NEBRASKA PRESS ASSOC. v. STUART

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Argument of E. Barrett Prettyman, Jr.

Chief Justice Warren E. Burger: We will hear arguments next in 75-817, Nebraska Press Association and others against Stuart.

Mr. Prettyman, you may proceed whenever you are ready.

Mr. E. Barrett Prettyman, Jr.: Thank you.

Mr. Chief Justice and may it please the Court.

I am Barrett Prettyman, Jr. and I represent a group of newspapers, Press and Broadcasting Associations; UP, AP, Sigma Delta Tau Chapter and several individual journalists.

Mr. Floyd Abrams is with me representing certain amici will also argue for a reversal in this case.

The basic question before the Court is whether it is permissible under the First Amendment for a Court to issue a direct prior restraint against the Press, prohibiting in advance a publication or reporting of information revealed in Public Court proceedings, Public Court records and from other sources about pendent judicial proceedings.

The case arose out of multiple murders.

Justice William H. Rehnquist: You are going to define that prior restraint somewhere in your argument, Mr. Prettyman?

Mr. E. Barrett Prettyman, Jr.: I certainly think that under any definition Your Honor, it applies here and that is, it is in this case at least, it is an order not to print certain information in advance of that information being printed.

This case as I said arose out multiple murders in Lincoln County in Nebraska back in October, 1975.

The suspect, a man named Simants was arrested the following morning which was a Sunday and on Monday and Tuesday as would be normally expected, there are a number of stories, factual in nature appeared in the local media.

They told about his arrest.

They mentioned that the Lincoln County Attorney have said that Mr. Simants had made a statement.

The Lincoln County Attorney had said that he had a theory about the motive which would be brought out when the autopsy was completed and it was also reported that one person had said that Simants father had told him that Simants had told the father the he had committed the killings.

Justice Potter Stewart: What are the local media in the Lincoln County?

Mr. E. Barrett Prettyman, Jr.: Actually, there is no newspaper in Sutherland, the small town of 800 where it occurred.

The North Platte Telegraph is the nearest newspaper.

There are a number of other newspapers from Omaha and Denver and so forth which permeate -- which come into the state.

There are a number of radio stations and there are also several television stations.

I think we can assume for present purposes that all the media were in the state.

Justice Potter Stewart: There is no local media right in this town?

Mr. E. Barrett Prettyman, Jr.: Not in Sutherland.

In North Platte there is a newspaper.

Justice Potter Stewart: Is North Platte is the county seat?

Mr. E. Barrett Prettyman, Jr.: Yes.

It is not very far away.

Justice Potter Stewart: And there is a --

Mr. E. Barrett Prettyman, Jr.: North Platte Telegraph.

Justice Potter Stewart: -- a newspaper and what, two or three radio stations?

Mr. E. Barrett Prettyman, Jr.: That is my understanding, yes sir.

On the Tuesday evening, the prosecutor, in advance of a preliminary hearing that was expected the next day, moved for a prior restraint in the County Court.

No evidence was admitted to back it up.

The County Court entered an order the following day in which he said that because of the reasonable likelihood of prejudicial news that would make it difficult, if not impossible to impanel an impartial jury, he was entering the order.

It was a very broad order.

It prohibited not only any evidence that would come forward at the preliminary hearing, but any evidence apart from the preliminary hearing except as would be allowed in certain voluntary Press-Bar Guidelines that were then in effect in Nebraska.

That order would have remained in effect even after trial.

As a result of that order which the Press chose to obey, the Press could not report the following day what happened at the preliminary hearing, even though it was an open preliminary hearing.

The public was there, the Press was there, anybody who wanted to be, could be there and could leave and go out and tell anybody he wanted to what had happened, but the Press was prohibited from reporting what had occurred.

Chief Justice Warren E. Burger: Mr. Prettyman, could that have been in a closed hearing with the consent of the defendant?

Mr. E. Barrett Prettyman, Jr.: We are in a strange situation in regard to closed hearings there because you have a statute that says that it had to be open, but the Nebraska Supreme Court in this case seems to be interpreting in a way that seems to allow to have been closed.

Certainly the judge at the time thought that that hearing had to be open.

I would argue with you in a different case that it had to be open constitutionally, but that is not this case.

There is nothing before you in regard to the closed hearing problem.

Since the Simants case was actually --

Chief Justice Warren E. Burger: Do you agree Mr. Prettyman that to entertain the arguments you advance, we must explore all of the alternatives to what you characterize as prior restraint?

Mr. E. Barrett Prettyman, Jr.: I think you must say that there are certainly -- I would certainly argue that there are many alternatives available.

I would certainly hope that you would bank on the Sheppard type alternatives and not on closed hearings.

I think a closed hearing is the hand-made until the prior restraint and certainly when they used either alternatively or even worse, hand in glove with each other, then you have really effectively stopped the complete flow of news.

Chief Justice Warren E. Burger: Would you take the same view of an order directed at prosecutor and the defense counsel, that they would be held in contempt if they discussed the case publicly?

Mr. E. Barrett Prettyman, Jr.: Again, Your Honor, that is not this case.

I want to stress it because there is no such order in effect here.

It is an alternative that was suggested in Sheppard.

In a different case, I might be before you arguing that that is impermissible, but again, it is not this case.

I certainly agree that it was an alternative suggested in Sheppard.

Justice John Paul Stevens: Would it be a prior restraint, if you order the prosecutor not to discuss the case?

Mr. E. Barrett Prettyman, Jr.: Well, it would be a prior restraint on the prosecutor.

Justice John Paul Stevens: It would be that the same constitutional principles apply or not?

Mr. E. Barrett Prettyman, Jr.: Absolutely not, Your Honor.

I certainly think not --

Justice John Paul Stevens: That it is a prior restraint is not controlling?

Mr. E. Barrett Prettyman, Jr.: In the prior restraint on the prosecutor, you have a free speech problem for the prosecutor, but you do not have the direct prior restraint on the Press that you have here.

Justice John Paul Stevens: How important is the label prior restraint?

Mr. E. Barrett Prettyman, Jr.: Well, I think insofar as this case is important, I do not know that the label means very much, but what actually occurred is of extreme importance, that is you have directly prohibited the Press from publishing a certain information.

Now, whether you want that label or some other, that is the issue here whether you can do that under the First Amendment?

Justice Byron R. White: (Inaudible)

Mr. E. Barrett Prettyman, Jr.: Absolutely.

Justice Byron R. White: And (Inaudible) prior restraint (Inaudible)

Mr. E. Barrett Prettyman, Jr.: That may well be -- that is correct and in the next case you may have to decide that, but certainly, if you are going to have prior restraints, the one that is worst, the one that affects the public the most, the most onerous one is the one that is the direct prior restraint on the Press as this Court has recognized in New York Times and University of Minnesota and in a lot of other cases.

Chief Justice Warren E. Burger: Those extreme examples that to a degree the rules of evidence and the rules of procedure are a restraint on the lawyers who are appearing in the courtroom?

Mr. E. Barrett Prettyman, Jr.: Sure.

Chief Justice Warren E. Burger: And so --

Mr. E. Barrett Prettyman, Jr.: Just as you can restrict the Press in a courtroom too, from not sitting inside the bar and from doing a number of -- taking pictures and from doing a number of things.

Chief Justice Warren E. Burger: What about sound equipment?

Mr. E. Barrett Prettyman, Jr.: Absolutely, there is no question, but that you can impose some restrictions on the Press.

The Court has always distinguished between those incidental restrictions and the direct prior restraint, forbidding a newspaper not to publish.

Justice William H. Rehnquist: Do you say that the prior -- the cases say that prior restraint comes here with a heavy presumption against it, are at least at their core, limited the case is involving the Press rather than the individuals?

Mr. E. Barrett Prettyman, Jr.: Yes sir.

I would say that Your Honor.

I do not think that you have directly have applied the same standards here before.

Justice Byron R. White: Interpreted broadly.

Interpreted broadly, is that correct?

Mr. E. Barrett Prettyman, Jr.: Yes, that is correct.

I want to emphasize that the order that I have just described was not the order before you.

I am going through the four orders and to give you a feeling of the difficulty of this area because four orders have been entered in this case and they are all different.

Because of that County Court, because of the trial was going to be in the District Court, the petitioners here went to the District Court and asked for him to strike the County Court order and the District Court entered its own order and its grounds was because of the nature of the crimes charged.

He said that there was a clear and present danger that the pretrial publicity could impinge on defendant’s right to a fair trial.

He also included those guidelines as part of his order, but he changed a number of items and said for example that we could not report the identity of persons sexually assaulted in connection with these murders.

That order would have remained in effect until after the jury was sworn.

After a number of procedural problems with which the Court is fully familiar and it does not bother us now so I would not go through them.

Mr. Justice Blackmun entered an order granting in part and staying in part the District Court's order.

He eliminated the guidelines as being too broad and vague and he did allow certain information to be published, but he also prohibited the publication of other items, including facts strongly implicated with the accused or facts highly prejudicial to the accused.

That order was then succeeded by the Fourth Order which is the one that is before you and that order is the one of the Nebraska Supreme Court entered on December 1, 1975.

It too, eliminated the guidelines, but it prohibited the publication of the existence or content of confessions or admissions against interest, made by the accused to law enforcement officers or the third parties except to the Press.

