Before a trial begins, to protect a defendant’s right to a fair trial, the amount or kind of information released by trial participants or broadcast or published by the press is often restricted through an order issued by a presiding judge.
The roots of restrictive, or gag, orders are found in Sheppard v. Maxwell
Gag orders often restrict the release of information such as the defendant’s prior criminal record, character, and reputation; defendant’s confession or other statements made to the police; results of defendant’s lie detector tests or refusal to take tests; information about prospective witnesses that reveals their identity or expresses opinion as to their credibility; possibility of a plea bargain; opinions as to whether the defendant is guilty or innocent; and opinions about the evidence in the case.
Before Sheppard, the Court had rejected the judge’s authority to punish out-of-court statements in Nye v. United States
Chief Justice Warren E. Burger, writing for the Court in Nebraska Press Association v. Stuart
In Nebraska, Chief Justice Burger outlined a three-pronged test to determine whether a restrictive order against the press would be constitutional. He stated that the justification of restrictions would be evaluated after determining “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; (c) how effectively a restraining order would operate to prevent the threatened danger.” In other words, pretrial publicity would have to be inevitable, no other alternatives to lessen the damage to a fair trial would exist, and the gag order would have to be effective for the order to stand.
Several other justices would have given the press more protection in Nebraska. Justice Byron R. White expressed doubt that Burger’s three-pronged test would ever be met and favored an all-out ban against gag orders. Justices William J. Brennan, Jr., Potter Stewart, and Thurgood Marshall advocated a rule invalidating gag orders on their face under the First Amendment.
Two subsequent Court rulings reinforced Nebraska. In Landmark Communications v. Virginia
In what is considered a major setback for the press, the Court refused to hear (denied certiorari in) a case in which journalists were required to pay fines for contempt charges that had been overturned, United States v. Dickinson
In Gentile v. State Bar of Nevada
Gillmor, Donald, Jerome Barron, and Todd Simon. Mass Communication Law: Cases and Comment. 6th ed. Belmont, Calif.: Wadsworth, 1998. Pember, Don. Mass Media Law. Boston: McGraw-Hill, 1999. Teeter, Dwight, Don Leduc, and Bill Loving. Law of Mass Communications: Freedom and Control of Print and Broadcast Media. 9th ed. New York: Foundation Press, 1998.
Contempt power of courts
Nebraska Press Association v. Stuart
Restrictions on court power
Sheppard v. Maxwell
Speech and press, freedom of