or of the press. amend. I

CONSTITUTIONAL LAW-JuDICIAL RESTRAINT OF THE PRESS-Nebraska Press Ass'n v. Stuart.

INTRODUCTION

In the near future the United States Supreme Court will seekto resolve an apparent conflict between the first amendmentguarantee of a free press1 and the constitutional right to a fairtrial2 in review of Nebraska Press Association v. Stuart.3 Thiscase involves a series of restrictive orders (perjoratively called gagorders), operating directly on members of the news media, whichlimited their pretrial coverage of the multiple murder trial ofErwin Charles Simants.4 The general constitutional issue pre-

1. "Congress shall make no law ... abridging the freedom of speech,or of the press. . . ." U.S. CONST. amend. I.

2. "In all criminal prosecutions, the accused shall enjoy the right toa speedy and public trial, by an impartial jury of the State and districtwherein the crime shall have been committed. . . ." U.S. CONST. amend.VI. "No State shall make or enforce any law which shall abridge the privi-leges or immunities of citizens of the United 'States; nor shall any Statedeprive any person of life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equal protection of thelaws." U.S. CON sT. amend. XIV, § 1.

3. The case arises out of a rather complex procedural setting, andMr. Justice Blackmun in his capacity as Circuit Justice stated that the juris-dictional issue "is not without difficulty." Nebraska Press Ass'n v. Stuart,96 S. Ct. 251, 253-54 (Blackmun, Circuit Justice, 1975). In that opinion,Justice Blackmun granted a partial stay of the restrictive order issued byDistrict Judge Stuart on October 27, 1975, which stay later was refined bythe Nebraska Supreme Court. For the nature of the refinement and achronology up to December 1, 1975, see State v. Simants, 194 Neb. 783, 236N.W.2d 794 (1975). On an earlier occasion Justice Blackmun had denieda motion to stay the restrictive order without prejudice to the applicants,members of the news media, in order to allow the Nebraska Supreme Courtan opportunity to rule on the issue. See Nebraska Press Ass'n v. Stuart,96 S. Ct. 237 (Blackmun, Circuit Justice, Nov. 13, 1975). The Nebraska Su-preme Court set oral argument for November 25; Justice Blackmun foundthe delay by the state court excessive of tolerable limits, ergo, he granteda partial stay on November 20. Soon thereafter, before the Nebraska Su-preme Court issued its decision, the news media filed a motion to the fullSupreme Court to vacate that portion of the Blackmun order of November20 which did not stay the entire restrictive order. The motion to the fullSupreme Court was deferred. See Nebraska Press Ass'n v. Stuart, 96 S.Ct. 442 (1975). Finally, a petition for writ of certiorari to the SupremeCourt of Nebraska was granted; however, in the same memorandum opin-ion, a motion to expedite and application for stay were denied, with JusticesBrennan, Stewart, and Marshall dissenting. Justice White would grant thestay, in part, but deny the motion to expedite. See Nebraska Press Ass'nv. Stuart, 96 S. Ct. 557 (1975).

4. 194 Neb. at 784-86, 236 N.W.2d at 796-98.

CREIGHTON LAW REVIEW

sented is whether a significant and direct prior restraint onpretrial media reporting is permissible and, if so, under whatcircumstances.

Full agreement by the United States Supreme Court Justicesto a fair balance between the competing values of free press andfair trial, where important public and private interests lay on bothsides, seems most, uncertain.5 The purpose of this comment is notto predict the eventual outcome of the case in the United StatesSupreme Court, but to identify interests, principles, and standardswhich are germane in the confrontation crystallized in the NPA8

situation.The first part of this discussion is directed to' the facts

surrounding the crime and its attendant publicity. Secondly, thespecific restrictive orders arising out of the NPA litigation are out-lined. Attention then is turned to the definition of a standard toachieve an accommodation of the first and sixth amendment guar-antees. This approach necessarily entails inquiry into the meaningof terms such as "prejudicial publicity" and "impartial jury."Finally, since the least objectionable course should be charted whenpublicity threatens the administration of justice, consideration ofmeans other than direct prior restraint of the news media is appro-priate. Particular emphasis is placed on the alternatives designedto mitigate the potential harm from pretrial publicity which wereexamined by the Nebraska Supreme Court-change of venue, con-tinuance, and closed preliminary hearing.7

Since a determination that either the first or sixth amend-ment has priority over the other or that one is absolute seemsunlikely s an accommodation which best preserves both guaranteesmust rest largely on the totality of circumstances peculiar to thiscase.

CRIME AND NEWS

The setting for the crime was Sutherland, Nebraska, a ruralcommunity of about 840 persons situated in the western part of

5. See, e.g., Omaha World-Herald, Dec. 7, 1975, at 11-A, col. 1.6. The term "NPA" is used to refer collectively to the court decisions

set forth in the preceding footnotes.7. 194 Neb. at 797, 801-02, 236 N.W.2d at 803, 805-06.8. See, e.g., Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jack-

son, J., dissenting), where it is stated that the Constitution establishes noheirarchy of rights. See also New York Times Co. v. United States, 403U.S. 713 (1971) where the concurring opinions by Justices Black and Doug-las illustrate the absolutist view of the first amendment. This view hasnever been adopted by a majorityof the Supreme Court.,'

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the stateY At the northern end of this town was the home ofHenry Kellie, where on Saturday evening, October 18, 1975, Mr. andMrs. Kellie, their son, and three grandchildren, ages 10, 6, and 5,were shot to death. Starting with an anonymous telephone callfor ambulance services at approximately 9:00 p.m., one of the mostbrutal murders in Nebraska history started to unravel.'0 : Therescue squad found the six Kellies scattered throughout the smallhouse; all had been shot in the head at close range." Autopsieslater revealed that a first-degree sexual assault 1 2 had been per-petrated upon Mrs. Kellie and more than one of the children, bothbefore and after death.' 3 No sign of any struggle was reported,although several news accounts highlighted the fact that the 6-yearold girl was crouched in the corner of the living room as if shewere hiding.1 4

Due to the heinous nature of the crime, Sutherland, Nebraskaimmediately became the focal point of coverage by major wire ser-vices and national radio and television networks.' 5 Within anhour after the murders, local programming was interrupted withbulletins' 6 divulging name and description of the suspect in orderto alert area residents of his identity.1 7 Representatives of theprint and electronic media congregated at the Kellie house, demand-ing access into the secured area,18 and the city hall became a head-quarters for press representatives and law enforcement officers.' 9

Approximately 11 hours after the slayings, Erwin Charles Simantswas apprehended within a short distance of the Kellie home. Thesuspect, a 29-year old male, had been residing temporarily next doorwith his sister. 20 On the same day of his arrest Simants was

9. Lincoln Star, Oct. 20, 1975, at 1, col. 1.10. Lincoln 'Star, Oct.. 20, 1975, at 1, col. 1. Omaha World-Herald,

Oct. 20, 1975, at 1, col. 4.11. Joint Appendix Accompanying Parties Briefs for Certiorari at 14,

Nebraska Press Ass'n v. Stuart, 194 Neb. 783, 236 N.W.2d 794, cert. granted,96 S. Ct. 557 (1975) [hereinafter cited as Joint Appendix].

12. North Platte Telegraph, Oct. 23, 1975, at 1, col. 6, explained to itsreaders that first degree sexual assault is defined in the law as "sexualpenetration" of the victim. See NEB. REV. STAT. § 28-408.03 (Supp. 1975).

13. Brief for Respondent at 29, Nebraska Press Ass'n v. Stuart, 194Neb. 783, 236 N.W.2d 794, cert. granted, 96 S. Ct. 557 (1975) [hereinaftercited as Respondent's Brief].

14. Omaha World-Herald, Oct. 20, 1975, at 1, col. 6.15. North Platte Telegraph, Oct. 20, 1975, at 3, col. 1.16. Omaha World-Herald, Oct. 20, 1975, at 1, col. 6.17. Respondent's Brief at 4-5.18. Id.19. North Platte Telegraph, Oct. 20, 1975, at 3, col. 1.20. Id. at 1, col. 4.

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arraigned, defense counsel was appointed, a preliminary hearingwas set for October 23, and bond was denied after an evidentiaryhearing closed to the public because of the fear of release ofprejudicial information.21

The first publication of regional newspapers 22 after the crimecarried front page stories, many depicting Simants clad in jail garband handcuffed to the sheriff, as he was escorted from the arraign-ment proceeding. 23 News articles published before the prelimi-nary hearing also described Simants' troubled background, 24 priorarrests, 25 the existence of statements made to the authorities, 26

and his father's statement relating an admission of guilt to themurders.

27

The contents of Simants' statements to law enforcement offi-cials, a confession made to his nephew immediately after the crime,and a note written shortly thereafter were not publicized.2

1 Ifthese items had been widely disseminated, the likelihood of impan-eling an unbiased jury would indeed seem remote. At theconclusion of the trial, responses by the jurors to hypothetical ques-tions posed by Judge Stuart as to the effect of those confessionshad they been read prior to trial would tend to support a findingof their potential prejudicial impact. 29

21. Respondent's Brief at 5.22. North Platte Telegraph, Omaha World-Herald, Lincoln Star, Den-

ver Post, and Kansas City Times editions were used as exhibits in the hear-ing in the Lincoln County District Court on the motion to continue theCounty Court order.

23. North Platte Telegraph, Oct. 20, 1975, at 1, col. 1.24. Id. at 1, col. 2 where, for example, Simants was described as a

"loner" and an "outsider" in his family who had difficulty expressing emo-tions.

25. Omaha World-Herald, Oct. 20, 1975, at 3, col. 4.26. The Denver Post, Oct. 20, 1975, at 1, col. 4.27. North Platte Telegraph, Oct. 20, 1975, at 1, col. 4.28. Joint Appendix at 15-16, relating the testimony of Simants' 13

year-old nephew and contents of a note written by Simants-"Don't cry.It was the only way."

29. 'On January 17, 1976, following the release of the Jury in thecase before the Court, Judge Stuart made the following inquiry:

THE COURT: Now how many of you feel that had you thisinformation, that he had made these confessions, how many of youcould not have acted as jurors in the case? . . . [Eleven respondedin the affirmative.]

THE COURT: ... [H]ad the text of the confession been pub-lished in the newspapers, the confession that was given to OfficerGrieb and to Sheriff Gilster, in the preliminary hearing that wasintroduced, not the tape itself but the type-written text of whatwas in there was introduced in evidence as being a copy of theconfession, if this had been run in the paper, the text of the confes-sion that was given to Officer Grieb and Sheriff Gilster, how manyof you then would have been able to take an oath that you could

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NPA RESTRICTIVE ORDERS

Essentially four separate restrictive orders which required thenews media to refrain from publishing certain information relat-ing to the case of State v. Simants arose out of the NPA litigation.The County Judge imposed the first restraint on October 22.80

Judge Stuart of the District Court terminated the first order andreimposed similar restrictions on October 27.81 The third order,in effect, was the District Court's order as modified by JusticeBlackmun in his capacity as Circuit Justice in his opinion ofNovember 20.82 The fourth order, most important with respectto the upcoming review by the full Supreme Court, was set outby the Nebraska Supreme Court on December 1, 1975. 3

3

The County Court's order was entered pursuant to the grantingof a motion on October 21 raised by the County Attorney, alleging"a reasonable likelihood of prejudicial news which would makedifficult, if not impossible, the impaneling of an impartial jury andtend to prevent a fair trial . . . in the District Court if testimonyof witnesses at the preliminary hearing is reported to the public. '8 4

News media representatives and their counsel attended the hearingon the motion for the restrictive order on October 21, but they werenot advised beforehand of the purpose of their attendance.385 Noevidence was adduced at that hearing, rather, the County Judgerelied on statements by counsel and his own personal knowledgeof the crime as well as the nature and extent of publicity.8 6

The open-ended order of the County Court allowed newsreporters to attend the preliminary hearing and take notes, butprohibited any publication of testimony and evidence adducedtherein.3 7 The County Judge, after weighing the public's right toknow about court proceedings and the defendant's rights to "dueprocess," was quoted as saying: "When these rights come into con-

be a fair and impartial juror in the case if you had already readthe confession? . . . [One responded in the affirmative.]

THE COURT: One. How many could not, had you alreadyread the confession? . . . [Eleven responded that they could not.]

Respondent's Brief at 27.30. 96 S. Ct. at 237-38.31. 194 Neb. at 788, 236 N.W.2d at 798-99.32. 96 S. Ct. at 255-56.33. 194 Neb. at 801, 236 N.W.2d at 805.34. The defense joined in the County Attorney's motion, and further

moved that the preliminary hearing be closed to the public and press. Thelatter motion was denied. 96 S. Ct. 237-38.

35. Joint Appendix at 38-53.36. Id.37. North Platte Telegraph, Oct. 22, 1975.

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flict, then the right of free press must be subservient" to the right ofdue process. 3 8

With little delay, representatives of the news media mountedan attack on the order, specifically asking the District Court forleave to intervene in the case.3 9 After intervention was granted,40

a hearing ensued on October 23 to consider, inter alia, a defensemotion to continue the County Court's order;4 1 Judge Stuart,having before him a number of newspaper articles and the testi-mony of the County Judge and Associate Judge, found a clear andpresent danger of publicity precluding selection of an unbiasedjury.42 The County Court's order was discontinued on October27, superseded by a District Court order which more narrowlydefined the restrictions on the media expressly limited its effectto pretrial publicity. 43

38. Id.39. Joint Appendix at 22-25.40. Id. at 31-33. On appeal, however, the Nebraska Supreme Court

held that no third party has the right to intervene in a criminal prosecu-tion. See 194 Neb. at 788, 236 N.W.2d at 798.

41. Joint Appendix at 36. Judge Stuart granted a temporary continu-ance at that time but expressed his intention to issue a modified order afterfurther consideration on October 27.

42. Id. See also 194 Neb. at 794, 236 N.W.2d at 801.43. The order read as follows:The Court, being duly informed, finds because of the nature of thecrimes charged in the Complaint that there is a clear and presentdanger that pretrial publicity could impinge upon the defendant'sright to a fair trial, and that an order setting forth the limitationsof pretrial publicity is appropriate, and an order for the news mediaand public's accommodation to physical facilities is appropriate.

It is therefore ordered that the order of the Lincoln CountyCourt which was adopted by this Court on October 23, 1975, is here-by terminated.

The Court further orders that pretrial publicity shall be in ac-cordance with the following order:

The standards set forth in the Nebraska Bar-Press Guidelinesfor Disclosing and Reporting of Information Relating to Imminentor Pending Criminal Litigation are approved and are herebyadopted as the Court Order for dissemination of information in thiscase .... Such guidelines should be clarified as follows:

First: It is hereby stated that trial of the case commenceswhen a jury is impaneled to try the case, and that all reportingprior to that event, specifically including the preliminary hearing,is "pretrial publicity."

Second: It would appear that defendant has made a statementor confession to law enforcement officials and it is inappropriateto report the existence of such statement or the contents of it.

Third: It appears that the defendant may have made state-ments against interest to James Robert Boggs, Amos Simants andGrace Simants, and may have left a note in the William Boggsresidence, and that the nature of such statements, or the fact thatsuch statements were made, or the nature of the testimony of thesewitnesses with reference to such statements in the preliminaryhearing will not be reported.

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Mr. Justice Blackmun modified the District Court's order onNovember 20: he granted a stay as the wholesale incorporationof the voluntary bar-press guidelines4 4 but allowed the NebraskaCourts to place some restraint on media reporting.45 He alsostayed those parts of the order which prohibited the reporting ofdetails of the crimes, of the identities of the victims of sexualassault, and of the testimony of the pathologist at the preliminaryhearing.46 Justice Blackmun stated his belief that such informa-tion should be publishable even though it may disturb communitymembers who were prospective jurors and may strengthen theirresolve that someone should be. convicted for the offenses.47

Justice Blackmun's opinion noted several aspects of the restric-tive order which were valid. First, certain facts, such as a

Fourth: The non-technical aspects of the testimony of Dr.Miles Foster may be reported within the guidelines and at the care-ful discretion of the press. The testimony of this witness dealingwith technical subjects, tests or investigations performed or the re-sults thereof, of his opinions or conclusions as a result of such testsor investigations will not be reported.

Fifth: The general physical facts found at the scene of thecrime may be reported within the guidelines and at the carefuldiscretion of the press. However, the identity of the person or per-sons allegedly sexually assaulted or the details of any alleged as-sault by the defendant will not be reported.

Sixth: The exact nature of the limitations of publicity as en-tered by this order will not be reported. That is to say, the factof the entering of this order limiting pretrial publicity and theadoption of the Bar-Press Guidelines may be reported, but specificreference to confessions, statements against interest, witnesses ortype of evidence to which this order will apply, will not be re-ported.

In keeping with the physical facilities of the Lincoln CountyCourthouse, the Court orders the following:

First: No photographs will be taken on the third or fourthfloors of the Lincoln County Courthouse at any time during theconduct of this case.

Second: The main hall on the third floor of the Lincoln Coun-ty Courthouse will be cleared of all personnel while the jury ismoving in or out of the courtroom. When the jury is excused dur-ing the conduct of the case, all counsel, news media personnel,spectators, or other persons present in the courtroom will remainseated until the jury has left the courtroom and cleared the mainthird floor hallway.

This order will remain in effect until further order of the Courtor until completion of this case....

Joint Appendix at 74-76.44. For examples of such voluntary codes see Advisory Committee on

Fair Trial and Free Press, ABA Project on Standards for Criminal Justice,Standards Relating to Fair Trial and Free Press-Approved Draft (1968)at 29-35 [hereinafter cited as ABA Study]. (This study commonly iscalled the Reardon Report).

45. 96 S. Ct. at 255.46. Id.47. Id.

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confession or statement against interest, may be suppressed, becausesuch facts "strongly implicate" the accused. 48 Secondly, facts notstrongly implicative but, nevertheless, highly prejudicial, such asinformation regarding the accused's prior criminal record, if he hasone, or statements of opinion relating to the accused's guilt whichare attributable to the prosecution, could be restrained.49 Thirdly,controls on the taking of photographs or other media activity inthe courthouse were permissible. 50 Finally, restraints could beimposed on the parties and officers of the court as to what theymay say to newsmen. 51

The fourth restrictive order was issued by the NebraskaSupreme Court in its opinion of December 1.52 The NebraskaCourt vacated the District Court's order of October 27 and rein-stated it in the following respects, seemingly drawn more narrowlythan what Justice Blackmun may have suggested:

It shall be effective only as to the events which haveoccurred prior to the filing of this opinion, and only as itapplies to the relators herein, and only insofar as it restrictspublication of the existence or content of the following, ifany such there be: (1) Confessions or admissions againstinterest made by the accused to law enforcement officials.(2) Confessions or admissions against interest, oral or writ-ten, if any, made by the accused to third parties, exceptingany statements, if any, made by the accused to representa-tives of the news media. (3) Other information stronglyimplicative of the accused as the perpetrator of theslayings.

5 3

Leaving aside at the moment the question of whether arestrictive order at any time and in any form is constitutional, acomparison of the four versions of the orders set out above isinstructive on matters relating to content, timing, and criteria ofrestraints on the press.

Quite significantly, each modification narrowed the scope of theimmediately preceding version until it reached the point where onlyconfessions or admissions against interest related to someone otherthan a member of the news media and facts strongly implicativeof the accused as the murderer were deemed proper subjects forrestraint.54 This narrowing of the scope of the orders is in line

48. Id.49. Id. at 255-56.50. Id. at 256.51. Id.52. 194 Neb. at 801, 236 N.W.2d at 805.53. Id.54. Id.

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with Supreme Court decisions that such restraints on speech andpress are to be upheld only where narrowly drawn and in theabsence of reasonable alternatives with less impact on First Amend-ment freedoms.55

In addition to limiting the facts subject to restraint, thesuccessive modifications removed the vagueness in directions to thenews media. For example, Justice Blackmun, in particular, foundthe "merely suggestive" language of the bar-press guidelines "mosttroublesome."56 The modifications further constricted the field ofpersons on whom the restriction operated 5 7 and clarified the time-frame over which the restriction applied. 58 While the CountyCourt's order was open-ended, the District Court's order wasexpressly limited to pretrial publicity, that is, until the jury wasimpaneled. 59 Arguably, at that time sequestration of the jurywould achieve the desired end-a jury's determination of guilt orinnocence based solely on evidence and arguments in court. 0°

SETTING A STANDARD

'Contrasting the approaches taken by the courts in the NPAlitigation poses an issue of what standard is proper in appraisingthe interference of publicity to the administration of justice and,specifically, what standard applies to a direct prior restraint on the

55. Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175,183 (1968); Shelton v. Tucker, 364 U.S. 479, 488 (1960).

56. 96 S. Ct. at 254. The Bar-Press Guidelines, never designed to bemandatory, which were imposed on the news media by incorporation inthe District Court's Order, included phrases such as publication of an ac-cused's criminal record "should be considered very carefully."

57. The County Court's order was directed toward all "news media."The Nebraska Supreme Court struck this down for want of jurisdiction overthe persons and reinstated its version of the order only with respect tothe relators in the mandamus action. 194 Neb. at 795, 236 N.W.2d at 802,see also CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975), where, in civillitigation arising out of the widely publicized Kent State killings in 1970,the Court's restrictive order directed to all parties, their relatives, closefriends and associates was held to be overbroad, thereby impinging on free-dom of the press.

58. 96 S. Ct. at '239. See also Times-Picayune Pub. Corp. v. Schuling-kamp, 419 U.S. 1301 (Powell, Circuit Justice, 1974) where one reason forgranting a stay of the restrictive order was its indefinite and possiblylengthy duration, i.e., until the end of the trial.

59. Id.60. Mr. Justice Holmes stated in Patterson v. Colorado, 205 U.S. 454,

462 (1907):The theory of our system is that the conclusions to be reached ina case will be induced only by evidence and argument in opencourt, and not by any outside influence, whether of private talkor public print.

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press in that setting. A search for a standard, however, would befruitless unless the first amendment admits of an exception to therule of no prior restraint of speech or press. Exceptions to thatrule have been recognized where important societal interests out-weighed the harm of restraint, but the rule has not been testedin a factual setting like that of the instant case. 61

"Reasonable Likelihood" Test

The County Court purported to apply a "reasonable likelihood"test, that is, that there was a "reasonable likelihood of prejudicialnews which would make difficult, if not impossible, the impanelingof an impartial jury. '62 The meaning of the test is not clearlyascertainable however, because the County Court received no evi-dence prior to making its ruling.i

Although the standard seems considerably more lenient thanthe "clear and present danger" test,6 4 it has gained some supportin the context of direct restraint on parties to litigation and theircounsel regarding extrajudicial comments. The leading case in thisarea is United States v. Tijerina,65 which found the "unreasonablelikelihood" test sufficient in weighing the effect of prejudicialnews. 66 Since the forecast of the effect of potential publicity onprospective jurors is largely guesswork riddled with uncertaintiesand contingencies, the "reasonable likelihood" test seems to portraymore accurately a trial court's analysis of pretrial publicity; it couldalmost never predict with certainty that the danger is clear andimminent.

6 7

On the other hand, the supposed leniency of the "reasonablelikelihood" test could lead to excessive judicial restraints of thepress. Persuasive support for the rejection of the standard is found

61. Schenck v. United States, 249 U.S. 47, 52 (1919) (prior restraintpermissible, where speech threatened national security); Cf. New YorkTimes Co. v. United States, 403 U.S. 713 (1971); Chaplinsky v. New Hamp-shire, 315 U.S. 568 (1942) ("fighting words" are unprotected speech); Rothv. United States, 354 U.S. 476 (1957) (obscenity is unprotected speech).

62. 96 S. Ct. at 238.63. 194 Neb. at 794-95, 236 N.W.2d at 802.64. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th

Cir. 1975).65. 412 F.2d 661 (10th Cir.), cert. denied, 396 U.S. 990 (1969).66. Id. at 666.67. See Younger v. Smith, 30 Cal. App. 3d 138, 162-64, 106 Cal. Rptr.

2d 225, 241-42 (1973), criticizing the invocation of the "clear and presentdanger" test as placing a "premium on hypocritical adherence to an abstractformula". Contra, Chicago Council of Lawyers V. Bauer, 522 F.2d 242, 249(7th Cir. 1975).

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in the recommendations of studies on free press-fair trial con-ducted by the Judicial Conference of the United States and theAmerican Bar Association.68 Those studies militate against directrestriction of the news media, although the ABA report outlinesa proposal for limited use of. the contempt power on the clearestshowing that less drastic measures are inadequate to assure fairnessof a trial.6 9 Additional authority weighing against adoption of the"reasonable likelihood" standard is found in Nye v. United States70

which overruled the proposition that one's conduct outside thevicinity of the court could be punished by contempt if it had a"reasonable tendency" to obstruct the administration of justice.71

"Clear and Present Danger" Test

The District Court prefaced its order with the finding thatthere was "clear and present danger" of pre-trial publicity imping-ing upon defendant's right to be tried by an impartial jury.7 2 Al-though the same general information apparently was available tothe District Court as to the County Court, the former Court for-mally received evidence whereas the latter did not.7 3 Additionaldevelopments in the case also may have influenced Judge Stuart'sdecision to continue restraints of the press, even though a seeminglymore stringent standard was applied. He may have concluded thatnews reporting would be less than responsible.7 4 Furthermore, astatement by counsel for the news media that "it is already doubt-ful that an unbiased jury can be found to hear the Simants case

68. See generally ABA Study at 68-73; COMIrEE OrTo THE OPERATIONOF THE JURY SYSTEM, JUDICIAL CONFERENCE OF THE, UNITED STATES, REPORTOF THE COMMITTEE ON THE OPERATION OF THE JURY SYSTEM IN THE "FREE-PREss-FAIR TRIAL" ISSUE (1968) (reported in 45 F.R.D. 391) (commonlycalled the Kauffman Report); See also ASSOCIATION OF THE BAR OF THE CITYOF NEW YORK, SPECIAL COMMITTEE ON RADIO, TELEVISION, AND THE ADMIN-ISTRATION OF JUSTICE, FINAL REPORT WITH RECOMMENDATIONS (1967) (com-monly called Medina Report).

69. ABA Study at 70.70. 313 U.S. 33 (1941).71. Id. at 52, which overruled Toledo Newspaper Co. v. United States,

247 U.S. 402 (1918).72. 194 Neb. at 794, 236 N.W.2d at 801.73. Regional newspapers were entered into evidence, some of which

had been printed before the County Court's order. Id. at 794-97, 236 N.W.2dat 802-03.

74. Omaha World-Herald, Jan. 8, 1976, at 8, col. 1. In a press inter-view, Judge Stuart was quoted as saying that the media did not heed hisappeal for "discretion and tact" in reporting the case. See also Respon-dent's Brief at 6, where there appeared an excerpt from the North PlatteTelegraph, Oct. 24, which stated: "There is some question among newsmenas to whether the guidelines cover testimony at a preliminary hearing. .. ."

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in Lincoln County" may have reinforced Judge Stuart's determina-tion. 75

Invocation of the "clear and present danger" standard seemsquite natural in view of past Supreme Court cases dealing withthe issue of free press-fair trial;76 however, the difficulty of itsapplication 77 generally has resulted in its desuetude in other con-texts.-1

The "clear and present danger" test was enunciated first byJustice Holmes in Schenck v. United States79 where it was heldthat a conspiracy to distribute a circular created a clear and presentdanger that the words will bring about the substantive evils whichCongress has a right to prevent.80 Unfortunately, decisions sincethen, 1919, have not clarified "when a danger shall be deemed clear"and "how remote the danger may be and yet be deemed present.181

Perhaps the most coherent definition of the standard, which alsoreveals its suspect utility as an analytical tool, was offered byJustice Learned Hand:

The phrase, 'clear and present danger,' has come to be usedas a shorthand statement of those among such mixed orcompounded utterances which the [First] Amendment doesnot protect. Yet it is not a vade mecum; indeed, from itsvery words it could not be. It is a way to describe apenumbra of occasions, even the outskirts of which areindefinable, but within which, as is so often the case, thecourts must find their way as they can. In each case theymust ask whether the gravity of the 'evil,' discounted byits improbability, justifies such invasion of free speech asis necessary to avoid the danger.8 2

Despite its lack of talismanic quality, the "clear and presentdanger" test has retained some vitality where publication assertedly

75. 194 Neb. at 797, 236 N.W.2d at 803.76. Wood v. Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 U.S.

367 (1947); Pennekamp v. Florida, 328 U.S. 331 (1946); Bridges v. Califor-nia, 314 U.S. 252 (1941).

77. See United States v. Dennis, 183 'F.2d 201, 210 (2d Cir. 1950), aff'd,341 U.S. 494 (1951) (conspiracy to violate the Espionage Act) [hereinaftercited as Dennis].

78. See e.g., New York Times Co. v. United States, 403 U.S. 713, 714(1971) where attempted suppression of the publisher of the Pentagon Pa-pers was unsuccessful; no reference was made to the "clear and presentdanger" test.

79. 249 U.S. 47 (1919).80. Id. at 51-52.81. Dennis at 208, citing Whitney v. California, 274 U.S. 357, 374

(1927).82. Id. at 212.

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is in conflict with a fair administration of justice, at least asrecently as the Supreme Court decision of Wood v. Georgia.83 Thatcase involved a press release critical of the judge's instructions toa grand jury while the jury was in session investigating "bloc vot-ing" in a then current political campaign. 4 The Court reversedthe contempt citation through application of the "clear and presentdanger" standard, finding no showing of a substantive evil actuallydesigned to impede the course of justice.8 5

In Wood v. Georgia, the Supreme Court relied principally onBridges v. California,"6 its first review of a State's exercise of thecontempt power to punish a publisher for an out-of-court state-ment.8 7 Calling upon the "clear and present danger" test, theCourt reversed the contempt conviction of a labor leader which wasbased upon his publication of a telegram sent to the Secretary ofLabor criticizing the judge's decision in a labor dispute and indicat-ing that enforcement of the decree would result in a strike.8

The line of Supreme Court decisions from Bridges to Woodarticulates a uniform standard but recognizes that no definitiongives an answer to the question of what is "clear and present dan-ger" to a fair administration of justice.89 Although those casesprovide some indication of the boundaries of the first amendmentfreedoms when publication is directed toward a judicial proceeding,they did not involve a situation where an individual was on trialby jury and was threatened with prejudice 0 In fact, in Woodv. Georgia, the Court expressly stated that other factors may enterthe consideration of a case involving a petit jury.9 1

The difficulty in applying the "clear and present danger" test,especially in view of the urgency in acting upon the petition forstay of the District Court's restrictive order, may partially explainJustice Blackmun's failure to emphasize the test in his chambersopinion.9 2 Furthermore, that avoidance could be attributable to thelack of relevance of the test in a case involving a trial by jury.

83. 370 U.S. 375 (1962).84. Id. at 381.85. Id. at 384, 389.86. 314 U.S. 252 (1941). The Court further followed Pennekamp v.

Florida, 328 U.S. 331 (1946) which applied a "clear and present danger"test to publications attacking judges.

87. Wood v. Georgia, 370 U.S. 375, 383 (1962).88. Bridges v. California, 314 U.S. 252 (1941).89. See e.g., Pennekamp v. Florida, 328 U.S. 331, 348 (1946).90. Wood v. Georgia, 370 U.S. 375, 389 (1962).91. Id.92. 96 S. Ct. at 253.

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Justice Blackmun spoke in terms of "presumptions" rather than"clear and present dangers" or "substantive evils," starting withthe premise that prior restraints on the media are "presumptivelyinvalid. '93 "The accused, and prosecution if it joins him, bears theburden of showing that publicizing particular facts will irreparablyimpair the ability of those exposed to them to reach an independ-ent and impartial judgment as to guilt. '94 The paramount prin-ciple underlying this formulation is that the press "is to be freeand unrestrained and that the facts are presumed to be in the pub-lic domain."'95

If a prior restraint bears a "heavy presumption against itsconstitutional validity," 96 the implication is that under certain cir-cumstances, the presumption may be rebutted.9 7 Sweeping state-ments in Branzburg v. Hayes,98 where the issue was whether news-men might be compelled to testify before a grand jury, referredto the propriety of restraint on the media: "Newsmen . . .maybe prohibited from attending or publishing information about trialsif such restrictions are necessary to assure a defendant a fair trialbefore an impartial tribunal."99

In the most notorious case in modern American times ofpublicity and courtroom conduct of the news media interfering witha fair trial, Sheppard v. Maxwell,10 0 the Supreme Court alsoalluded to judicial restraints of the press.1' 1 The Court admon-ished the trial judge to exercise more control over the proceeding"to reduce the appearance of prejudicial material and to protectthe jury from outside influence,10 2 though recognizing the tradi-tional unwillingness to place direct limitations on the newsmedia.'10 Prior restraint was not at issue there, but the Courtexpressly left open the question of sanctions against a recalcitrantpress.10 4 The Court also stated that direct restraint of lawyers,parties, witnesses, and court officials would be justified. 0 5

93. Id. See New York Times Co. v. United States, 403 U.S. 713, 714(1971).

94. 96 S. Ct. at 243.95. Id.96. New York Times Co. v. United States, 403 U.S. 713, 714 (1971).97. 194 Neb. at 793, 236 N.W.2d at 801.98. 408 U.S. 665 (1972).99. Id. at 684-85.

100. 384 U.S. 333 (1966) [hereinafter cited as Sheppard].101. Id. at 358.102. Id. at 357-58.103. Id. at 350.104. Id. at 358.105. Id. at 361.

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PREJUDICIAL PUBLICITY AND IMPARTIAL JURY

Whatever standard is considered appropriate for an accommo-dation between the first and sixth amendments, further inquiryis necessary: What is an impartial jury? What constitutes prejudi-

cial publicity? What degree of prejudice irreparably impaires a

potential juror's ability to be impartial?

The impartial jurors required by the sixth amendment'0 6

need not be totally ignorant of the facts and issues involved in the

criminal case.'0 7 The Nebraska Supreme Court correctly con-

ceived an impartial jury to be "12 persons who have not alreadymade up their minds as to the defendant's guilt or innocence.''108

The rule which has evolved with respect to challenges of jurorson voir dire on the grounds of partiality draws a line based uponthe strength of the juror's opinion. Chief Justice Marshall in Burr'sTrial related:

Light impressions, which may fairly be presumed to yieldto the testimony that may be offered, which may leave themind open to a fair consideration of the testimony, consti-tute no sufficient objection to a juror; but that those strongand deep impressions which close the mind against thetestimony that may be offered in opposition to them, whichwill combat that testimony and resist its force, do consti-tute a sufficient objection to him.'0 9

The process of ascertaining a juror's ability to make an

independent judgment based upon evidence and arguments in courtand isolating the factors which may irreparably impair his ability

are not governed by "litmus paper" tests. 10 Impartiality is not

a technical conception but a state of mind."' Perception of that

state of mind is frustrated because the juror himself may fail to

106. Turner v. Louisiana, 379 U.S. 466, 471 (1965).107. Murphy v. Florida, 421 U.S. 794, 799-800 (1975).108. 194 Neb. at 794, 236 N.W.2d at 801.109. Cited in Reynolds v. United States, 98 U.S. 145, 155 (1878), a case

of continuing vitality as to the judicial standard of impartiality. Interest-ingly, the Court noted the problem of publicity in that era:

The theory of the law is that a juror who has formed an opinioncannot be impartial. Every opinion which he may entertain neednot necessarily have that effect. In these days of newspaper enter-prise and universal education, every case of public interest is al-most, as a matter of necessity, brought to the attention of all theintelligent people in the vicinity and scarcely anyone can be foundamong those best fitted for jurors who has not read or heard ofit, and who has not some impression or some opinion in respectto its merits.

Id. at 155-56.110. 96 S. Ct. at 256.111. United States v. Wood, 299 U.S. 123, 145-46 (1936).

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see his bias.112 Justice Clark noted this problem in Irwin v.Dowd"13 when referring to a juror's statements as to his abilityto be impartial: "No doubt each juror was sincere when he saidthat he would be fair and impartial to petitioner, but the psycho-logical impact requiring such a declaration before one's fellows isoften its father."'"1 4

Other Supreme Court decisions reversing convictions found tobe tainted by prejudicial publicity may serve as a general judicialguide as to the types of publication which preclude selection of animpartial jury, especially because of the lack of empirical study ofthe effects of pretrial publicity on actual jurors.1' 5

In Rideau v. Louisiana,"6 a television station in a large urbancommunity broadcast for three consecutive days a filmed interviewbetween the accused and his jailhouse interrogators wherein theaccused confessed to a robbery, kidnapping, and killing." 7 TheCourt found prejudice so inherent in the situation that examinationof the voir dire transcript was unnecessary."" In essence, it heldthat actual prejudice need not be shown.

The first Supreme Court decision reversing a conviction ongrounds of prejudicial publicity was Marshall v. United States.1 9

112. Stanga, Judicial Protection of the Criminal Defendant Against Ad-verse Press Coverage, 13 WM. & MARY L. REv. 1, 2 (1971).

113. 366 U.S. 717 (1961).114. Id. at 728.115. The Respondent in his brief cited SIMON, THE JURY SYSTEM IN

AMERICA, 125, referring to experiments conducted by Professors Padawer-Singer and Barton to determine the possible impact on jurors of publica-tions containing reference to defendant's previous criminal record and re-tracted confession.

The results of that experiment established that newspaper storiescontaining such information had a definite impact on experimentaljuries. The results indicated that not all unfavorable publicity isdamaging, but a serious problem exists in the area of informationas to previous criminal record and alleged retracted confessions.

Respondent's Brief at 26.116. 373 U.S. 723 (1963).117. Id. at 724.[T]he conclusion cannot be avoided that this spectacle .... in avery real sense was Rideau's trial-at which he pleaded guilty tomurder. Any subsequent court proceedings in a community so per-vasively exposed to such a spectacle could be but a hollow formal-ity.

Id. at 726.118. Id. at 727.119. 360 U.S. 310 (1959). The Court's action was founded on its super-

visory authority over lower federal courts; the reversal of a convictiontainted by prejudice on constitutional due process grounds came four yearslater in Irvin v. Dowd, 366 U.S. 717 (1961). In Marshall the jurors onvoir dire said that they would not be influenced by the news accounts,

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That case involved publication of the accused's prior criminalactivity despite a ruling by the trial judge in an earlier hearingthat such evidence would be inadmissible. 120

In Sheppard after generally excoriating the press for itsmanner of reporting and editorializing, the Court specifically criti-cized the printing of material never heard from the witness standsuch as attacks on Sheppard's character and his refusal to submitto a lie detector test.1 2 1

The retrospective determinations by the Supreme Court citedabove, which were arrived at through reference to some relativelytangible variables such as the number of veniremen examined onvoir dire and challenged, constitute an easier task than prospectivepretrial estimates by a trial judge as to the probable publicity andpotential prejudice. 122 The factors highlighted by the NebraskaSupreme Court in considering the sufficiency of the evidence forissuance of the District Court's order probably reflect reason-able guideposts in an area where additional empirical study isneeded. 28 Also, the standard recommended by the ABA withrespect to pretrial comments by an attorney,'2 4 albeit unconstitu-

that they felt no prejudice toward the accused, and that they could decideonly on evidence of record. Id. at 312.

120. 360 U.S. at 311.121. Sheppard at 338, 356-57.122. See e.g., Irvin v. Dowd, 366 U.S. 717 (1961).123. 194 Neb. at 796-98, 236 N.W.2d at 802-03.The Court looked at the nature of news articles on the crime to date,

noting that certain newspapers "had printed articles containing hearsay in-formation and purported statements of counsel, which, if true, tendedclearly to connect the accused with the slayings. . . ." Second, it took no-tice of the opinions expressed at the hearing on the restrictive order whichmanifested an improbability of finding an impartial jury. Third, it consid-ered the size of the community. A rural community is less heterogenousthan a urban community, and therefore probably consists of fewer personsunexposed to massive publicity. Fourth, the Court studied the density ofnews coverage (there were several radio stations, two television stations,and five or six newspapers printed or circulated in the area). Fifth, theheinousness or enormity of the crime is significant. Sixth, the trial judge'sown knowledge of the surrounding circumstances is material.

124. ABA Study at 2. The following topics are listed:(1) The prior criminal record (including arrests, indictments, orother charges of crime), or the character or reputation of the ac-cused, except that the lawyer may make a factual statement ofthe accused's name, age, residence, occupation, and family status,and if the accused has not been apprehended, a lawyer associatedwith the prosecution may release any information necessary to aidin his apprehension or to warn the public of any dangers he maypresent;(2) The existence or contents of any confession, admission, orstatement given by the accused, or the refusal or failure of theaccused to make any statement;

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tionally overbroad with respect to direct restraint of the newsmedia, provides a useful framework for assessing the types of publi-cation susceptable of inducing bias.

It may be argued that until the influence of press publicityon judges and jurors becomes proven by empirical study,125 nojustification for restraint of the press exists. On the other hand,it may be assumed that the press media can impair the fair adminis-tration of justice.126

A LESS RESTRICTIVE ALTERNATIVE?

The Supreme Court in Sheppard noted the pervasiveness ofmodern communications and the difficulty of effacing prejudicialpublicity from the minds of jurors and suggested strong measures"to ensure the balance is never weighed against the accused. 1 27

The Court set out a rather comprehensive catalog of remedies avail-able to a trial court where there is a reasonable likelihood thatprejudicial news prior to trial will prevent a fair trial:

[T]he judge should continue the case until the threatabates, or transfer it to another county not so permeatedwith publicity. In addition, sequestration of the jury wassomething the judge should have raised sua sponte withcounsel. If publicity during the proceedings threatens thefairness of the trial, a new trial should be ordered. Butwe must remember that reversals are but palliatives; thecure lies in those remedial measures that will prevent theprejudice at its inception. The courts must take such stepsby rule and regulation that will protect their processesfrom prejudicial outside inferences. Neither prosecutors,counsel for defense, the accused, witnesses, court staff norenforcement officers coming under the jurisdiction of thecourt should be permitted to frustrate its function. Col-

(3) The performance of any examinations or tests or the accused'srefusal or failure to submit to an examination or test;(4) The identity, testimony, or credibility of prospective witnesses,except that the lawyer may announce the identity of the victimif the announcement is not otherwise prohibited by law;(5) The possibility of a plea of guilty to the offense charged ora lesser offense;(6) Any opinion as to the accused's guilt or innocence or as tothe merits of the case or the evidence in the case.

125. See generally Fair Trial v. Free Press: The Psychological Effectof Pre-trial Publicity on the Juror's Ability to Be Impartial: A Plea forReform, 38 S. CAL. L. REV. 672 (1965).

126. Hearings on S. 290 Before the Subcomm. on Constitutional Rightsand the Subcomm. on Improvements in Judicial Machinery of the Sen.Comm. on the Judiciary, 89th Cong., 1st Sess. 712-713 (1966) [reprintedfrom 41 JOURNALISM Q. - (1964)].

127. Sheppard at 362.

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laboration between. counsel and the press as to informationaffecting the fairness of a criminal trial is not only subjectto regulation, but is highly censurable and worthy ofdisciplinary measures.1 28

Two of the suggestions in Sheppard were examined by theNebraska Supreme Court: continuance and change of venue.129

Additionally, closure of the preliminary hearing, a remedy of morerecent vintage, was considered and apparently deemed to be prefer-ential to the controversial restrictive order.' 30

Notably, the most elementary means of selecting an impartialjury were not expressly addressed by any of the courts in theinstant litigation, that is, the use of voir dire and challenges, bothperemptory and for cause. The conspicuous absence of such discus-sion might mean that this mechanism would be unproductive ina community so small and already exposed to intensive public-ity.'8 ' The absence of reference in the appellate opinions mayreflect merely a deference to the lower court's discretion.13 2

The possibility of a continuance was summarily dismissed bythe Nebraska Supreme Court, citing the statute13 3 requiring thatan accused be tried within six months of the information.8 4

Probably the enormity of the crime and the size of the communitywere major factors in determining that a lapse of time could dolittle to remove the scar on the community or attenuate its outcryfor retribution.35 The remedy of continuance generally has beencriticized to be a dubious value in view of the all-pervasive natureof the modern mass media,8 6 and, of course, the remedy providesno guarantee against resurgence of publicity at a later date. Evendiscounting the possibility of a resurgence in publicity, the remedyseems to be founded on a questionable supposition (at least in the

128. Id. at 363.129. 194 Neb. at 797-98, 236 N.W.2d at 803. The portion of the County

Court's order which was directed toward all parties involved in the pre-liminary hearing was not questioned.

130. 194 Neb. at 802, 236 N.W.2d at 805.131. 194 Neb. at 797, 236 N.W.2d at 803.132. 194 Neb. at 798, 236 N.W.2d at 803. Justice Blackmun noted:The District Court and the Supreme Court of Nebraska are closerthan I am to the facts of the crimes, to the pressures that attendit, and to the consequences of community opinion that have arisensince the commission of the offenses.

96 S. Ct. at 258.133. N s. Rav. STAT. § 29-1205 et seq. (Cum. Supp. 1974).134. 194 Neb. at 797, 236 N.W.2d at 803.135. See note 122 supra.136. See e.g., Goldfarb, Public Information, Criminal Trials and the

Cause Celebre, 36 N.Y.U. L. REV. 810, 821 (1961).

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setting of the instant case) that the crime lessens in importanceas time passes.1 37

As to the efficacy of a venue change, the Nebraska SupremeCourt specially noted the populations of the counties contiguousto Lincoln County, since the statute138 limited a change of venueto surrounding counties. 3 9 The populations of those countieswere smaller than that of Lincoln County and were generallythe same news coverage area.140 Therefore, the probability offinding an impartial jury by a venue change could not have beenappreciably increased. 14 1

The other alternative considered, and then adopted, by theNebraska Supreme Court was a preliminary hearing closed to thepublic and press. 142 The accused's motion in this regard had beendenied by the County Court, ostensibly on the basis of a statuterequiring all judicial proceedings be open. 43 However, theNebraska Supreme Court incorporated the ABA standard relatingto pretrial hearings in order to permit the statute to stand againsta constitutional challenge founded on the Sixth Amendment rightto an impartial jury.14 4

137. A review of local news coverage reveals that scarcely a singleday passed between the occurrence of the crime and the conclusionof the trial, wherein there was not a report of the progress of thisaction in the North Platte Telegraph. This newspaper is the paperof general circulation throughout Lincoln County and surroundingcommunities. The crime, certainly being newsworthy and beingput before the people each day, did not lessen in importance astime went by, but rather became of greater importance to the peo-ple of the community.

Respondent's Brief at 31.138. NEB. REv. STAT. § 29-1301 (Supp. 1975).139. 194 Neb. at 797, 236 N.W.2d at 803.140. 194 Neb. at 797-98, 236 N.W.2d at 803. The population of Lincoln

County, according to the 1970 census was 29,538. The populations of adja-cent counties were as follows:

County 1970 PopulationKeith 8,487Perkins 3,423Hayes 1,530Frontier 3,982Dawson 19,537Custer 14,092Logan 991McPherson 623

See also Respondant's Brief at 32.141. 194 Neb. at 798, 236 N.W.2d at 803.142. 194 Neb. at 802, 236 N.W.2d at 805-06.143. Na_. REV. STAT. § 24-311 (Cum. Supp. 1974).144. ABA Standard 3.1, Fair Trial and Free Press: Pretrial Hearings

reads as follows:Motion to exclude public from all or part of pretrial hearing. Inany preliminary hearing, bail hearing, or other pretrial hearing in

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Although the ABA Study, the source of the standard adoptedby the Nebraska Supreme Court, seemingly has given impetus tothe use of this remedy at the request of the defendant, its constitu-tionality has not been settled by the United States SupremeCourt.1 45 Some courts which have permitted exclusion of thepublic and press from the preliminary hearing have not necessarilyapplied the "reasonable likelihood" standard contained in the ABAStudy due to a challenge on first amendment grounds. 146

The first amendment challenge to the closed preliminary hear-ing is not so strong as the challenge against a restrictive order.Freedom of the press generally does not embrace a right of "specialaccess to information not available to the public generally.' 147

For example, the press is regularly excluded from grand jury pro-ceedings, Supreme Court conferences, and official bodies in execu-tive session.148 As a practical matter, a court order denying accessto a hearing rather than specifying certain types of informationwhich cannot be published seemingly would be less subject to mis-understanding by members of the press; therefore, the probabilityof violation and resultant contempt citation would possibly bediminished.

Nevertheless, in camera proceedings are objectionable undermost circumstances because of a general distaste for secrecy in

a criminal case, including a motion to suppress evidence, the de-fendant may move that all or part of the hearing be held in cham-bers or otherwise closed to the public, including representatives ofthe news media, on the ground that dissemination of evidence orargument adduced at the hearing may disclose matters that willbe inadmissible in evidence at the trial and is therefore likely tointerfere with his right to a fair trial by an impartial jury. Themotion shall be granted unless the presiding officer determines thatthere is no substantial likelihood of such interference. With theconsent of the defendant, the presiding officer may take such actionon his own motion or at the suggestion of the prosecution. When-ever under this rule all or part of any pretrial hearing is held inchambers or otherwise closed to the public, a complete record ofthe proceedings shall be kept and shall be made available to thepublic following the completion of trial or disposition of the casewithout trial. Nothing in this rule is intended to interfere withthe power of the presiding officer in any pretrial hearing to cautionthose present that dissemination of certain information by anymeans of public communication may jeopardize the right to a fairtrial by an impartial jury.

194 Neb. at 802, 236 N.W.2d at 805-06.145. See generally Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972); In

re Oliver, 333 U.S. 257 (1948).146. Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563

(1971) (clear and present danger test).147. Branzburg v. Hayes, 408 U.S. 665, 684 (1972).148. Id.

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judicial proceedings 149 and of the likelihood of creating suspicionof a judge's bias.150 Several unique aspects of preliminary hear-ings, however, do militate against holding that a public has anabsolute right to know. First, invariably the only evidence offeredin a preliminary hearing is that of the prosecution.15' Secondly,a large segment of the public may not distinguish between a pre-liminary hearing and a trial and thereby interpret the outcome asa testament of guilt rather than a finding of probable cause to holdover the defendant. 1 52

CONCLUSION

The forthcoming decision by the United States Supreme Courtin Nebraska Press Association v. Stuart promises to clarify a tur-bulent, uncertain area of the law relating to the free press-fair trialissue. The parameters which the Court sets out for an accommo-dation of the first and sixth amendment guarantees will be thesubject of widespread attention; the case is the focus of stronginstitutional interests-the press, bench, and bar-and of an en-lightened citizenry that appreciates the essentiality of each guaran-tee to a free society.

Generally, the Court must reconcile its past statements that,on the one hand, apparently confer broad powers on the courtsto assure a fair trial by impartial jury, and on the other, seeminglylimit restrictions on the press to its own journalistic integrity andsalability of its product. Rather than labor with the definition ofa substantive standard, the Justices may very well emphasize proce-dural safeguards such as the opportunity for a hearing and timeli-ness of appellate review. Perhaps more meaningful conceptions of"prejudice" and "impartiality" and extended comparative analysisof the traditional remedies to combat adverse effects of prejudiceon the judicial system, as well as a determination relating to theclosed preliminary hearing, will come out of the case.

In summation, the course of the present controversy ismost aptly described by a passage found in United States v.Dickenson: 153

149. Geis, Preliminary Hearings and the Press, 8 U.C.L.A. L. REv. 397,404 (1961). See also In re Oliver, 333 U.S. 257, 268 (1948).

150. Geis, Preliminary Hearings and the Press, 8 U.C.L.A. L. REv. 397,,404 (1961). See also In re Oliver, 333 U.S. 257, 270-71 (1948).

151. Geis, Preliminary Hearings and the Press, 8 U.C.L.A. L. REv. 397,412 (1961).

152. Id.153. 465 F.2d 496 (5th Cir. 1972).

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The civil libertarians' nightmare with which we here arehaunted presents a classic confrontation between 'two ofthe most cherished policies of our civilization'--freedom ofthe press, encased in the armor of the First Amendment,pitted against the right of the accused to a fair and impar-tial trial, shielded by the Sixth Amendment and reinforcedin this case by a protective order of the District Courtwhich is the real cause of the battle. In the skirmish thatensues, both sides glimpse victory and both sides tastedefeat. But the Day of Armegeddon has not yet dawnedon this great conflict ... 114

EPILOGUE

On June 30, 1976, Chief Justice Burger speaking for the UnitedStates Supreme Court ruled that the restraining orders issued bythe Nebraska courts in connection with the Simants case were un-Constitutional.' 55 Reciting the test enunciated by Learned Handin Dennis v. United States, whether "the gravity of the 'evil', dis-counted by its improbability, justifies such invasion of free speechas is necessary to avoid the danger,"' 56 the Court concluded:

Reasonable minds can have few doubts about the gravityof the evil pretrial publicity can work, but the probabilitythat it would do so here was not demonstrated with thedegree of certainty our cases on prior restraint require.1 57

The Court's analysis focused largely on three points: the na-ture and extent of pretrial publicity, the availability and efficacyof other means to mitigate the effects of unrestrained pretrial pub-licity, and the effectiveness of a restraining order to prevent preju-dicial publicity in negating the right to a fair trial.15 8 First, it de-termined that the prediction of the impact of prejudicial publicitywas necessarily speculative.' 59 Then, upon reviewing measuresshort of prior restraint that were outlined in Sheppard, 60 the Courtfound the record did not support a finding that such measureswould be inadequate.' 6 ' Finally, it emphasized the problems inher-ent in use of the restraining order as a means to protect the rightto a fair trial. Not convinced that the restraining order in question

154. Id. at 499.155. Nebraska Press Ass'n v. Stuart, 44 U.S.L.W. 5149 (U.S. June 30,

1976).156. Id. at 5156, citing Dennis v. United States, 183 F.2d 202, 212 (2nd

Cir. 1950), aff'd, 341 U.S. 494 (1951).157. Id. at ,5158.158. Id. at 51,56.159. Id.160. 384 U.S. at 357-62 (1966).161. Id. at 5157.

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"would serve its intended purpose", ' 62 the Court underscored theproblems of managing and enforcing such an order. Justice Burgerreferred to obstacles of territorial and in personam jurisdiction, dif-ficulties in drafting such orders, and the potential damage fromrumors in the absence of press reporting. 6 3

Although the Court did expressly recognize that some circum-stances may justify prior restraint, the concurring opinion of JusticeBrennan 64 expressed blanket disapproval of any prohibition onpublication of information about pending judicial proceedings or thecriminal justice system, "no matter how shabby the means by whichthe information is obtained."' 65 That opinion criticized the ad hocbalancing approach of the Nebraska Supreme Court, concludingthat damage to the right to an impartial jury "could never be con-sidered so direct, immediate and irreparable, and based on suchproof rather than speculation, that prior restraints on the presscould be justified....

The unanimity of the Supreme Court Justices in ruling the re-straining orders in Nebraska Press Association v. Stuart to be un-constitutional, while somewhat surprising, is certainly a welcomedevelopment in the law relating to the free press-fair trial contro-versy.

Perhaps the only unfortunate aspect of the opinion, althoughits guidance on restraining orders seems quite clear, is its failureto rule definitively on the constitutionality of the closed prelim-inary hearing as a means to accommodate the first and sixthamendments. The forces marshalled for the conflict in NebraskaPress Association v. Stuart may very well reconstitute for battleon this undecided front.

Thomas G. Abbey-'77

162. Id. at 5158.163. Id. at 5157-58.164. Id. at 5159 with whom Justices Stewart and Marshall joined.165. Id. at 5163-64.166. Id. at 5168.

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or of the press. amend. I