And it also prohibited, “other information strongly implicative of the accused as the perpetrator of the slain,” whatever that means and we are not sure.

That applied interestingly only to petitioners and not to all the other media and it was effective only as to events which had occurred prior to the entry of the order.

As a result of all four of these orders, the Press was prohibited from publishing information, most of it coming from public records and public hearings for over eleven weeks.

The trial followed and Mr. Simants was found guilty.

Now, insofar as this Nebraska Supreme Court Order prohibited the publication of news, developed in an open-Court hearing or from open Court records, I just do not think there can be any question and I submit to you, it is very clear that is blatantly unconstitutional under Craig versus Harney and Estes versus Texas and Cox Broadcast.

Unknown Speaker: Can anyone just take question of information, Mr. Simants has been convicted, has he not?

Mr. E. Barrett Prettyman, Jr.: Yes sir.

Unknown Speaker: Has he been sentenced to death?

Mr. E. Barrett Prettyman, Jr.: Yes sir.

Unknown Speaker: Is there an appeal in that case in Nebraska Supreme Court?

Has it been heard?

Mr. E. Barrett Prettyman, Jr.: No, it is my understanding that has not.

Unknown Speaker: So that there is a possibility that there might -- that could be heard.

He might want a reversal and revoke the trial.

Mr. E. Barrett Prettyman, Jr.: Correct, Your Honor, correct.

In which case I assume the same order would be entered again if this Court allowed it to do so.

Justice Potter Stewart: In the first trial, once the jury was impaneled and sworn it was sequestered?

Mr. E. Barrett Prettyman, Jr.: It was.

Justice Potter Stewart: The first trial, I suppose was fully reported by the news media, was it not?

Mr. E. Barrett Prettyman, Jr.: That is correct.

Justice Potter Stewart: So, if there is a new trial, the community has been apprised, there are things that came out in open Court?

Mr. E. Barrett Prettyman, Jr.: As a matter of fact in this small community, that community was apprised of everything about this event, with or without the media.

The gossip and rumors are clearly indicated in the newspapers and in the record.

Justice Byron R. White: Why is this a live case Mr. Prettyman, that the order has expired, has it?

Mr. E. Barrett Prettyman, Jr.: The order has expired.

I would assume that you would have already made the decision that this is not a moot case because if you recall, we moved the Court prior to the expiration of the order for an expedited hearing.

We offered to have briefs to you in the typewritten form the next day to have immediate --

Justice Byron R. White: I am accepting your offer now.

Mr. E. Barrett Prettyman, Jr.: Sir, that issue I assume you have already passed on because you put --

Justice Byron R. White: (Inaudible) is still a live case?

Mr. E. Barrett Prettyman, Jr.: I think it is a live case because not only for the reason mentioned by Mr. Blackmun that this order could be entered again in regard to this very person, but that orders are coming down from all over the country.

We have had eleven of them in the last six months and this a problem which is typically under your decisions of such short duration that unless you are going to take these and face these and rule on them now, they are just going to continue into an effect and expire before you can take one that is alive.

I think it is not only capable of repetition, but it is being repeated everyday.

We just had one entered the other day in Nebraska.

Justice William H. Rehnquist: In Sosna and Weinstein against Bradford which was a per curiam that came down a couple of months ago.

we made it rather clear that they are capable of repetition, but evading review standard applied to these particular litigants not just to the issue in general?

Mr. E. Barrett Prettyman, Jr.: Well, I think you have done that Your Honor and in response that, I would simply say that in Carroll, that case was moot in Java on the Third Circuit, that case was moot and the Court nevertheless took it and decided it and I would assume it did so on two grounds.

And Judge Cassel incidentally also did it in a District Court after the firing of Mr. Catz and it did it on two grounds.

One was that it could actually apply to the parties in the same sense that Mr. Justice Blackmun just pointed out, but also that issue was of such moment and was occurring again in other situations and was otherwise so incapable of being decided quickly, that it was necessary for the Court to hear it.

Justice William H. Rehnquist: Just an exception to Article 3?

Mr. E. Barrett Prettyman, Jr.: It is a kind of exception, yes sir.

Chief Justice Warren E. Burger: Hypothetically, I emphasize hypothetically possible that the case might come here and we reversed with the Sheppard Case treatment?

Mr. E. Barrett Prettyman, Jr.: Yes.

Chief Justice Warren E. Burger: Even after we have decided this case.

Mr. E. Barrett Prettyman, Jr.: I am sorry.

I did not get that purport.

Chief Justice Warren E. Burger: Even after we have decided this case, suppose we decided in your favor?

Mr. E. Barrett Prettyman, Jr.: Yes, you decide that prior restraint is impermissible.

Chief Justice Warren E. Burger: And then his case comes up here, hypothetically and theoretically, we could reverse on the ground that there were excessive publicity.

Mr. E. Barrett Prettyman, Jr.: You certainly could.

You might -- I would be very surprised because I do not see how the publicity in this case could conceivably be called excessive.

It was very factual and it was limited, but it is perfectly possible that you could take the case and reverse it on that ground, yes sir.

Justice Thurgood Marshall: The bottom line is that, if we hold it, he might be retried, that is not keep it alive?

You do not have to push the other point, do you?

Mr. E. Barrett Prettyman, Jr.: That is right, sure.

I emphasize that insofar as the order prohibited what occurred in open Court, it seems to be you have already ruled on it and you have said that is impermissible.

But this order went further as I have said and would keep us from talking to people and finding out things about this judicial proceeding, and therefore, I have to go further.

And I think in order to make the point, let me give you a hypothetical, because it seems to me that the fact that the fact that this is the Press somehow is giving the courts a strange impression that you could enter these orders that they would not do under other circumstances.

Let us just suppose for a moment, that very minister, priest and rabbi in Lincoln County had gotten to -- everyone of them had gotten together a couple of weeks before this gentleman’s trial and they had decided that Mr. Simants was the embodiment of the devil and that they are going to have to do something about it.

They will going to make him a symbol and that they were going to get together on the next Sunday or Saturday in their pulpits and they will going to reveal his confession.

They are going to reveal the sexual nature of his crimes.

They were going to condemn him as guilty and the they are going to ask the death penalty.

And in order for me to make my point if you will assume with me that all of the overwhelming majority of the people in Lincoln County went to their churches and synagogues that is next Sunday.

Is there any question, but that this Court would sanction a prior restraint on the giving of those sermons.

I do not think that any judge would say that you could enjoin those people from getting up in their pulpits and talking about his confession.

And yet somehow, it somehow does not seems so bad to the courts, at least that what is going on around the country, when they do it in regard to the Press and the others, you pointed Mr. Justice Stewart in your Yale speech, the Press is the one private organization that is carved out and mentioned specifically as entitled to protection under the First Amendment.

Justice William H. Rehnquist: What if the Lincoln County Bar Association had done what your hypothetical calls for the priests, rabbis and pastors doing at a meeting at the Lincoln Country Bar Association?

Mr. E. Barrett Prettyman, Jr.: I think that then they might possibly have been held in contempt after the -- that certainly would have been called up on the under canons of ethics, but that no prior restraint possibly have been entered.

Justice John Paul Stevens: Mr. Prettyman what if your ministers had also agreed that they would advocate lynching the man, could a prior restraint be permitted then?

Mr. E. Barrett Prettyman, Jr.: I do not believe so.

No, sir.

Justice William H. Rehnquist: How is the President of the Lincoln County Bar Association any better off, if he is called up on a contempt and fined $500, then if he is preliminary enjoined, cited for contempt when he makes the speech and fined $500 per civil contempt?

Mr. E. Barrett Prettyman, Jr.: Well, Your Honor, the difference between prior restraint and a contempt after the event has just been made so clear through all of your opinions.

In the prior restraint, in the first place people tend to obey them, and therefore, it directly prohibits them doing of the event and in the second place, if he is going to be held for a contempt, he can contest the order itself.

He can even get a jury trial.

He can contest the contempt order, but in a prior restraint, you cannot do it.

If their prior restraint is entered, you then must obey it under the laws it now stands until it is reversed on appeal and if you go in and try to attack the order, the only defense is that you did not violate it, but you cannot attack the order itself.

So there is a great difference between the two situations, certainly in terms of impact.

We say that the assumption that someone who hears about a case, even an alleged confession, the fact that he cannot be impartial or if he is partial, but he cannot be weeded out during the voir dire is simply unsupported.

In fact, it is directly refuted by statutes in Nebraska and elsewhere which we have cited in our reply brief which allow jurors to sit, even if they have formed opinions of guilt from reading newspapers so long as the judge is satisfied that the juror is impartial.

The courts have made it clear from United States versus Burr in 1807, all down through Irvin v. Dowd and Reynolds and Murphy versus Florida, that juror can give an impartial verdict even if he has some preconceived notion as to guilt.

And if we need any examples of that, we certainly have them recently with Cali, Chapen, Mitchell, Connelly, Lily, all of whom stand as it seems to me irrefutable proof that even all pervasive publicity does not necessarily result in an unfair trial.

We trust our juries in so many ways.

We sit there and tell them, look, do not listen to the confession given by your co-defendant.

