in the presence of the court

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. 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. 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. 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. The County Court heard oral argument but took no evidence. On October 22 the County Court granted the motion and entered an order. The order prohibited everyone in attendance from releasing for public dissemination any testimony given or evidence adduced. It also required members of the press to observe the Nebraska Bar-Press Guidelines. Simants' preliminary hearing was held the same day, open to the public but subject to the order. 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. Petitioners, several press and broadcast associations, publishers, and individual reporters, moved on October 23 for leave to intervene in the District Court. They asked that the restrictive order be vacated. The District Court conducted a hearing at which the County Judge testified and newspaper articles about the case were admitted in evidence. On October 27 the District Court granted the motion to intervene and entered its own restrictive order. The order applied only until the jury was impaneled. 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. Four days later petitioners asked the District Court to stay its order. They applied to the Nebraska Supreme Court for a writ of mandamus, a stay, and an expedited appeal. 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. 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. 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. The Supreme Court of the United States granted certiorari. 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. The restrictive order 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.

Frank W. Snepp III entered into employment with the Central Intelligence Agency in 1968. As an express condition of that employment, he executed an agreement promising that he would not publish any information or material relating to the Agency without specific prior approval. Upon the eve of his departure from the Agency in 1976, Snepp executed a termination secrecy agreement. That document reaffirmed his obligation never to reveal any classified information. It also barred disclosure of any information concerning intelligence or CIA that has not been made public by the CIA without the express written consent of the Director of Central Intelligence or his representative. Based on his experiences as a CIA agent, Snepp published a book about CIA activities in South Vietnam without submitting the manuscript to the Agency for prepublication review. At the time of suit, Snepp had already received about $60,000 in advance payments. His contract with his publisher provided for royalties and other potential profits. The United States brought suit against Snepp in the United States District Court for the Eastern District of Virginia. The suit sought a declaration that he had breached the contract, an injunction requiring him to submit future writings for prepublication review, and an order imposing a constructive trust on all profits that Snepp might earn from publishing the book. The District Court found that Snepp had willfully, deliberately and surreptitiously breached his position of trust with the CIA and the 1968 secrecy agreement by publishing his book without submitting it for prepublication review. The court also found that publication of the book had caused the United States irreparable harm and loss. The Court of Appeals for the Fourth Circuit accepted the findings of the District Court and agreed that Snepp had breached a valid contract. It upheld the injunction against future violations of Snepp's prepublication obligation but concluded that the record did not support imposition of a constructive trust. The Supreme Court granted the petitions for certiorari filed by both Snepp and the United States to correct the judgment from which both parties seek relief.