427 U.S. 539 (1976)
On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Nebraska, a town of about 850 people.1 Police released the description of a suspect, Erwin Charles Simants, to the reporters who had hastened to the scene of the crime.2 Simants was arrested and arraigned in Lincoln County Court the following morning.3
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.4 This request responded to the mass coverage by news media and the reasonable likelihood of prejudicial news that would make difficult the impaneling of an impartial jury.5 The County Court heard oral argument but took no evidence.6
On October 22 the County Court granted the motion and entered an order.7 The order prohibited everyone in attendance from releasing for public dissemination any testimony given or evidence adduced.8 It also required members of the press to observe the Nebraska Bar-Press Guidelines.9 Simants' preliminary hearing was held the same day, open to the public but subject to the order.10 The County Court bound the defendant over for trial to the State District Court on charges that included commission of the murders in the course of a sexual assault.11
Petitioners, several press and broadcast associations, publishers, and individual reporters, moved on October 23 for leave to intervene in the District Court.12 They asked that the restrictive order be vacated.13 The District Court conducted a hearing at which the County Judge testified and newspaper articles about the case were admitted in evidence.14 On October 27 the District Court granted the motion to intervene and entered its own restrictive order.15 The order applied only until the jury was impaneled.16 It specifically prohibited reporting of the existence or contents of a confession Simants had made to law enforcement officers, statements Simants had made to other persons, the contents of a note he had written the night of the crime, aspects of the medical testimony at the preliminary hearing concerning the sexual assault, and the identity of the victims of the alleged sexual assault.17
Four days later petitioners asked the District Court to stay its order.18 They applied to the Nebraska Supreme Court for a writ of mandamus, a stay, and an expedited appeal.19 The Nebraska Supreme Court heard oral argument on November 25 and on December 1 issued a per curiam opinion that modified the District Court's order.20 The modified order prohibited reporting of only three matters: the existence and nature of any confessions or admissions made by the defendant to law enforcement officers, any confessions or admissions made to any third parties except members of the press, and other facts strongly implicative of the accused.21 The Nebraska Supreme Court remanded the case to the District Judge for reconsideration of whether pretrial hearings should be closed to the press and public.22
The Supreme Court of the United States granted certiorari.23 The parties informed the Court that Simants had been convicted of murder and sentenced to death, with his appeal pending in the Nebraska Supreme Court.24 The restrictive order expired by its own terms when the jury was impaneled on January 7, 1976.25 There were no restraints on publication once the jury was selected.26
Whether the entry of a restrictive order by Nebraska courts prohibiting the press from publishing accounts of confessions, admissions, or other facts strongly implicative of the accused in a pending murder trial violated the constitutional guarantee of freedom of the press?27
Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.28 The presumption against prior restraints is heavy, and the burden of justifying such restraints is heavy as well.29 The validity of the orders is measured by the clear and present danger test. Under this test, the record must show that publication would have produced an impact on the trial so substantial as to constitute a clear and present danger to the fairness of the trial.30
Yes. The record does not demonstrate that publication of the information would have created a clear and present danger to the fairness of the trial.31 The trial judge made no findings that alternative measures would not have protected the defendant's rights.32 There was no demonstration on the record that the publication of the information would have so prejudiced the proceedings that the defendant could not have received a fair trial.33
The Nebraska courts relied on the clear and present danger test but applied it in a manner that does not meet the heavy burden required to justify prior restraint.34 The record contains no evidence that the publication of the information would have produced an impact on the trial so substantial as to constitute a clear and present danger to the fairness of the trial.35 The orders were not supported by sufficient evidence to overcome the presumption against prior restraints.36 The First Amendment prohibits the state from imposing prior restraints on the press in these circumstances.37
The orders restraining the publication of news about the defendant constituted an unconstitutional prior restraint on the press in violation of the First Amendment.38
Related opinions on this issue
Joined by Stewart And Marshall, Jj.
Justice Brennan joined the opinion of the Court.39 He wrote separately to emphasize that prior restraints on the press are presumptively unconstitutional and can be justified only in the most extraordinary circumstances.40 The record in this case falls far short of demonstrating the kind of clear and present danger that would be required to justify the prior restraint imposed here.41
The guarantees of the First Amendment do not permit the state to suppress speech to protect other constitutional rights unless the record demonstrates that the publication would create a clear and present danger to those rights.42 No such showing has been made here.43
Brennan stressed that 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.44 He concluded that resort to prior restraints on the freedom of the press is a constitutionally impermissible method for enforcing the right to a fair trial.45 Judges have at their disposal a broad spectrum of devices for ensuring that fundamental fairness is accorded the accused.46 This approach avoids 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.
Although joining the opinion of the Court, Justice Powell wrote separately 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.47 In his 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.48 This requires a showing that there is a clear threat to the fairness of trial, such a threat is posed by the actual publicity to be restrained, and no less restrictive alternatives are available.49
Powell believed these factors are sufficiently addressed in the Court's opinion to demonstrate beyond question that the prior restraint here was impermissible.50
Whether the dispute remained justiciable after the restrictive order expired upon jury impanelment and after the defendant was convicted at trial?51
Our jurisdiction under Art. III, § 2, of the Constitution extends only to actual cases and controversies.52 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.53
Yes. The controversy between the parties to this case is capable of repetition in two senses.54 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.55 Second, the State of Nebraska is a party to this case.56
The Nebraska Supreme Court's decision authorizes state prosecutors to seek restrictive orders in appropriate cases.57 The dispute between the State and the petitioners who cover events throughout the State is thus capable of repetition.58 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.59 The order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976.60
There were no restraints on publication once the jury was selected. There are now no restrictions on what may be spoken or written about the Simants case.61 We therefore conclude that this case is not moot, and proceed to the merits.62
The case is not moot and the Court has jurisdiction to decide the merits.63
Related opinions on this issue
Justice White concurred in the judgment of the Court.64 He noted that the prior restraint imposed in this case cannot be squared with the First Amendment because the state has not met the heavy burden required to justify such a restraint on the press.65 Technically there is no need to go farther than the Court does to dispose of this case, and he joined the Court's opinion.66
White added that for the reasons which the Court itself canvasses there is grave doubt in his mind whether orders with respect to the press such as were entered in this case would ever be justifiable.67 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.68
Justice Stevens concurred in the opinion of the Court.69 He stated that the Nebraska courts' orders constituted an unconstitutional prior restraint on the press.70 The First Amendment does not permit the state to suppress the publication of information about a criminal case in the absence of a showing that the publication would create a clear and present danger to the fairness of the trial.71
No such showing was made in this case.72 For the reasons eloquently stated by Justice Brennan, Stevens agreed 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.73 Whether the same absolute protection would apply no matter how shabby or illegal the means by which the information is obtained is a question he would not answer without further argument.74