It does not apply for you and we give them these instructions and we trust them and we expect them to do their job and yet Nebraska is not willing to concede that with proper voir dire and proper constructions that you cannot find 12 people who were going to give this man an impartial and fair verdict.

There are ample ways, short of prior restraint to deal with adverse publicity.

Sheppard, I counted, 12 of them in Sheppard and I do not need to go through them because you are certainly aware of them, but certainly two of them, change of venue and continuance, neither which were given here would obviously be what --

Justice Potter Stewart: Voir dire of the question for a change of venue that was denied?

Mr. E. Barrett Prettyman, Jr.: This is not in the record, but the fact is that --

Justice Potter Stewart: That is what I read in the briefs?

Mr. E. Barrett Prettyman, Jr.: Yes.

That there was a request for a change of venue which was denied, there was not a request for a continuance and the judge did not grant one sui sponte.

Justice Potter Stewart: And under the Nebraska Law, the change of venue could be only to an adjacent county, is that correct?

Mr. E. Barrett Prettyman, Jr.: Yes, that is correct and our response to that is two-fold.

First of all, even if you put the surrounding counties together, you have got over 80,000 people, so you certainly could be able to find 12 jurors, but secondly, under the Groppi Case and Irvin v. Dowd, I think that that provision would be unconstitutional if it in effect prevented him from getting 12 impartial jurors.

Chief Justice Warren E. Burger: The trial judge handed an order, a protective order along the lines you intimated as an alternative, namely, a written directive or directive on the record to the prosecutor that he is not to talk to anyone, specifically including media, to the defense counsel, the same, to the witnesses, would the media representatives be in violation if they importune these people who violate the order?

Mr. E. Barrett Prettyman, Jr.: No I do not believe so, Your Honor.

Chief Justice Warren E. Burger: Could an order appropriately be entered that they should importuned not to violate the order?

Mr. E. Barrett Prettyman, Jr.: That would be an order prohibiting access.

It would be an order in effect stopping them from seeking that news and I think it would have many of the same constitutional infirmities that this one had.

It would not be as direct, but I think it would be close to it.

Chief Justice Warren E. Burger: It is alright to put the order on the attorneys?

Mr. E. Barrett Prettyman, Jr.: I have said, I do not conceive the constitutionality of that.

I simply said that is not involved here and that I recognize that Sheppard cited it as one alternative.

Chief Justice Warren E. Burger: Would you suggest whether the alternatives that you think would survive constitutional scrutiny?

Mr. E. Barrett Prettyman, Jr.: Well, I think certainly, that a continuance would.

I think certainly a change of venue would.

I think when you get to trial certainly sequestration would.

I think that you can even bring in a foreign jury if necessary if it came down to that bad a case.

But I want to emphasize to you that somehow the assumption is, that simply because you have a danger that a jury might hear some bad things, that you are not going to have a trial.

Suppose Jack Ruby had shot Oswald on television and every single person in the United States saw it, you would not say that Ruby would not be tried, that he could go free.

You would get him a trial as best as you could.

You would give him a continuance and maybe for a long time, you would have the most extensive voir dire you could possibly have, you would have strong jury and instructions, but you would not say go free.

Chief Justice Warren E. Burger: Was that the issue really in that Mr. Prettyman or is the issue that a defendant has a constitutional right, if you protect it from the influences that will impair a fair trial?

Mr. E. Barrett Prettyman, Jr.: But that is what Sheppard is all about, that what is Sheppard gives him.

It gives him a number of ways that he can protect himself short of prior restraint.

It is very instructive that in Sheppard, despite that all of these ways that were listed, the Court three times made clear that it was not talking about a prior restraint on the Press, and therefore, you do not have this conflict that everyone seems to assume you have.

We have ways of protecting Jurors, and that is the point that I want to make most strongly that you can protect them and that you have a constitutional jury, as I say, even if you have people who have read the newspaper and who come to the jury room first with some kind of preconceived notion.

As I say, they even have a statute in Nebraska which makes certain, that a juror is not stricken just because he has read a newspaper and had heard some bad publicity.

The judges have the right to determine for themselves whether that man is impartial.

I want to save a little bit of time for rebuttal so can I just simply say that it seems to me that to -- at this point in time, after 200 years, when we have let our Press print what it is able to get, to subject them now to a prior restraint after all of this time is to take away one of the great liberties that we have had.

I do not think we have to look very far on the world.

I do not think we have to look very far outside of this country to understand the extraordinary importance of allowing the Press, the only really free Press probably left in the world to publish what it has gotten hold off so that the public can be contemporaneously informed of all of that.

If one of those Watergate people had broken in and had immediately confessed that he had broken into Democratic Headquarters at the directions of the White House, can we restrain for six months from trial time the fact that that it happened.

That is what you are get into.

You are going to get into decisions as to well some of these confessions maybe or ought to be in the public interest would get them out and some of we should not.

Do not put the courts into that position.

They are not equipped to handle it and values are too great.

Thank you.

Unknown Speaker: Mr. Prettyman, let me inter check the moment of lightness in all the seriousness.

You represent the Omaha World-Herald?

Mr. E. Barrett Prettyman, Jr.: Yes sir.

Unknown Speaker: A judge of the Eight Circuit sent me this very brief clipping from the Omaha World-Herald, your client.

I read it in its entirety.

As illustrative of “a responsible press,” three justices of the Nebraska Supreme Court and Judge Donnelly of the Eight Circuit Court of Appeals in St. Louis will take part next week in a seminar on appellate practice in Nebraska.

Anyone having information that leads to the arrest and conviction of the person or persons responsible are asked to contact Joe Smith.[Laughter]

Mr. E. Barrett Prettyman, Jr.: I think Jefferson would have enjoyed that particularly.[Laughter]

Unknown Speaker: I indicated it was a moment of lightness, I am not (Inaudible)

Chief Justice Warren E. Burger: Mr. Abrams.

Argument of Floyd Abrams

Mr. Floyd Abrams: Mr. Chief Justice and may it please the Court.

Mr. Prettyman represents as he has advised you, a large elements of the Nebraska Press.

I appear today on behalf of a variety of publishers, broadcasters and journalists from around the country to join with that Press and to 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 asked of you is nothing less than a renunciation of power, a conclusion by this Court that the judiciary should not, indeed and may not, tell the Press in advance what news it may print, save only in that rare national security situation and that rare national security case adverted to by this Court in Near Versus Minnesota in the Pentagon papers case.

And what we urge upon you is that renunciation occurred over 200 years ago, that has been reaffirmed by this Court since its formation and that you should reaffirm it today.

Mr. Justice Stevens asked earlier whether the label prior restraint was important here and what the relevance of it is and I would like to devote the bulk of my remarks to that question.

I would like to start historically because I think it is important to note that until very recently it was accepted by one and all that whatever else could be done to the Press with respect to pretrial publicity, the one thing that could not be done was any kind of prior restraint.

20 years ago this month, if can be personal for a moment, I was on college debating team we used to talk about this subject and debate this subject full-time for a year and of all the remedies that people proposed to control what was then thought sometimes to be an irresponsible Press, no one even suggested in the scholarly works or in our debates the idea of prior restraints.

So understood was it that while there could be some areas perhaps for contempt of Court after trials are over, that there could be no prior restraints in the area and we were not alone.

The cases supported us as they existed then, our briefs submitted on behalf of the amici curiae that I represent indicate that in our effort to survey all the cases in this area in American history, we come upon only five prior to the Sheppard Case in which there is any reports at all of any attempt to obtain a prior restraint against the Press and that each of those cases, it was easily and summarily reversed, they have of course in many cases since Sheppard.

And while it is true that almost all of them had been reversed, all but one, two or three at the most, it is also true that prior restraints on the Press around the country are becoming a common place.

Within the last year, New York has had its first.

New Jersey has had its first and its second and Nebraska has had its first and second and third.

But I think it is a fair question to ask what is new or what has changed to lead to the start of a process by which prior restraints are now being issued in almost common place fashion.

What I would urge on you, it is not that the Press has been more irresponsible by anyone’s judgment within the last few years than the years preceding it.

The days of the front page are over if they ever existed and even if Harry Hurst trial bore no resemblance to that of Sam Sheppard or Bruno Hauptmann.

It is not the guilty defendants are walking free on the streets because of the Press and because there is sometimes perhaps excessive pretrial publicity and it is not the innocent man, so far as we can tell, are in jail because of irresponsible Press coverage of trials.

And it is not, I would urged on you, that we now have reason to think that juries are less trustworthy than we ever thought they were and as Mr. Prettyman indicated, I can hardly think of a time in our history when juries have proved their metal in a more strong basis than they have it in the last few years nor is it the studies of scholars, of judges, of lawyers and a journalists have concluded within the last few years that anything had changed and that we should retreat from our abhorrence of prior restraint in this area.

Chief Justice Warren E. Burger: Mr. Abrams neither you so far nor Mr. Prettyman have refereed to the trial judge's post-trial inquiry of the jury.

I hope that some point before you sit down, you will leave us your comments on that?

Mr. Floyd Abrams: Sure, Your Honor.

I will turn on that right now after just observing that there are five separate studies in these area by Bar Association Groups and the like and each of those conclude the prior restraints are constitutionally impermissible or unwise or the both of them.

