Supreme court of the united states

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Free Press > Pretrial Publicity

[HN9] Truthful reports of public judicial proceedings have been afforded special protection against subsequent punishment.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Free Press > General Overview

Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Prior Restraint

[HN10] 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.

SUMMARY:

In a case involving the murder of six persons, the District Court of Lincoln County, Nebraska, issued an order which applied only until the jury was impaneled, and, as modified by the Nebraska Supreme Court in original mandamus proceedings instituted by the news media (194 Neb 783, 236 NW2d 794), restrained them from publishing or broadcasting accounts of confessions or admissions made by the accused or facts strongly implicating him.

On certiorari, the United States Supreme Court reversed the judgment below. In an opinion by Burger, Ch. J., expressing the views of five members of the court, it was held that (1) the case was not rendered moot by the impaneling of the jury after the court's grant of certiorari, and (2) the challenged order violated the First Amendment's guaranty of free press where the record did not show that alternatives to a prior restraint on the news media would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary, and the court could not conclude that the restraining order would serve its intended purpose. The court also held that the order prohibiting reporting or commentary on judicial proceedings held in public was clearly invalid, and that to the extent to which it prohibited publication based on information gained from other sources, the heavy burden imposed as a condition to securing a prior restraint was not met.

White, J., concurring, expressed the view that the court should at some point announce a more general rule and avoid the interminable litigation that its failure to do so would necessarily entail.

Powell, J., also concurring, emphasized the unique burden that rests upon the party who undertakes to show the necessity for prior restraint on pretrial publicity.

Brennan, J., joined by Stewart and Marshall, JJ., concurring in the judgment, would hold that resort to prior restraints on the freedom of the press is a constitutionally impermissible method for enforcing an accused's constitutional right to a fair trial by a jury.

Stevens, J., also concurring in the judgment, expressed the view that, if ever required to face the issue squarely, he might well accept the ultimate conclusion reached in the concurring opinion of Brennan, J.