Nebraska Press Association v. Stuart, Supreme Court Case

Nebraska Press Association v. Stuart, Supreme Court Case

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In Nebraska Press Association v. Stuart (1976), the U.S. Supreme Court addressed a conflict between two constitutional rights: freedom of the press and the right to a fair trial. The Court struck down a gag order, finding that pre-trial media coverage does not, on its own, guarantee an unfair trial.

Fast Facts: Nebraska Press Association v. Stuart

  • Case Argued: April 19, 1976
  • Decision Issued: June 30, 1976
  • Petitioner: Nebraska Press Association et. al.
  • Respondent: Hugh Stuart, Judge, District Court of Lincoln County, Nebraska et al.
  • Key Questions: Can a judge issue a gag order prior to legal proceedings in the interest of ensuring a fair trial?
  • Unanimous Decision: Justices Burger, Brennan, Stuart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens
  • Ruling: Restricting media coverage of a trial prior to jury selection is unconstitutional under the First Amendment. Respondents could not show that limiting publicity would safeguard jury impartiality.

Facts of the Case

Police discovered the bodies of six people in relation to a violent sexual assault in a small Nebraska town in 1975. The alleged perpetrator, Erwin Charles Simants, was apprehended by police shortly after. The crime rocked the town, and its severity meant that media flocked to the courthouse.

The defendant's attorney and the prosecuting attorney asked the judge to reduce the level of media intensity prior to jury selection, out of concern that coverage might bias jury members. They specifically expressed concern about broadcasting information related to Simants' confession, potential medical testimony, and statements written by Simants in a note the night of the murder. The judge agreed that such information might bias future jury members and issued a gag order. Days later, members of the media including publishers, reporters, and press associations asked the court to remove the gag order.

The case eventually made its way up to the Nebraska Supreme Court, which sided with the initial judge who issued the order. Under New York Times v. U.S., the Nebraska Supreme Court argued that gag orders may be used in specific instances in which a person's right to a fair trial through an impartial jury is at risk. This, it found, was one of those instances. The gag order ended by the time the case reached the Supreme Court, but the justices, acknowledging that this would not be the last time that the right to free press and the right to a fair trial would be at odds, granted certiorari.


An attorney on behalf of Judge Stuart argued that First Amendment protections were not absolute. The judge appropriately balanced First and Sixth Amendment protections when granting the gag order, as it was limited in scope and duration in order to protect the defendant's right to a fair trial. In an extraordinary situation such as this, the court should be able to limit publicity prior to jury selection.

The Nebraska Press Association argued that the gag order, a form of prior restraint, was unconstitutional under the First Amendment. There was no guarantee that restricting media coverage would ensure a fair and impartial trial. There were other, more effective means to ensure that an impartial jury would be impaneled in Simants' case, the attorney argued.

Constitutional Issues

Can a court issue a gag order, suppressing freedom of the press, in order to protect a defendant's right to a fair trial? Can the Supreme Court rule on the legitimacy of the gag order, even if it had already expired?

Majority Opinion

Chief Justice Warren E. Burger delivered the unanimous decision, finding in favor of the Nebraska Press Association.

Justice Burger first stated that the expiration of the gag order did not prevent the Supreme Court from taking on the case. The Supreme Court has jurisdiction over "actual cases and controversies." The dispute between the press and the rights of the accused was “capable of repetition.” Simants' trial would not be the last court case to attract media attention, Justice Burger wrote.

Justice Burger noted that the issue in Nebraska Press Association v. Stuart was "as old as the Republic," but the speed of communication and "pervasiveness of the modern news media" had intensified the issue. Even the Founding Fathers, Justice Burger wrote, were aware of the conflict between press and a fair trial.

Relying on previous cases before the Court, Justice Burger determined that pre-trial publicity, no matter how extreme, does not inevitably result in an unfair trial. Justice Burger wrote that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."

There were other measures, short of a gag order, that Judge Stuart could have undertaken to ensure Simants' right to a fair trial, Justice Burger wrote. Some of those measures included moving the trial, delaying the trial, sequestering jurors, or instructing jurors to only consider facts presented in the courtroom.

If a judge wants to use prior restraint they should be able to demonstrate three things: the extent of the media coverage, a lack of any other means of ensuring a fair trial, and that a gag-order would be effective, the Court found.

Justice Burger added that by restraining the press, the gag order had allowed rumors and gossip to flourish in the small community. Those rumors, he wrote, could have been more damaging to Simants' trial than the press reports themselves.


In Nebraska Press Association v. Stuart, the Supreme Court upheld the importance of the freedom of the press. Though not a complete ban on prior restraint, the Court set a high bar, severely restricting the situations in which a gag order could be issued. This ensured that reporters and editors faced fewer pre-trial restrictions on publishing court-related material.


  • Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).
  • Larson, Milton R, and John P Murphy. “Nebraska Press Association v. Stuart - A Prosecutor 's View of Pre-Trial Restraints on the Press.” DePaul Law Review, vol. 26, no. 3, 1977, pp. 417-446., //
  • Hudson, David L. “Supreme Court Said No to Prior Restraints on Press 25 Years Ago.” Freedom Forum Institute, 28 Aug. 2001, //

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