With respect to the post trial study, I would have a few comments to make.

First, it is really devoid, the record of this case.

Mr. Prettyman in his brief urged upon you that if you care to take account of that post trial study that that petitioners before you should be permitted to put in a post-trial study of their own which is a poll taken by the North Platte newspaper of the jurors as to what they meant when the judge asked them those questions after the trial.

I suspect you will not be interested in that poll, but I think it is first to rather unreliable study.

I think the phraseology of the study is to say the least, slanted, and I am struck by the fact as Mr. Prettyman’s brief argues to you that one would believe jurors at the post trial moment when they are asked that question and not believe them when they are asked if they can give a fair trial in voir dire time prior to a trial beginning.

It seems to me that a good part of what is involved in this in this case involves just that question of whether we can trust jurors or not.

As I have urged upon you, we think there is no time in our history when jurors have better indicated their ability to decide cases and to decide them without reliance on outside factors which might have been indicated and which others might have thought might have affected them.

Now, we have urged on you the Sheppard Case.

We have urged it again and again and I just for you to decide whether our interpretation of Sheppard and our reading of Sheppard is correct.

It is supported, we urge on you by Higher Courts in New York and California and by the Court of Appeals for the Fifth Circuit.

And I can think one other reason apart from what I believe to be a misinterpretation by many Lower Courts of the Sheppard decision, for the amount of gag orders or restrictive orders that had been issuing in recent years.

I detect for what it maybe worth to you, a profound and growing sense of judicial concern that what is sometimes is viewed to be your responsibility on the part of the Press and its coverage of Courts and of other matters.

I have been confronted when I have argued before other Courts than this with a number of questions relating to just those matters, relating essentially to matters of responsibility and I could do no more with respect to that and to urge on you the language in the CBS case of the Chief Justice for the majority of the Court that the risks of abuse of the First Amendment are well known to the framers who accepted the reality that risks of those of abuse or evils of which there was no acceptable remedy other than the spirit of moderation and a sense of responsibility and civility on the part of those who exercise the guaranteed freedoms of expression.

I wish to be clear.

We maybe back someday, I suspect, some of us will, representing clients or some of our brethren representing clients will be back urging on you the proposition that a power to hold the Press in contempt is very narrow, that the power to punish the Press for what it prints is narrower still.

But historically, the power to ban the Press in advance, from deciding what to print, is narrowest still and that is this case.

Justice Potter Stewart: Mr. Abrams, before you proceed, I think perhaps I miss something.

You were telling us of the demonstrable sea change in traditional latitude in recent years --

Mr. Floyd Abrams: Yes.

Justice Potter Stewart: -- and then you told us, why was not it attributable to this and not attributable to that and not attributable to the other thing.

What I missed I think was your Henry ending [Laughter] what was it attributable too?

Mr. Floyd Abrams: Justice Stewart, what I meant to convey in Nebraska, I have lost in conveying, but that I think it is attributable to two separate things.

One is in this reading as we view it of the Sheppard case by Lower Courts around the country and the second is what I described as what I view at least or what I see at least, as the continuing sense of judicial concern of the nature of the reporting which occurs with respect to the judicial process.

Those are the two things that I think it is.

It is also I think, and we have urged upon you in our amici brief on this reading of those cases of this Court which deal with the heavy burden on prior restraints.

I did not understand the concept of heavy burden on prior restraints to be an invitation to enter prior restraints when on some basis or another it was thought useful to do so.

We believe that the nature of the prior restraint idea is set forth in the Southeastern Productions Case of Justice Blackmun and that you must take into account in deciding whether they can be prior restraints at all, whether historically, there has been a category established here of prior restraints which are acceptable in this area and an exception to what the Court in Southeastern Production refer to as the prohibition against prior restraints.

Justice John Paul Stevens: Mr. Abrams, let me just ask you a specific question.

What do you do about the problem of the inadmissible confession?

Say, for some reason a confession is very dramatic, but yet it would be rather clear that it would not be admissible to trial.

Is that just something we have to live with?There is no way of curtailing the publication of that kind of information?

Mr. Floyd Abrams: I think you have to live with it, Mr. Justice Stevens and one of the ways that you live with it is by giving jury instructions by appropriate voir dire, by all the Sheppard methods, but to take your questions at its narrowest, yes it is our view that there are such things as we do have to live with if it had finally comes to that, be it confessions or something else.

I would close with this observation.

We well appreciate that there are cases which this Court must sit as a drawer of very hard to draw lines on an ad hoc basis on a case-to-case basis and there are of course areas in which it may properly be set as Justice Holmes did, “that the power to tax is not the power to destroy while this Court sits.”

We believe the power to lay prior restraints on news reporting is the power to destroy and we urge this Court not to permit the birth or growth of such a rule of law.

Chief Justice Warren E. Burger: Thank you Mr. Abrams.

Mr. Mosher.

Argument of Harold Mosher

Mr. Harold Mosher: Mr. Chief Justice, may it please the Court.

I am Harold Mosher, Assistant Attorney General, State of Nebraska.

I am representing the Honorable Hugh Stuart, Judge of the Lincoln County.

Mr. Milton Larson, a Lincoln County Attorney is also with me here today and we will argue a certain aspects of the case.

Let me, if I may, take this case from the top. 8:00 p.m., October 18th 1975, KNOP, the only television station in North Platte began transmitting the NBC Saturday night movie, The Deadly Tower, a dramatization of the 1966 massacre of 16 persons and the wounding of 31 others by a sniper atop the tower, the University of Texas in Austin.

By an uncanny coincidence, the movie provided the electric background for another broadcast mass murder.

About 18 minutes into the movie, a KNOP newsman answered a telephone call from the sheriffs’ office which requested the television station to put a warning on the area that there had been killing at nearby Sutherland, Nebraska and that everyone should lock their doors and windows.

The case at bar was born.

It is, therefore, proper that certain events be reviewed and placed in the proper perspective.

The town of Sutherland is located in Western Nebraska between the North and South Platte Rivers.

It is a cattle country, cattle Country at its very best.

The town of Sutherland had a 1970 population of approximately 800 persons.

The population today is somewhat larger due to a number of transient workers who are employed in the construction of a huge electrical generating facility nearby.

Following the television announcement, law enforcement officers in the Sutherland area continued their investigation of the crime and early the next morning, on a tip by a reliable informer, they arrested the respondent Erwin Charles Simants near the scene of the crime.

Chief Justice Warren E. Burger: Mr. Mosher, suppose that after the restrictive order, challenged as prior restraint had gone into effect, did the local television station decided to re-run the dramatization of the Texas Sniper killings and both the defense and the prosecution came to the court and said this is going to stir up all kinds of passion and prejudice and impede a fair trial and we want a restraining order to restrain the showing of the dramatization of the Texas City Affair.

Do you think that would be an appropriate matter for the --

Mr. Harold Mosher: I doubt it very much Your Honor, I doubt it very much.

Chief Justice Warren E. Burger: We have a tendency to provoke passions and prejudices?

Mr. Harold Mosher: I doubt it.

I really do.

That of course is not at issue in this case, but I really doubt it very much.

When it is all said and done and I will get to it with your permission in a few moments, the so called restraining order here by the Supreme Court of Nebraska is truly a very narrow one and the Court simply was not called upon to go any further and it certainly did not, but just because of a particular aspect like this, I doubt it.

I doubt it because there is so many other variables in the world in which we live.

Movies nearby maybe showing certain types of film which in and off themselves, one might argue would lead to this kind of thing, but I seriously doubt that one could perhaps, in a given case when one make a showing.

I am at loss, however, it suggest what that showing might be.

Justice John Paul Stevens: A quick question, your characterization of the order is a narrow one.

It does include as I understand, the way it has been narrow down the prohibition against publishing any information strongly implicative of the accused as the perpetrator of the slain, do you regard that as a narrow prohibition?

Mr. Harold Mosher: Certainly.

May I get to it in a moment?

Justice John Paul Stevens: Yes.

Certainly, I do not want take your (Inaudible)

Mr. Harold Mosher: Certainly, let me continue though with some facts if I may because I think they are important.

Following his arrest, in fact the same day, October the 19th, Erwin Charles Simants was charged with six counts of murder in the first degree by a complaint filed by the County Attorney and thereafter that same day, Simants was arraigned and the preliminary hearing was scheduled for October 27, 1975.

The statement on page five of the brief of the petitioners is that “On October 20, a Lincoln County Attorney told the Press that Simants have given authorities a statement,” exemplifies the need, in case such as this, for the trial courts to be able to restrict the media in certain cases.

Specifically the quote on page five of the petitioner’s brief refers to read at page 88 of the joint appendix and there sure enough, there is a copy of a newspaper and a quote “Lincoln County Attorney Milton Larson, said Monday, that Simants has given authorities his statement.”

Putting aside for a moment how the reputation of a quotation such as that could influence a community where a jury will ultimately be chosen, is the naked fact that the statement is false.

Indeed the writer who is the Bureau Chief of one of one the nation's largest wire services has now admitted that hearsay of an eminent's driver's husband was falsely attributed to the County Attorney.

That is the petitioners themselves have demonstrated in this Court, at this time, the need for restrictive orders in cases such as this.

It is, therefore, not --

Chief Justice Warren E. Burger: Just an order restricting them from making false statements or making any statements?

Mr. Harold Mosher: I think it means Your Honor is that, first of all, before they are going to get to a question like this, before they would ever to it again, is whether or not this Court is going to allow the Supreme Court of Nebraska to implement Section 3.1 of the Guidelines of the American Bar Association's fair trial free Press.

If you allow the Supreme Court of Nebraska to implement that particular section, the section provides that defense counsel may move, timely move at anytime prior to trial, to close the hearing, to close the hearing and thereby insure that matters of this will not be made public prior to the actual trial.

As you know today, defense counsel has a mere amount of tools at his disposal to discover the Government’s case against the individual.

And any defense counsel who is worthy his salt can certainly learn whether or not there is a confession.

He can also, at that time, make a adequate presentation to the Court that not only should preliminary hearing because of the prosecution in and off itself is not to make public statements about the nature of a confession.

By doing this in this manner, this type of an error simply will not repeat itself.

The same day that this quote appeared in the morning newspaper, the County attorney filed a Motion for Restrictive Order which requested the County Court to restrict publication of testimony to be presented at the preliminary hearing.

Hearing was held on that motion the same evening.

Attorney representing the state, the defendant, and the news media were present.

The defendant’s attorney advised the Court that Simants joined the state's motion to restrict the publication of testimony from a preliminary hearing.

He even went a step further and asked that the restrictive order be brought until close of the preliminary hearing.

The motion of the defense counsel was overruled.

The motion of the state was sustained.

The next day --

Justice Potter Stewart: Mr. Mosher, you have I gather two hearings in Nebraska prior to the trial at least two, one is in arraignment and the other is the preliminary hearing?

Mr. Harold Mosher: That is correct.

Justice Potter Stewart: And which comes first?

Mr. Harold Mosher: The arraignment is the first --

Justice Potter Stewart: And what is the function and purpose of an arraignment?

Mr. Harold Mosher: Primarily, the only function of that is to set a time for preliminary hearing and it serves a second function to determine whether or not the accused has sufficient funds to secure the services of an attorney, that is all is so called arraignment does.

Justice Potter Stewart: There is no evidence --

Mr. Harold Mosher: None whatsoever, none whatsoever.

The Court just simply at that stage of the game merely makes an inquiry if the defendant desires an attorney, and if he has, to secure one and if not, an application at that time is made, the counsel is appointed, and the date for the preliminary hearing is set.

Justice Potter Stewart: There is no pleading?

Mr. Harold Mosher: None whatsoever, absolutely not.

Justice Thurgood Marshall: (Inaudible)

Mr. Harold Mosher: Yes, it can be waived.

Unknown Speaker: (Inaudible)

Mr. Harold Mosher: I doubt it, I doubt it.

It probably could at that time if the defendant was represented by counsel.

But for the defendant in and off himself to waive it at that time, I do not know if the Court would allow it.

We have never had a precise question that I know of in the history of the state.

Unknown Speaker: At the preliminary hearing, does he plead at that time?

Mr. Harold Mosher: At the preliminary hearing?

Very rarely, very rarely.

Unknown Speaker: Generally the purpose of preliminary hearing is to determine whether or not just a prima facie case and whether not to bind him over?

Mr. Harold Mosher: That is correct.

The purpose of the preliminary hearing does two things.

It puts the burden on the Government to prove to the examining magistrate, one that crime had been committed and two that there is probable cause, not proof beyond a reasonable doubt, but probable cause to believe that the accused committed the crime charged.

If there is, the bind over goes to the District Court where the trial is held on the merits.

Justice Potter Stewart: Where does he plead?

Mr. Harold Mosher: At the District Court level.

Justice Potter Stewart: Not until then?

Mr. Harold Mosher: That is correct.

Justice Potter Stewart: He does not do it in the arraignment?

He does not do it in the preliminary hearing?

Mr. Harold Mosher: No, absolutely not.

Justice Potter Stewart: And generally the defendant does not introduce any evidence at the preliminary hearing, does he?

Mr. Harold Mosher: Well, he may in a given case.

In a given case, the counsel may be very well appeal that the evidence produced by the Government is so weak that it could be exploited at that level.

The witnesses can be shown through testimony.

I have seen cases in which that is exactly where this case.

In which case even though one might argue that on its face the Government presented a prima facie case.

The fact remains that the trial judge who holds that a magistrate, if he will, has the credibility as the trier of the fact, it is upon him, to make the determination of what witnesses are to him are to be believed and whether or not to bind over should call.

Justice Lewis F. Powell: Preliminary hearing is normally open to the public?

Mr. Harold Mosher: Normally it is open to the public, yes Your Honor.

Justice Lewis F. Powell: The statute that was construed by the Supreme Court of Nebraska is the one that requires a public hearing, but only at the trial itself as the Court has construed it?

Mr. Harold Mosher: I do not understand your question, give it to me again.

Justice Lewis F. Powell: Does a Nebraska Statute had presently construed, required that the preliminary hearing be open to the public?

Mr. Harold Mosher: Certainly.

Justice Lewis F. Powell: It does?

Mr. Harold Mosher: The statute in and off itself says that you cannot close it except for certain reasons.

Now, the Supreme Court of Nebraska in its December 1 opinion in this case has said, and by implementing section 3.1, The American Bar Association Standards, that preliminary hearing can be closed under certain circumstances and those circumstances are the one which are enumerated in Section 3.1.

The next day, preliminary hearing was held on amended complaint that charged murder in the first degree and further charged that one or more the murderers was committed in the perpetration of one or more sexual assault.

After testimonies of several witnesses and the introduction of other evidence, Simants was with bound over to the District Court for trial.

The very next day, October 23rd, attorneys representing the media in (Inaudible) criminal case filed a motion requesting the right to be heard on a challenge to the constitutionality of this restrictive order.

The District Court granted the motion to intervene and four days later on October the 27th, the District Court terminated the County Court's Order and imposed one of its own.

Late in the afternoon of Friday, October the 31st, 1975, the petitioner sought relief in Supreme Court of Nebraska on two procedural routes.

They filed an appeal on the District Court's order and at the same time they filed a petition in the Supreme Court of Nebraska for a leave to file an original action on the nature of a writ of mandamus.

Obviously the Supreme Court of Nebraska could not have been expected to award to the parties to write briefs and drive over two hundred miles to Lincoln and to give oral argument on these two cases the same day on which they were docketed late Friday afternoon on October the 31st, 1975.

Nor did the Supreme Court of Nebraska be expected to hear the cases the following week and that had previously called more than 50 cases for oral argument that week.

It is hard to hear argument on that many cases as the Supreme Court of Nebraska divided itself in two divisions and it brought in several District Judges to help with the case load.

That is the statement on page 21 of the reply brief of the petitioners and I quote that “the Nebraska Supreme Court refused to act expeditiously in this case” is simply unfair and contrary to fact.

To compound the problem the Supreme Court of Nebraska learned while the two cases were pending in its Court, the petitioners have previously contacted Mr. Justice Blackmun of this Court, as Justice assigned to the Eight Circuit and asked him to stay the order entered by the District Court of Nebraska.

The Supreme Court of Nebraska immediately issued a memorandum opinion in which it noted that the petitioners were seeking concurrent relief in both this Court and the Supreme Court of Nebraska and caused for me to find and take action so long as the position of the exercising a parallel jurisdiction of the Supreme Court of the United States could not be determined.

They, however, continue the action until this Court may have known whether or not it would accept jurisdiction.

On November 13th, Mr. Justice Blackmun in his capacity, Circuit Judge issued a chamber’s opinion in which he noted the desire to re-frame punishment or denying a stay until the Nebraska Supreme Court had an opportunity to act.

The very next day, November 14th, the Supreme Court of Nebraska sent the original action for mandamus as well as the appeal on oral argument on November 25th.

It notified counsel to file typewritten briefs to expedite theory and thus I again submit to you that its safe that any statement attributed to the Supreme Court of Nebraska that it failed to act expeditiously in this matter simply is contrary to fact.

On November the 20th, Mr. Justice Blackmun --

Justice Harry A. Blackmun: Mr. Mosher, is not 11 days a pretty long time under the circumstances?

Mr. Harold Mosher: Not really Your Honor.

Justice Harry A. Blackmun: The excuse given as I remember was that they had some kind of seminar to attend?

Mr. Harold Mosher: I do not know, I am not privy to that information, so that I cannot answer.

I can tell you though that the Court in that period of time and when it was it first docketed which was a Friday on October 31st, the following week, through Monday and Tuesday of the second week heard 50 some cases, I believe as a matter of fact, it was 53 and that is a terrible case load for any Court to carry and deliberate.

Justice Thurgood Marshall: It does not help us in this case, does it?

Mr. Harold Mosher: It does not help you in this case at all.

All it really does though it set a background is to how this case came here and under what circumstances, because I do not want to leave you with the impression, nor do I want anyone else to leave you as impression, but somehow none of the Courts in Nebraska were derelict in this matter.

They simply were not.

Justice John Paul Stevens: Mr. Attorney General, do not we have to decide whether it was a routine case or an exceptional case, which is your position?

Mr. Harold Mosher: Well, I think this was an exceptional case.

Justice John Paul Stevens: Then should not the Supreme Court of Nebraska expedite it?

Mr. Harold Mosher: They did.

Justice John Paul Stevens: Then what is the relevance of these 27 or 30 other cases on the docket?

Mr. Harold Mosher: Well, Your Honor, when you call 50 cases for oral argument, there is just no way to stop it.

Justice John Paul Stevens: In other words it is fairly exceptional, but not extremely exceptional.

Mr. Harold Mosher: But there is now way to stop it.

Well, you have got 53 cases coming in for arguments the next day and these attorneys are coming in from all over of the state at minimum, that is 106 lawyers.[Laughter]

There is no way to stop it.

Each of these lawyers believes he too has exceptional case.

Justice John Paul Stevens: I would suggest maybe they just had to replace one case on the docket and heard this one first.

Mr. Harold Mosher: Perhaps that could have been done, but perhaps also Your Honor there was need for time to breach the matter.

Justice Thurgood Marshall: Let me put it in other way.

If there were 500 cases it would make any difference?

Mr. Harold Mosher: 500 cases?

It would make a tremendous difference.

Justice Thurgood Marshall: What the numbers had to do with the point we have got before us?

Mr. Harold Mosher: Only to the point as I have said Your Honor, is to try to impress upon you that the fact that the Supreme Court of Nebraska was not derelict, but let us turn to the first issue.

Justice John Paul Stevens: Let me just interrupt once more.

Are you not demonstrating that one of the vices in these orders is that inevitably they will remain in effect for some period of time until the judicial process can face up to the question on whether to remove them, but that is an inevitable part of the procedure, if you once enter the order?

Mr. Harold Mosher: Well, there is always a certain time line Your Honor.

There has to be.

That is just part of the system, but to say that 10-11 days in unreasonable I do not consider to be.

Someone else can very well argue that it is unreasonable.

I just know what the Court was up against.

I just know that they heard arguments for nine days and before then, they say again that they took 11 days before this was set down and at the same time giving the attorneys the appropriate time to reach the matter, I do not consider to be unreasonable.

Your Honor, there are though of several issues and I would like to address myself to them.

First, is the first very basic issue and that is whether or not the Courts had a power and under in what circumstances to enter a valid protective order.

The answer seems to me unequivocal.

The Courts do have the power.

A few basic consideration seems to me make this conclusion absolutely necessary.

One, fair administration of justice is one of the most essential functions of Government.

Every other with other right including the right of a free Press may well depend upon ability to get a judicial hearing that is dispassionate and as an impartial as a weakness inherent men will permit.

Two, the media has the power, whether lawful or not, to destroy the right to a fair trail.

Not only does it have this power, but it has been exercised as demonstrated in the case of Sheppard v. Maxwell.

Three, no Government can long endure if it can permit private persons or persons to prevent the discharge of one of its essential functions.

The Press has taken a position that the Courts have no power, save national security, to issue restrictive orders.

That position I submit to you finds no support whatever in the constitution in the United States nor does it find any support in the teachings of this Court.

Two dangerous impressions moreover are alleged in the position that the petitioners have taken in this case.

One, is it that the press is above the law, and the other is that the people in the Government are antagonistic, that the press must somehow protect the people from the Government.

I submit to you that these impressions are based upon some misconceptions.

A fundamental principle of American law and from Anglo-American law for at least 700 years is that no one is above the law and certainly, neither the constitution nor the people are conferred upon private corporations, whether engaged in a publishing or the broadcasting business or any other business, a status that not even of the President of the United States can claim.

All are under the law and none has the right in its sole discretion to prevent the judicial branch or any other branch of the Government in carrying out its assigned functions.

Secondly, America’s greatest claim to freedom, to its place and history is its Government other people, by the people and for the people.

Is that the Government who is at the control of the people, the people want and they need the news media to assist them in this process, but only under the law and not above it.

Freedom of the Press simply is not absolute and absolute discretion is granted to no one under the constitution.

Ours is the Government of laws.

It is not a Government of men.

Thus it cannot seriously be doubted that the Courts have the power to render valid protective orders.

That critical issue is under what circumstances can a restrictive order be entered and what should be its scope.

The issue here is delicate.

It is a delicate balancing of interest between the First and Sixth Amendment.

This is where the Courts and media must give careful consideration to the important functions that media performs.

Perhaps a good place to start is the preliminary hearing.

This is a likely source of most Restrictive Orders.

As I have previously alluded to you under Nebraska Law, one who believes he had been unjustly charged with a criminal offense has a right for a prompt preliminary hearing before a magistrate.

In that particular hearing, the Government does have the burden proving one, whether or not a crime has been committed and two whether or not a person charged committed the crime.

The dissemination of public information at that stage of the trial can in appropriate case create habit in providing a defendant with a fair trial because frequently at such hearings there is testimony relating to confessions, and I call your attention to several empirical studies, empirical studies which are cited on pages 10 and 11 of the brief for the respondent Stuart, which demonstrate how, the publication of a confession or the fact that one has been given can in a particular case deny that criminal defendant a fair trial.

In the case of Estes versus Texas this Court itself had that the pretrial can create a major problem for the defendant in criminal case. Indeed, the Court went on to state a pretrial publicity may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence.

Justice William H. Rehnquist: Mr. Mosher, a minute ago you said that frequently a pretrial hearing, there would be an offer of a confession?

Mr. Harold Mosher: That is correct.

Justice William H. Rehnquist: Is that typical in Nebraska felony pretrial that more often than not if there has been a confession the state will seek to offer?

Mr. Harold Mosher: I do not know if I can give you a yes or no answer Your Honor.

It will depend on an awful lot on the facts in a particular case.

In this particular case that you have before you, no eyewitnesses survived and so the case, the Government was going to make much of the case, certainly a confession was certainly a way of doing it.

There were simply no eyewitnesses to this heinous crime.

Justice William H. Rehnquist: And was a confession in fact offered at the pretrial?

Mr. Harold Mosher: It was, pardon me, it was.

The culprits of possible prejudice in the case at bar, the Supreme Court of Nebraska restricted the petitions for publishing confessions and admissions.

The Supreme Court of Nebraska did not restrict the petitioners from publishing that six persons had been culled, or that six persons that had been slain in their homes.

It did not restrict the news media from investigating any portion of the crime.

It did not restrict the newspaper and the news media from publishing the names of the victims, their age, or their sex, or that Erwin Charles Simants has been arrested.

Justice Thurgood Marshall: What was the purpose of the newspapers investigating that they cannot publish?

Mr. Harold Mosher: All they could -- probably they publish immediately, of course Your Honor, under the terms of this particular restricting order just as soon the jury was impaneled.

Justice Thurgood Marshall: So they would investigate and wait around until that time?

Mr. Harold Mosher: Certainly.

Justice Thurgood Marshall: What is the difference between everybody else going out and talking about what happened in the preliminary hearing except the Press?

Mr. Harold Mosher: I think it is probably one of the gray.

I think it is one of the gray.

The newspapers in this nation really do enjoy the tremendous sense of credibility.

Justice Thurgood Marshall: But then it was a public hearing, was it?

Mr. Harold Mosher: What is that?

What was in the public hearing?

Justice Thurgood Marshall: The preliminary hearing.

It could not be public if it could not be published?

Mr. Harold Mosher: But there is no requirement under the Constitution that a preliminary hearing be a public hearing.

The Sixth Amendment only goes to a public trial.

Justice Thurgood Marshall: I thought you said it was the law of Nebraska?

Mr. Harold Mosher: The Law of Nebraska (Voice Overlap)

Justice Thurgood Marshall: Well, at any rate it was a public hearing here, was it or not?

That is public except for the Press.

Mr. Harold Mosher: Well, even the Press that the way case was developed was entitled to attend.

Unknown Speaker: (Inaudible)

Mr. Harold Mosher: Certainly, that is correct.

Unknown Speaker: (Inaudible)

Mr. Harold Mosher: But Your Honor, it was not a total restriction.

It was a merely restriction until the jury was impaneled and placed in a box.

At that stage of the game the Press was freed and let it all hang out.

There was nothing to restrict to matter, the jury was in the box.

It was simply an attempt, a very sincere attempt of balance the First Amendment and the Sixth Amendment.

Justice John Paul Stevens: Mr. Mosher, your theory of why this is a narrow order then goes to the fact that it was limited period of time rather than the scope of the prohibition?

Mr. Harold Mosher: That is one and the other thing I think why it was very narrow is they restricted the publication on.

Justice John Paul Stevens: What about that third clause that I asked you about before, are they broad?

Mr. Harold Mosher: I do not believe so at all.

I think all the Court was really saying is here is that one, you cannot publish before this, before this matter goes to the -- before the jury is impaneled.

One, any admissions against interest or confessions, and two you cannot publish the fact that the man had had a prayer of general conduct.

This is all the --

Justice John Paul Stevens: Are there any information tending to prove guilt?

Is that not that part of the order and is not that the thing the newspaper people would probably most like to publish if they had their own reporters out digging around for facts?

Mr. Harold Mosher: I do not think so Your Honor, because the second one for example, let the media publish anything that is --

Justice John Paul Stevens: This order would have been appropriate in the Watergate, the background?

Would it have been a narrow order?

Mr. Harold Mosher: I do not know the scope of your question because Watergate involved a lot --

Justice John Paul Stevens: In tending to prove guilt of any other crimes under the statute?

Mr. Harold Mosher: Well, of course, Watergate involved a tremendous amount of investigation by the media before Government acted, but probably Watergate is the media’s finest hour.

Certainly it is one of its finest hours, because here are some investigations that went on by the media before the Government acted to set the criminal process in action.

This was not the case here.

The Government had set an action.

The Government had arrested a person that they believe --

Justice John Paul Stevens: Really, I am just directing my attention -- directing your attention to the scope of the order, the prohibition of information tending to prove guilt.

Do you think that is a narrow order?

Mr. Harold Mosher: That is a narrow order.

Justice William H. Rehnquist: Are the terms of the ordered tending to prove guilt of the accused or just tending to prove guilt?

Mr. Harold Mosher: The terms of the order prohibit the media in publishing before the jury is impaneled, from publishing a fact that this man had confessed.

It also prohibited the media from publishing such other matters except in those statements that they might get from the accused.

Now, if the accused was willing to talk to the media they were perfectly free to publish it.

Justice William H. Rehnquist: What if an investigative reporter, after this order was entered, but before Simants trial came upon some leads that led him to think that X rather than Simants was guilty, would he have been free to publish that?

Mr. Harold Mosher: Oh! I think he probably could, certainly.

Justice Harry A. Blackmun: Did not the order contained word such as ‘Seriously Implicative’?

Mr. Harold Mosher: It did, which of course, would go to the prior criminal conduct of the accused.

Justice Harry A. Blackmun: That to me sounds a little more narrower than Mr. Justice Stevens’ description of tending to prove guilt?

Mr. Harold Mosher: I think so.

Justice John Paul Stevens: Yes, and it is also limited to the accused that Mr. Justice Rehnquist pointed to.

Information strongly implicative of the accused that the perpetrator of the slain so (a) it has to be strong, and (b) it has to relate to the particular accused and that is what narrow is about.

Chief Justice Warren E. Burger: Mr. Larson.

Argument of Milton R. Larson

Mr. Milton R. Larson: Mr. Chief Justice, Your Honors and may it please the Court.

My name is Milton Larson.

I am the prosecutor in this action and I am here representing the State of Nebraska.

I believe that, insofar as the factual background, Mr. Mosher has done a very good job in laying forth the situation.

The one thing that he did not mention in terms of whether the state may have overreacted to some publicity.

I was called to Sutherland on the evening of October 18th, assisted in the criminal investigation.

The bodies were in the house from approximately 10 o’clock when I got there until 4:30 the next morning.

Everything left just as it was for the purpose of getting the criminal investigation underway and completed and before the bodies were removed, there was an NBC helicopter from Denver that had arrived.

There were news, media representatives from the Wire Services, AP, UPI, Omaha World-Herald, all of the local radio stations, television.

It was very apparent, very early that I was going to be faced with a good deal of publicity.

In this regard, I would like to narrow the issues here a little bit.

I think that we need to say that we are talking here only about the very exceptional case in the criminal arena, unfortunately the sensational case, the highly publicized case.

However, we are also talking therefore about the major cases.

The ones that the public presumably the going to be the most interested in.

Certainly this case, involving the mass murder of six people, involving sexual assaults on children and an elderly woman both before and after death must fall within the realm of an exceptional case.

You have to couple that, unlike the Watergate situations that happened in a metropolitan area where everyone is not terribly concerned about it.

Here we have a situation in a town of 800 where virtually everyone knows everyone.

The people in the community knew both the accused and all of the victims.

They were very vitally interested in it.

They were going to learn all that they could and rightfully so.

They would want to learn all that they could, but that adds to the prosecutions’ burden of protecting the individual’s right to a fair trial.

I do not mean to sound as a defense attorney, but as an officer of the Court, I felt that it was the burden of the prosecution as well and I think that is clearly indicated in Sheppard to take reasonable steps as I felt were necessary to protect the individual’s right to a fair trial.

I do also wish to reemphasize the fact that I did not, at any time state that the defendant had made a statement and I am very happy to report that because it would have been highly embarrassing had I done that.

I was misquoted on that.

Then with regard to the pervasiveness of the County Court's Order, he simply said, you shall not report what happened at the preliminary hearing, except as in compliance to the Bar Press Guidelines.

You have to take that into account in terms of the circumstances there.

Nebraska has a statute requiring that if a man is held without bond that he shall be entitled to a preliminary hearing within four days.

That is not very much time.

By the time we got even organized, I have a four-man staff, by the time I even got organized to consider the procedural problems of Due Process and fair trial and the Sixth Amendment, it was Monday.

I had to have the preliminary hearing Tuesday, and so I asked, I simply put a motion on and said, Your Honor, I just request that the order -- that the Court enter whatever order it deems necessary to protect this individual’s right to a fair trial.

And the judge looked at it and he said, my gosh, I see the problem.

In the meantime, I have received calls from the Chicago Tribune, LA Sun-Times, The London Sunday-Times, NBC, ABC, everyone and I was very much appalled that what was going to transpire.

So the judge said, obviously, this needs to be considered.

Obviously, I have not much time, call of the media that are here and that are represented, asked them to come to the Court this evening and we are going to talk this over and he came in, he ultimately decided that he was not going to be able to make any extensive study of the law in the area and he said, you are going to be able to get a review from the District Court and I am just going to shut it down and you can get your review there.

The following morning, we had our preliminary hearing.

The following evening, we had a hearing as to the -- we had a review of the County Court's Order and the District Judge also said, this order is over broad, but I do not know how over broad it is because I am not right up-to-date on everything with regard to free-Press and fair trial.

So I want to postpone this matter until October 27th, that was four days, request that counsel give me some guidelines, give me their thoughts as to what ought to go into the order and if they ought not to be in order, what those -- the basis for that is and on October 27th, he modified the order which was five days after the original order had been entered and I think under the circumstances he got it on Wednesday, gave Thursday and Friday for the people to get -- the people involved to get their information together as to what they want to put before the judge.

Then on October 27th, at which he entered his order and the heard arguments as to its validity and what ought to be in it, and what ought not to be in it and decided to go with the Bar-Press Guidelines.

And Justice Blackmun, I think correctly stated, that they are over broad because they are not specific enough in all areas.

If you are going to be charged with contempt you certainly ought to know what you are being charged with and I could not agree more.

I think that is absolutely correct.

So, it was limited to confessions, confessions made to law enforcement people, confessions made to others, and to those facts strongly implicative of this defendant.

Now, Justice Stevens question is that would on its face appear to be rather pervasive, but I would submit that it is not when applied to the facts to the case itself.

Basically, at the time of the preliminary hearing all we have was the confession of the defendant.

All of the physical evidence that was to later corroborate the confession, the fibers that were found from his coat, that were found on the bodies of the defendants and etcetera, this was all being packaged and being sent to the FBI Laboratory in Washington D.C.

We had nothing at the time of the preliminary hearing to secure a probable cause for the bind over of this defendant, except, nothing exculpatory except his confession which is sufficient for establishing probable cause, to bind him over.

But with regard to the questions that are involved here, I think what comes into conflict are the two rules of law.

One that that which transpires in the open courtroom is maybe published with impunity and two, that where there is a reasonable likelihood of prejudicial news coverage that the judge shall take those steps as are required to protect the right to a fair trial.

Clearly, none of the cases have indicated that there is any indication toward prior restraint that that it is all desirable.

That I submit in exceptional cases where locale and circumstance combine such that pervasive publicity, extensive publicity and prejudicial publicity would or create a clear and present danger to the impaneling of a fair and impartial jury that that must necessarily that the judge must necessarily have the authority to enter any appropriate order.

Justice Thurgood Marshall: Does that not cut in other way in the place of 800 people, would they talk, would 800 people talk about anything else but the --

Mr. Milton R. Larson: No Your Honor, I presume what is your getting to now is the rumor in innuendo that goes in the absence of a court, and is that correct?

Justice Thurgood Marshall: You cannot stop that?

Mr. Milton R. Larson: No, and my answer to that and it is only a feeling, but I think it is correct that that which Mrs. Jones tells me, I am going to be more easily convinced to put aside than if I have read in the papers in the headlines, evidence established at preliminary hearing shows that a confession was made.

I think that once it has given the sanction of the judicial proceeding when it has given the sanction of the written word in the paper recorded under judicial proceedings that it is much more devastating to the rights of criminal defendant to a fair trial.

Justice Thurgood Marshall: In the small town of 800?

Mr. Milton R. Larson: Yes, Your Honor.

First of all, with regard to that as a practical matter, anyone who was from Sutherland was removed for cause without opposition by the prosecution because of that very reason.

Justice Thurgood Marshall: (Inaudible)

Mr. Milton R. Larson: Yes, Your Honor.

Justice Thurgood Marshall: (Inaudible)

Mr. Milton R. Larson: You cannot stop it Your Honor, but I do think that it is not going to be as prejudicial as what comes out in the paper that judicial proceedings have indicated that a confession was made.

In regard to the confession itself, I would submit to the Court that a confession, in an exceptional case, such as we have before us uniquely lends itself to a restriction in the pretrial proceeding.

I think it is also important to remember that we are talking about pretrial here.

I cannot conceive of any basis during the trial of precluding publicity because obviously the jury can be sequestered at that time, they do not need to have access to that information.

But we are talking about pretrial and we do not know who the perspective jurors are going to be and we do know though what type of information they are going to have at their disposal.

I would submit, Your Honors that in light of the four-day requirement, in light of the fact of necessity had to introduce the confession at the preliminary hearing in order to get a bind over, that it can be hardly said as petitioners would have believe that we volunteered that information for dissemination to the public.

As a matter of prosecution, as a matter of getting my job done, there was no -- I had no alternative, but to introduce confession.

So, when you --

Justice John Paul Stevens: Before a confession is introduced in a preliminary hearing, is there any test of its voluntariness?

Mr. Milton R. Larson: No, Your Honor, that was the next point that I was going to make, Due Process before the admission of a confession, into the trial portion, requires a due process hearing outside the presence of the jury with relationship to voluntariness, that was held.

But I would submit to you that that would be a very little moment if the confession had already been published and the jurors already have knowledge of it, because I would submit that what would go up to the mind of the juror, if they went to the trial and no confession was introduced, was not that there must not have been a confession, but rather that, well, that prosecutor did not introduce said confession, but I know it was made and I think that type of prejudice simply cannot be over come.

And I think that the issue, the basic issue here is that in the exceptional case who shall govern, who shall have ultimate authority to protect the due process requirements with relationship to a fair trial. Shall it be, the Courts, shall it be the judiciary or shall it be the editor?

I would submit that before public dissemination of information relative to the existence of a confession can be or should be disseminated that the question of voluntariness should first be determined, in the first instance by the judiciary, not by editorial comment.

And that again, I am talking about exceptional cases, highly publicized issues, I am talking about this case gentleman, where in a small rural community we had a mass murder of a scope that was unprecedented in Nebraska since the Starkweather case in 1957.

It would seem to me that if ever there was a situation where there could be a limited prior restraint, and again we must say limited, I feel that as I think it clearly the law, it can be no more pervasive and it is absolutely necessary to insure the judicial process and the orderly administration of justice and that is really what we are talking about.

Is the ultimate power of the Courts to control their own processes to insure that due process of the law is met.

I think that we should talk about the Estes case, the Rideau case, the Sheppard case which indicate that due process, that actual prejudice need not be shown where a due process demands a reversal because of prejudicial publicity.

Chief Justice Warren E. Burger: Thank you Mr. Larson.

Mr. Prettyman, you have I think, eight minutes left.

Rebuttal of E. Barrett Prettyman, Jr.

Mr. E. Barrett Prettyman, Jr.: I do not think that I will take it all, Your Honor.

I just want to say that I would be making my argument even if prior restraints worked.

They do not work at least in the sense of guaranteeing a fair trial or benefiting the public.

They result, as you have just pointed out Mr. Justice Marshall in rumor and gossip and speculation that is often far more dangerous to a defendant than factual reporting in a newspaper.

They result in the cover-up of occasional corruption and abuse of power and the pressures that elected judges sometimes are put under --

Chief Justice Warren E. Burger: (Inaudible) If the Press are permitted to be present and have access to the entire record, they have a rather hard time covering it up.

It could be delayed reporting, but could not cover it up?

Mr. E. Barrett Prettyman, Jr.: Well, the problem of course is that is what is actually going on and that is that you are having a combination of closed hearings and prior restraints and what we are having more and more now and what is developing at an accelerating rate as the fact that the Press is being cutoff entirely.

Now, you sort of assume that the publication of a confession must be a bad thing, it is going to harm the defendant.

In fact, people confess the things all the time that they did not do and the publication of confessions can result in freeing the people.

There was an incident the other day in Britain where a young man was charged with a crime and he got on television and said, I did not do it and the youngster who had been at the scene saw it and said that man was not there and he told his father they got the police the follow that off.

Now, the same thing would have happened if he had actually confessed on television.

If he said, I did do it, and that young boy said, I was there, he did not do it all, that could have gotten that man off.

You cannot just assume that the publication --

Justice Potter Stewart: (Inaudible) our decision in The Rideau case was erroneous?

Mr. E. Barrett Prettyman, Jr.: No.[Laughter]

I would point out that Your Honor that in that case you are talking about the effect at trial and that you reversed, you did not enter a prior restraint and I think Rideau is a very good example because you did not order that man to go free.

You sent him back for a new trial and you assumed that despite those 50,000 people or however many it was who saw that television program, that somehow with the Sheppard help, you have got a man who was going to get a fair trial the next time around.

Justice Potter Stewart: Now, the issue there was whether or not he was unconstitutionally entitled to a change of venue --

Mr. E. Barrett Prettyman, Jr.: That is true.

Justice Harry A. Blackmun: Mr. Prettyman, I suppose your position, if you prevail here will be to increase the number of closed hearings.

Now, you said a while ago that that is another case, it would argument against this --

Mr. E. Barrett Prettyman, Jr.: Yes sir.

Justice Harry A. Blackmun: -- but is this a privilege for the Press to assert or for the defense to assert?

Mr. E. Barrett Prettyman, Jr.: Well, of course, we would contend and the Nebraska Supreme Court does not agree with us that the Press is entitled to intervene here, that it represents not only its own rights, but the public's right.

One very strange aspect to this case is that the Nebraska Supreme Court said, we never should have been allowed to intervene in the first place, and that therefore, we could have disobeyed the County Court order with impunity even though it was entered against us.

Now, you got a strange situation.

Do we have rights or do we not?

Is the public going to be represented or is it not?

I think what is going to happen, if you allow these things is this.

Defendants as a matter of course are going to ask for a prior restraint, both to prevent themselves from being charged of in effective assistance to the counsel and also because it is obviously in their client's interest not to have any publicity about this.

So that is going to become the normal thing.

That prosecutors, what is their attitude going to be, sure, give it to them.

Let us do not take a chance on reversal later, disagree to it and suddenly you are sitting there with a judge, with both of parties agreeing on something, pushing it toward it, you do not have the Press present in Nebraska, because they do not have a right to intervene, and so the judge naturally who also does not want to be reversed is going to grant it.

I assure you no matter how narrow an order you attempt to fashion, you are going to see a flood of litigation if this happens --

Justice William H. Rehnquist: Your grand jury is certainly closed --

Mr. E. Barrett Prettyman, Jr.: I am sorry I did not hear you.

Justice William H. Rehnquist: In the federal system, your grand jury is certainly closed.

You are not suggesting that the Press can open up the grand jury?

Mr. E. Barrett Prettyman, Jr.: No, absolutely not.

We are not talking here about our right to get information.

We are not saying that courts cannot keep some unknown information secret or that everything has to be made public.

We are not talking about an access --

Justice William H. Rehnquist: But I thought you were saying that the State of Nebraska is constitutionally obligated to open up its preliminary hearing?

Mr. E. Barrett Prettyman, Jr.: No, I was not arguing at that now.

I said I might argue in the next case that it was, but that is not this case.

In this case they chose to have a public hearing and they nevertheless refused to give us the information that was at the Public Hearing.

I think that he mentioned a few moments ago that well, it is just for a short duration it is just between the preliminary hearing and trial, it was two-and-a-half months.

You prevented this information and that for two-and-a-half months from coming out and I just do not think that no matter what kind of an order you try to fashion, you are going to see the beginning of something that is not only a great departure from our constitutional system as we have known it, but you are going to see a flood of litigation that is going to result in more and more orders and I simply implore the Court not to start down that path.

Chief Justice Warren E. Burger: Mr. Prettyman, your argument on the matter why is it essential that it be published tomorrow morning as distinguished from a later point?

Mr. E. Barrett Prettyman, Jr.: Yes, Your Honor --

Chief Justice Warren E. Burger: Assuming that there is no barrier whatever to the subsequent publication?

Mr. E. Barrett Prettyman, Jr.: Yes.

Your Honor, I think that if the Court is really going to attempt to decide in each case whether a little bit of time is too much or too little, you are really in the trouble.

Let us say for example that on the morning of an election, a Congressman is indicted and confesses and an unconstitutional order, constitutional or not is entered immediately against the Press, but it stays into effect only until 7 o’clock that night.

That man is re-elected, is seven hours too little or too late?

Are you going to put the courts into the position of saying, well, in that case, that seven hours was too long, but in some other case, maybe a week is alright or a month is alright.

Unknown Speaker: (Inaudible)

Mr. E. Barrett Prettyman, Jr.: Well, I can only say this, that this Court has said on several occasions that it is the contemporaneous, In re Oliver was one, and I think that there have been several others, have emphasized that it is the contemporaneous publishing of news.

The public's right immediately to news, because you cannot judge the impact that news is going to have.

In the Joan Little case for example, the fact that the women’s rights were immediately able, right immediately able to generalize, get support for her, was extremely important and in the Schulingkamp case, the immediate putting out of the news resulted in the whole juvenile system being redone and all of that could have been lost if there had been a delay.

There was a momentum to these things.

There was a momentum to news and I think Watergate of course is the great example.

The fact that news coming out now of something is a vital importance to this public and as soon as you start saying, no, let us just keep it under cover for a little while you put yourself in a very serious trouble.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.