Action by MR. JUSTICE BLACKMUN, as Circuit Justice, on
application by Nebraska news media for stay of a state court order
restricting news coverage of alleged murders and criminal
proceedings in prosecution thereof deferred pending prompt decision
on the application by the Nebraska Supreme Court, which had
"continued" the matter until it was known whether MR. JUSTICE
BLACKMUN would act.
MR. JUSTICE BLACKMUN, Circuit Justice.
This is an application for stay of an order of the District
Court of Lincoln County, Neb., that restricts coverage by the media
of details concerning alleged sexual assaults upon and murders of
six members of a family in their home in Sutherland, Neb.;
concerning the investigation and development of the case against
the accused; and concerning the forthcoming trial of the accused.
The applicants are Nebraska newspaper publishers, national newswire
services, media associations, a radio station, and employees of
these entities.
The accused is the subject of a complaint filed in the County
Court of Lincoln County, Neb., on October 19, 1975. The complaint
was amended on October 22 and, as so amended, charged the accused
with having perpetrated the assaults and murders on October 18. On
October 21, the prosecution filed with the County Court a motion
for a restrictive order. This motion alleged
"a reasonable lik[e]lihood of prejudicial news which would make
difficult, if not impossible, the impaneling of an impartial jury
and tend to prevent a fair trial should the defendant be bound over
to trial in the District Court if testimony of witnesses at the
preliminary hearing is
Page 423 U. S. 1320
reported to the public."
The defense joined in the prosecution's request, and also moved
that the preliminary hearing be closed to the public and the
press.
Refusing the latter request, the County Court held an open
preliminary hearing on October 22. On that day, it bound the
accused over to the District Court. It, however, did issue a
protective order. The court found that there was "a reasonable
likelihood of prejudicial news which would make difficult, if not
impossible, the impaneling of an impartial jury." The court then
ordered that no party to the action, no attorney connected with the
defense or prosecution, no judicial officer or employee, and no
witness or "any other person present in Court" was to
"release or authorize the release for public dissemination in
any form or manner whatsoever any testimony given or evidence
adduced during the preliminary hearing."
It went on to order that no
"news media disseminate any information concerning this matter
apart from the preliminary hearing other than as set forth in the
Nebraska Bar-Press Guidelines for Disclosure and Reporting of
Information Relating to Imminent or Pending Criminal
Litigation."
Excepted, however, were (1) factual statements of the accused's
name, age, residence, occupation, and family status; (2) the
circumstances of the arrest (time and place, identity of the
arresting and investigating officers and agencies, and the length
of the investigation); (3) the nature, substance and text of the
charge; (4) quotations from, or any reference without comment to,
public records or communications theretofore disseminated to the
public; (5) the scheduling and result of any stage of the judicial
proceeding held in open court; (6) a request for assistance in
obtaining evidence; and (7) a request for assistance in obtaining
the names of possible witnesses. The court also ordered that a copy
of the preliminary
Page 423 U. S. 1321
hearing proceedings was to be made available to the public at
the expiration of the order.
A copy of the Bar-Press Guidelines was attached to the court's
order and was incorporated in it by reference. In their preamble,
the Guidelines are described as a "voluntary code." They speak of
what is "generally" appropriate or inappropriate for the press to
disclose or report. The identity of the defendant, and also the
victim, may be reported, along with biographical information about
them. The circumstances of the arrest may be disclosed, as may the
evidence against the defendant, "if, in view of the time and other
circumstances, such disclosure and reporting are not likely to
interfere with a fair trial." Confessions or other statements of
the accused may not be disclosed, unless they have been made "to
representatives of the news media or to the public." Also barred
from disclosure are opinions as to the guilt of the accused,
predictions of the outcome of trial, results of examinations and
tests, statements concerning the anticipated testimony of
witnesses, and statements made in court but out of the presence of
the jury "which, if reported, would likely interfere with a fair
trial." The media are instructed by the Guidelines that the
reporting of an accused's prior criminal record "should be
considered very carefully" and "should generally be avoided."
Photographs are permissible provided they do not "deliberately pose
a person in custody."
The applicants forthwith applied to the District Court of
Lincoln County for vacation of the County Court's order. The
defense, in turn, moved for continuation of the order and that all
future proceedings in the case be closed. The respondent, as judge
of the District Court, granted a motion by the applicants to
intervene in the case. On October 27, he terminated the County
Court's order and substituted his own. By its order of that
Page 423 U. S. 1322
date, the District Court found that "there is a clear and
present danger that pretrial publicity could impinge upon the
defendant's right to a fair trial." It ordered that the pretrial
publicity in the case be in accord with the above-mentioned
Guidelines as "clarified by the court." The clarification
provisions were to the effect that the trial of the case commences
when a jury is impaneled, and that all reporting prior to that
event would be pretrial publicity; that it appeared that the
defendant had made a statement or confession, "and it is
inappropriate to report the existence of such statement or the
contents of it"; that it appeared that the defendant may have made
statements against interest to three named persons and may have
left a note; that
"the nature of such statements, or the fact that such statements
were made, or the nature of the testimony of these witnesses with
reference to such statements in the preliminary hearing will not be
reported;"
that the testimony of the pathologist witness
"dealing with technical subjects, tests or investigations
performed or the results thereof, or his opinions or conclusions as
a result of such tests or investigations will not be reported;"
that "the identity of the person or persons allegedly sexually
assaulted or the details of any alleged assault by the defendant
will not be reported"; that the "exact nature of the limitations of
publicity as entered by this order will not be reported," that is
to say,
"the fact of the entering of this order limiting pretrial
publicity and the adoption of the Bar-Press Guidelines may be
reported, but specific reference to confessions, statements against
interest, witnesses or type of evidence to which this order will
apply will not be reported."
