is much more likely
to be kindled by a controversial event of the day than by a
generalization, however penetrating, of the historian or scientist.
Since they punish utterances made during the pendency of a case,
the judgments below therefore produce their restrictive results at
the precise time when public interest in the matters discussed
would naturally be at its height. Moreover, the ban is likely to
fall not only at a crucial time but upon the most important topics
of discussion."
"No suggestion can be found in the Constitution that the freedom
there guaranteed for speech and the press bears an inverse ratio to
the timeliness and importance of the ideas seeking expression. Yet,
it would follow as a practical result of the decisions below that
anyone who might wish to give public expression to his views on a
pending case involving no matter what problem of public interest,
just at the time his audience would be most receptive, would be as
effectively discouraged as if a deliberate statutory scheme of
censorship had been adopted. . . ."
"This unfocussed threat is, to be sure, limited in time,
terminating as it does upon final disposition of the case. But this
does not change its censorial quality. An endless series of
moratoria on public discussion, even if each were very short, could
hardly be dismissed as an insignificant abridgment of freedom of
expression. And to assume that each would be short is to overlook
the fact that the 'pendency' of a case is frequently a matter of
months or even years rather than days or weeks."
Id. at
314 U. S. 269.
See also id. at
314 U. S.
277-278;
Carroll v. Princess Anne, 393 U.S. at
393 U. S. 182;
Wood v. Georgia, 370 U.S. at
370 U. S. 392;
Pennekamp v. Florida, 328 U.S. at
328 U. S.
346-347.
[
Footnote 2/40]
The editor and publisher of
amicus Anniston (Ala.) Star
poignantly depicted in a letter to counsel the likely plight of
such small, independent newspapers if the power to impose prior
restraints against pretrial publicity were recognized:
"Small town dailies would be the unknown, unseen and friendless
victims if the Supreme Court upholds the order of Judge Stuart. If
the already irresistible powers of the judiciary are swollen by
absorbing an additional function, that of government censor, the
chilling effect upon vigorous public debate would be deepest in the
thousands of small towns where independent, locally owned, daily
and weekly newspapers are published."
"Our papers are not read in the White House, the Congress, the
Supreme Court or by network news executives. The causes for which
we contend and the problems we face are invisible to the world of
power and intellect. We have no in-house legal staff. We retain no
great, national law firms. We do not have spacious profits with
which to defend ourselves and our principles, all the way to the
Supreme Court, each and every time we feel them to be under
attack."
"Our only alternative is obedient silence. You hear us when we
speak now. Who will notice if we are silenced? The small town press
will be the unknown soldier of a war between the First and Sixth
Amendments, a war that should never have been declared, and can
still be avoided."
"Only by associating ourselves in this brief with our stronger
brothers are we able to raise our voices on this issue at all, but
I am confident that the Court will listen to us because we
represent the most defenseless among the petitioners."
Brief for Washington Post Co.
et al. as
Amici
Curiae 31-32.
[
Footnote 2/41]
There is also the danger that creation of a second "narrow"
category of exceptions to the rule against prior restraints would
be interpreted as a license to create further "narrow" exceptions
when some "justification" for overcoming a mere "presumption" of
unconstitutionality is presented. Such was the reasoning which
eventuated in this litigation in the first place.
See
supra at
427 U. S.
582-583.
MR. JUSTICE STEVENS, concurring in the judgment.
For the reasons eloquently stated by MR. JUSTICE BRENNAN, I
agree that the judiciary is capable of protecting the defendant's
right to a fair trial without enjoining the press from publishing
information in the public domain, and that it may not do so.
Whether the same absolute protection would apply no matter how
shabby or illegal the means by which the information is obtained,
no matter how serious an intrusion on privacy might be involved, no
matter how demonstrably false the information might be, no matter
how prejudicial it might be to the interests of innocent persons,
and no matter how perverse the motivation for publishing it, is a
question I would not answer without further argument.
See
Ashwander v. TVA, 297 U. S. 288,
297 U. S.
346-347 (Brandeis, J., concurring). I do, however,
subscribe to most of what MR. JUSTICE BRENNAN says and, if ever
required to face the issue squarely, may well accept his ultimate
conclusion.