Ironclad free press ruling remains unchallenged 40 years after Nebraska case

After a sensational crime rocked Lincoln County, Nebraska in 1975 local judges issued a court order restricting what the local and national news media could report about the case. Objections to what are called a “gag order” on reporters made its way to the United States Supreme Court.

The Supreme Court's decision supporting newspaper and broadcast news reporters remains one of the most important rulings the Court has ever issued.

“The press may be arrogant, tyrannical, abusive, and sensationalist, just as it may be incisive, probing, and informative. But at least in the context of prior restraints on publication, the decision of what, when, and how to publish is for editors, not judges.” – Justice William J. Brennan, writing in Nebraska Press v. Stuart, 1976

Mark Scherer, a professor of history at the University of Nebraska at Omaha, wrote a book on the case, "Rights in the Balance: Free Press, Fair Trial & Nebraska Press Association v. Stuart." He recently talked about the case with Bill Kelly of NET News.

The crime

SCHERER: In the fall of 1975 a fellow by the name of Erwin Simants, an itinerant misfit of sorts, killed six members of the Henry and Marie Kellie family. He killed them in cold blood. It was a grisly, awful event involving some sexual depravity Simants was of deficient intellectual capacity and his motives for the killings remain fuzzy to this day He became the subject of a massive manhunt (before his arrest). There was all sorts of drama and a crisis atmosphere after the crimes had been discovered.

Lincoln County in the national spotlight

SCHERER: As the word began to spread, local and state level media outlets got wind of the story. The major newspapers and broadcast channels out of Lincoln and Omaha rushed to get their reporters to the scene. It quickly spread to the regional and national level. It became kind of a media sensation.

The backlash

(Lincoln County Attorney, Milton Larson, with the support of Simants’ defense counsel, asked the court to issue a motion of restrictive order which listed "may or may not be publicly reported in reference to this case." Lincoln District Judge Hugh Stuart agreed with the county court and granted what was referred to by the press as a “gag order” limiting what they could report before a jury was seated for the trial.)

SCHERER: The state's strongest argument was (the Simants' case) was a unique circumstance given the isolated, rural nature of the area surrounding the location of the crimes, that in this particular set of circumstances the danger of a tainted jury pool is even greater than it would be in a much more populated area where there is greater ability for news to be diffused to tens of thousands of potential listeners as opposed to dozens or hundreds that would have been in the jury pool here.

It's important to remember the initial request for some sort of restraint on the press came in a joint motion by both the prosecution and the defense teams, concerned about this possible prejudicial effect. Nobody wanted to see this trial of Simants tainted by any sort of later sixth amendment claims (trial by an impartial jury). I've always held the belief that none of the judges imposing these gags on the press (were) doing it out of any kind of malice or flimsy thinking. They in good faith believed it was necessary to take strong action to limit what the press was reporting in order to preserve the impartiality of the perspective jury pool.

“Because of the nature of the crimes charged in the complaint that there is a clear and present danger that pre-trial publicity could impinge upon the defendant's right to a fair trial." - Lincoln District Court Judge Hugh Stuart

The media fight back

SCHERER: The media were particularly outraged because what the judges ultimately gave (the prosecutor and Simants’ attorneys) was a prohibition on the press's publishing of information that was widely available through other sources, including through public records available to anybody that wanted to walk in off the street to the Clerk of Court's office and ask for these records which seemed, to the press, to be absolutely preposterous.

The U.S. Supreme Court listens

(In December, 1975 the Nebraska Supreme Court agreed the gag order was needed to assure the Court could find an impartial jury. The trial proceeded and Simants was convicted, but the Nebraska Press Association, along with major media outlets across the country, petitioned the U.S. Supreme Court to overturn the ruling, arguing the gag orders were "capable of repetition" in this and other court hearings.)

SCHERER: The Press Association felt strongly enough about the principle at stake here to want the issue addressed by and ultimately the U.S. Supreme Court accepted the case for review, which is an indication the court saw this as an important constitutional issue that needed to be addressed. That (the news media) couldn't publish this sort of information was a direct and ongoing violation of the First Amendment protections afforded to the press. It's really as simple as that. They felt the language used in the gag order was overly broad, that there were other methods that could be used (by the court) to reduce the possibility of tainting the jury pool.

"(I) urge upon you today a ruling which would be unthinkable in any nation in the world except ours, and unlikely in the rest. That it is, in our view, entirely consistent with American history makes it no less remarkable but simply points to the remarkable nature of that history, for what we would ask of you is nothing less than a renunciation of power." - Floyd Abrams, representing national media organizations.

The Nebraska Attorney General defends the gag order

(Nebraska Attorney General Harold Mosier, joined the Lincoln County Attorney in defending the gag orders before the U.S. Supreme Court.)

SCHERER: I think the strongest argument at that time is the United States Supreme Court should be reluctant to second guess the decisions that are made on the front lines of the conflict by trial judges. Trial judges are the men and women in the trenches who are doing the nitty-gritty work of our criminal legal system. The argument would be for (Attorney General) Mosier is that the local trial court is handling the case knows his or her community, knows what's being reported and said and whispered around in coffee shops, et cetera. They are in a better position than judges sitting 1,500 miles away in Washington, D.C. as to what needs to be done to protect the jury pool.

“Your Honor, it was not a total restriction. It was merely a restriction until the jury was empaneled and placed in a box. At that stage of the game, the press was free to let it all hang out. There was nothing to restrict them after the jury was in a box, it was simply an attempt, a very sincere attempt, to balance the first amendment and sixth amendment." - Nebraska's attorney general, Harold Mosier, arguing before the Supreme Court

The ruling

(In a unanimous decision the U.S. Supreme Court reverses the Nebraska court rulings, stating the gag orders were an unconstitutional violation of First Amendment protections of a free press. The evidence, according to the opinion written by Chief Justice Warren Burger made it “far from clear that prior restraint on publication would have protected Simants' rights.”)

SCHERER: (The opinion) establishes the principle that almost any attempt by a court to restrain the publication of pre-trial information is going to be extremely difficult to justify. The decision makes it almost impossible for any court to place those kind of constraints on press coverage. It held that there were less restrictive means to control pre-trial publicity.

“The problems presented by this case are almost as old as the Republic.” - Chief Justice Warren Burger, writing for the Supreme Court.

The impact

SCHERER: Why does it resonate? Why does it reverberate down to the present day? It really becomes the definitive final say by the Supreme Court on this particular issue. We see now that the emphasis has shifted toward what we refer to as ‘indirect gags’ or ‘participant gags,’ that is the courts will issue orders prohibiting parties involved in a lawsuit or the attorneys involved from talking to the press. They're not efforts to directly gag the press but rather the sources that the press uses.

It's relatively rare that you see (a Supreme Court) opinion that settles, for as long as this has, a particular question. Whether we say it’s once in a century or once every 50 years, that's a matter of degree, but yes. I've always felt that this is a case that deserves the attention.

Simants

Erwin Simants had been sentenced to death but two years later he was granted a new trial. His defense lawyers discovered a witness and the sheriff had been having evening card games with the jurors, in violation of the court's order to avoid contact with those testifying.

The second time around Simants was not guilty by reason of insanity and has been confined in the state’s regional center. All attempts to have him released have been denied as of 2016.