The applicants then sought from the District Court a stay of its
order. Not receiving relief there, they applied to the Supreme
Court of Nebraska for an immediate
Page 423 U. S. 1323
stay and also for leave to commence an original action in the
nature of mandamus and/or prohibition to vacate the District Court
order of October 27. On November 4, counsel for the applicants was
advised by the Clerk of the Supreme Court that, under that court's
rules, "all motions must be noticed for a day certain when the
court is regularly in session," and that the "next date for
submission of such a matter will be Monday, December 1, 1975, and I
suggest that your motion be noticed for that date."
On November 5, the applicants, reciting that the "District Court
and the Nebraska Supreme Court have declined to act on the
requested relief," filed with this Court, directed to me as Circuit
Justice, the present application for stay of the order of the
District Court in and for Lincoln County, Neb. Because of the
obvious importance of the issue and the need for immediate action,
and because of the apparent similarity of the facts to those that
confronted MR. JUSTICE POWELL as Circuit Justice, in the case of
Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.
S. 1301 (1974), I asked for prompt responses. That
request has been honored, and responses respectively were received
on November 10 and 11 from the Attorney General of Nebraska on
behalf of the respondent judge, from the Lincoln County attorney on
behalf of the State, and from counsel for the accused.
I was advised yesterday, however, that, on November 10, the
Supreme Court of Nebraska issued a per curiam statement reciting
that the applicants have petitioned that court for leave to file
their petition for a writ of mandamus or other appropriate relief
with respect to the District Court order of October 27, and further
reciting that, during that court's
"consideration of the application and the request for stay of
the order, we are reliably informed that the relators have filed
with the Supreme
Page 423 U. S. 1324
Court of the United States an application or a request that that
court act to accomplish the same purposes to be accomplished by
their request to us to exercise our original jurisdiction,"
and then providing:
"The existence of the two concurrent applications could put this
court in the position of exercising parallel jurisdiction with the
Supreme Court of the United States. We deem this inadvisable.
Accordingly, the matter is continued until the Supreme Court of the
United States has made known whether or not it will accept
jurisdiction in the matter."
The issue raised is one that centers upon cherished First and
Fourteenth Amendment values. Just as MR. JUSTICE POWELL observed in
Times-Picayune, 419 U.S. at
419 U. S.
1305, the case
"presents a fundamental confrontation between the competing
values of free press and fair trial, with significant public and
private interests balanced on both sides."
The order in question obviously imposes significant prior
restraints on media reporting. It therefore comes to me
"
bearing a heavy presumption against its constitutional
validity.'" New York Times Co. v. United States,
403 U. S. 713,
403 U. S. 714
(1971). But we have also observed that the media may be prohibited
from publishing information about trials if the restriction is
"necessary to assure a defendant a fair trial before an impartial
tribunal." Branzburg v. Hayes, 408 U.
S. 665, 408 U. S. 685
(1972). See Times-Picayune Pub. Corp. v. Schulingkamp, 419
U.S. at 419 U. S.
1307; Newspapers, Inc. v. Blackwell, 421 U.S.
997 (1975).
It is apparent, therefore, that, if no action on the applicants'
application to the Supreme Court of Nebraska could be anticipated
before December 1, as the above-described communication from that
court's clerk intimated, a definitive decision by the State's
highest
Page 423 U. S. 1325
court on an issue of profound constitutional implications,
demanding immediate resolution, would be delayed for a period so
long that the very day-by-day duration of that delay would
constitute and aggravate a deprival of such constitutional rights,
if any, that the applicants possess and may properly assert. Under
those circumstances, I would not hesitate promptly to act.
It appears to me, however, from the Nebraska court's per curiam
statement that it was already considering the applicants'
application and request for stay that had been submitted to that
tribunal. That court deferred decision, it says, because of the
pendency of the similar application before me, and because it
deemed inadvisable simultaneous consideration of the respective
applications in Nebraska and here in Washington. Accordingly, the
matter was "continued" until it was known whether I would act.
It is highly desirable, of course, that the issue, concerning,
as it does, an order by a Nebraska state court, should be decided
in the first instance by the Supreme Court of Nebraska, and that
the pendency of the application before me should not be deemed to
stultify that court in the performance of its appropriate
constitutional duty. The application, after all, was submitted to
me on the assumption that action by the Nebraska court would not be
forthcoming until after a submission to be scheduled no earlier
than December 1, and on the further assumption that the District
Court's order satisfied the requirements of 28 U.S.C. § 1257. On
the expectation, which I think is now clear and appropriate for me
to have, that the Supreme Court of Nebraska, forthwith and without
delay, will entertain the applicants' application made to it, and
will promptly decide it in the full consciousness that "time is of
the essence,"
Page 423 U. S. 1326
I hereby give the Supreme Court of Nebraska that assurance it
desired that, at least for the immediate present, I neither issue
nor finally deny a stay on the papers before me. My inaction, of
course, is without prejudice to the applicants to reapply to me
should prompt action not be forthcoming.
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