Nebraska Press Association, et al. v. Hugh Stuart, Judge, District Court of Lincoln County, Nebraska, et al.
Docket No. 75-817 427 U.S. 539, 49 L.Ed.2d 683, 96 S.Ct. 2791 ( 1976) Argued April 19, 1976. Decided June 30, 1976.
Sheppard v. Maxwell ( 1966) is thought by many observers to have made the courts a bit more sensitive to the importance of an impartial jury and to its role in guaranteeing this Sixth Amendment right. It is not surprising, therefore, that a judge eventually would attempt to protect persons accused of a crime from potentially prejudicial pretrial publicity simply by forbidding the publishing of information contrary to the interests of a defendant.
The essential question raised by this form of prior restraint is (assuming such a curb on the press is efficacious; that is, that this curb would actually guarantee an impartial jury) whether or not it is necessary to protect a defendant's right to a fair trial. Could other measures -- in particular, measures not restricting First Amendment rights -- be used to decrease the possibility of a jury prejudiced against a defendant?
Another important aspect of this case is the defense's argument that, since a criminal trial does not begin until the time a jury of the prescribed number is sworn and ready to hear the evidence, news stories printed prior to this point represent pretrial publicity. (The Court ruled in Wade v. Hunter ( 1949] that for purposes of double jeopardy a trial begins when the first witness is sworn, but in Downum v. U.S. [ 1963] it ruled a trial egins when the jurors are sworn.) Although the Court declines in Nebraska to address the question of deciding exactly at what point for First Amendment purposes a trial starts, eventually it will be unable to avoid the issue because the tactic tried here (of denying the mass media access to information) will be extended over time to include what are often termed pretrial procedures.
Moreover, since much of the Court's attention in the past had been directed toward the damage imposed by the publication of a confession, it is not surprising that the damage to a fair trial caused by knowledge of a