ABFFE Book of the Month: Rights in the Balance by Mark Scherer

The ABFFE Book of the Month for October is Rights in the Balance: Free Press, Fair Trial, and Nebraska Press Association v. Stuart by Mark R. Scherer (Texas Tech University Press), 9780896726260. 

On a horrific night in October 1975, Erwin Simants brutally murdered six members of the Henry Kellie family in tiny Sutherland, Nebraska. Massive media attention to the grisly story soon spawned a historic collision between two of the most cherished American constitutional protections—the First Amendment’s guarantee of a free press and the Sixth Amendment’s guarantee of a criminal defendant’s right to a fair trial before an impartial jury.

Rights in the Balance is the story of the complex legal battles set in motion that tragic night on the western Nebraska plains. In juxtaposition to the criminal prosecution of Erwin Simants, Mark Scherer traces the Nebraska Press Association’s battle to overturn a gag order imposed on the media by state court judges. Prohibited from publishing certain details about the crimes and the Simants prosecution, the association set its own arduous legal course that would lead ultimately to the U.S. Supreme Court and the landmark ruling issued in Nebraska Press Association v. Stuart. The decision, one of the most closely followed in American constitutional history, remains one of the high court’s most significant statements and controlling precedents on the troublesome and recurring conflict between the rights of free press and fair trial.

Balancing the nuances of myriad legal considerations against the very human dimensions of both the constitutional litigations and the Simants prosecution, Scherer offers up a narrative accessible not only to communications and legal specialists and scholars but also the interested general public.

Interview with Mark Scherer:

ABFFE: Why was the trial court so worried about pretrial publicity?

Mark Scherer: The trial court judges handling Simants's murder trial and the related pretrial proceedings were particularly concerned about pretrial publicity because of the uniquely depraved--even macabre--nature of the crimes (six persons brutally killed in cold blood, along with sexual assaults and necrophilia), coupled with the fact that the murders occurred in a rural, sparsely populated, and relatively isolated area.  They felt that, unless press coverage of the case was controlled, incriminating details about Simants's involvement in the crimes would spread rapidly and completely throughout the close-knit local community, making it impossible to seat an impartial jury for his trial.  


ABFFE: Had pretrial publicity ever jeopardized a defendant’s rights before?

Mark Scherer: In the years leading up to the Nebraska case, there had been several high-profile trials involving intensive media coverage that had resulted in a generalized increase in judicial attention to criminal defendants' 6th Amendment rights.  The Nebraska judges were particularly intent on avoiding a situation like the one that had occurred in Cleveland, Ohio a few years earlier surrounding the trial of Dr. Sam Sheppard for the murder of his wife.   The media had covered that case with feverish intensity, creating an environment that the Supreme Court would later describe as a "Roman holiday."  Strongly criticizing the trial court judge for failing to control the media in and around his courtroom, the Supreme Court overturned Sheppard's conviction in 1966, in part because of the "excessive" media coverage.  In the Nebraska case several years later, the judge who issued the initial gag order against the press freely acknowledged that he was motivated, at least in part, by the desire to "avoid a Sheppard-like result."


ABFFE: How did the Nebraska court attempt to gag the press?

Mark Scherer: The original gag order was amended several times by various judges as the litigation proceeded through the appellate courts, and each version of the order differed slightly in its particulars.  Generally, though, the orders sought to prohibit the press from publishing information related to the confessions that Simants had made to the police and to members of his family and information related to his sexual assaults on some of the victims both before and after their deaths.  Finally (and most problematically) the gag orders attempted to prohibit the press from publishing any "other information strongly implicative of the accused as the perpetrator of the slayings."  Given its vagueness, it was this language that the Supreme Court found to be most constitutionally suspect.

 
ABFFE: Why was there a struggle in the Supreme Court over who would write the majority opinion?      

Mark Scherer: The conflict among the Supreme Court justices did not actually involve the issue of who would write the majority opinion -- the decision to overturn the Nebraska gag order was unanimous and thus Chief Justice Burger could have appointed any of the justices to write the opinion.  There was disagreement, however, over what the justices' intent had been with respect to the theoretical rationale for, and the breadth of, the opinion.  Justices Brennan and Marshall, among others, believed that the Court had voted in conference to ban all gag orders in all circumstances -- that is, they wanted to issue a "blanket" prohibition on any and all judicial attempts to impose prior restraints on the press as the Nebraska courts had done.  Chief Justice Burger, however, believed that the majority of the Court had not decided to issue a sweeping prohibition on all prior restraints, and he wrote in his opinion for the Court that gag orders against the press were not per se unconstitutional, but rather bore only a "strong presumption" of unconstitutionality.  Justice Brennan therefore wrote a concurring opinion, joined by Justices Marshall and Stewart, setting out his belief that no prior restraint of the press by way of a gag order could ever be upheld, under any circumstances.
 

ABFFE: What was the impact of the decision?

Mark Scherer: The impact of the Nebraska Press Association decision has been to almost completely eliminate all further efforts by trial court judges to issue direct "gag orders" against the press in the context of pretrial publicity.   While courts do sometimes attempt to stifle pretrial publicity by "indirect" gags -- that is, by prohibiting participants in litigation (attorneys, witnesses, etc) from talking to the press, to my knowledge there have been no further attempts to judicially enforce the kind of direct prior restraint on the press that was involved in the Nebraska case.  In that sense, then, the decision has become one of the most important judicial pronouncements in our history on the rights of a free press under the 1st Amendment.

 

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