Pretrial publicity and gag rule Summary

  • Last updated on November 11, 2022

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[case]Sheppard v. Maxwell[Sheppard v. Maxwell] (1966). Supreme Court justice Tom C. Clark, writing for the majority, stated that it was the trial judge’s responsibility to ensure a fair trial. He named trial participants who could have been instructed not to release information to the news media and suggested that the press could have been warned about the inappropriateness of publishing information not released in court. Although Clark clarified his statements later, indicating that he never implied that contempt was an option for the press, judges took his original statements to heart, restricting trial participants and the press as to what they could say about a case. Violators of gag orders could be held in criminal or civil contempt and be fined accordingly. Criminal contempt generally carries harsher penalties, and the standards for deciding whether or not a contempt charge will be criminal or civil vary among the states.

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.

Prior Restraint Tests

Before Sheppard, the Court had rejected the judge’s authority to punish out-of-court statements in Nye v. United States[case]Nye v. United States[Nye v. United States] (1941), and in Bridges v. California[case]Bridges v. California[Bridges v. California] (1941), the Court said that contempt power could be used only when a clear and present danger of endangering a fair trial was evident.Prior restraint

Chief Justice Warren E. Burger, writing for the Court in Nebraska Press Association v. Stuart[case]Nebraska Press Association v. Stuart[Nebraska Press Association v. Stuart] (1976), applied the “gravity of evil test,” formulated by Federal Circuit Court Judge Learned Hand and applied by the Supreme Court in Dennis v. United States[case]Dennis v. United States[Dennis v. United States] (1951). The test evaluates the constitutionality of prior restraint in view of whether “the gravity of the ’evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

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.

Later Developments

Two subsequent Court rulings reinforced Nebraska. In Landmark Communications v. Virginia[case]Landmark Communications v. Virginia[Landmark Communications v. Virginia] (1978) and Smith v. Daily Mail Publishing Co.[case]Smith v. Daily Mail Publishing Co.[Smith v. Daily Mail Publishing Co.] (1979), the Court expressed a reluctance to punish the press for publishing information in its possession. