NCJ Number: 41570
Title: PRESS UNGAGGED - THE PRACTICAL EFFECT ON GAG ORDER LITIGATION OF NEBRASKA PRESS ASSOCIATION V. STUART
Journal: STANFORD LAW REVIEW Volume:29 Issue:3 Dated:(FEBRUARY 1977) Pages:497-513
Author(s): J C GOODALE
Corporate Author: Stanford University
Date Published: 1977
Page Count: 17
Sponsoring Agency: Stanford University
Format: Article
Language: English
Country: United States of America
Annotation: SPEAKING FOR FIVE JUSTICES IN THIS 1976 DECISION, CHIEF JUSTICE BURGER ATTEMPTED TO FASHION A SECOND EXCEPTION (NATIONAL SECURITY CASES BEING THE FIRST) TO THE 'NO PRIOR RESTRAINTS' RULE FOR FAIR TRIAL/FREE PRESS CASES.
Abstract: UNDER THE STANDARDS LAID DOWN IN HIS OPINION, THE PRESS MAY BE RESTRAINED FROM REPORTING, AT LEAST BEFORE THE IMPANELING OF A JURY IN A CRIMINAL TRIAL WHEN 1) PRETRIAL PUBLICITY IS LIKELY TO BE SO PERVASIVE THAT IT PROBABLY WILL HAVE AN EFFECT ON JURORS; 2) THERE ARE NO ALTERNATIVE METHODS OF DEALING WITH THE PROBLEM THROUGH A) CHANGE OF VENUE, B) POSTPONEMENT OF THE TRIAL, C) QUESTIONING JURORS CLOSELY DURING VOIR DIRE, OR D) CLEAR INSTRUCTIONS AT TRIAL; AND 3) THE PRIOR RESTRAINT WILL BE EFFECTIVE. ANALYSIS OF THE THREE PARTS OF CHIEF JUSTICE BURGER'S TEST AND AN ASSESSMENT OF THE IMPACT OF THE CASE ON FUTURE FAIR TRIAL/FREE PRESS CONTROVERSIES DEMONSTRATE THAT NEBRASKA PRESS ASSOCIATION MUST BE COUNTED AS A STUNNING VICTORY FOR THE PRESS. AT THE SAME TIME THAT IT GAVE LIP SERVICE TO THE PROPOSITION THAT EXCEPTIONS QUALIFY THE RULE AGAINST PRIOR RESTRAINTS IN FAIR TRIAL/FREE PRESS CASES, THE COURT CREATED A TEST FOR THOSE EXCEPTIONS THAT IS IN REALITY IMPOSSIBLE TO MEET. ANALYTICALLY, IT APPEARS DIFFICULT TO READ THE CASE IN ANY OTHER LIGHT THAN BARRING ALL PRIOR RESTRAINTS AGAINST THE PRESS IN FAIR TRIAL/FREE PRESS CASES. UNFORTUNATELY, BECAUSE THE MAJORITY DID NOT ACCURATELY CHARACTERIZE ITS DECISION, IT MAY ENGENDER SOME CONFUSION IN THE LOWER COURTS AS TO THEIR ABILITY TO ISSUE PRIOR RESTRAINTS IN THESE CASES. THE HAZARD THAT THIS CREATES, OF COURSE, IS THE ISSUANCE OF TEMPORARY RESTRAINING ORDERS. HOWEVER, BECAUSE NEBRASKA PRESS ASSOCIATION MAKES ALL SUCH RESTRAINTS UNCONSTITUTIONAL, DISOBEDIENCE AND COLLATERAL ATTACK FREQUENTLY SHOULD BE APPROPRIATE AND EFFECTIVE IN PREVENTING CONTEMPT CONVICTIONS. THEREFORE, DESPITE ITS FAILURE EXPLICITLY TO BAR FAIR TRIAL PRIOR RESTRAINTS, NEBRASKA PRESS ASSOCIATION SHOULD RAPIDLY DISCOURAGE SUCH RESTRAINTS. (AUTHOR ABSTRACT)... ELW
Index Term(s): Analysis; Fair trial-free press; Freedom of the press; Judicial decisions; Right to fair trial; Rights of the accused; US Supreme Court
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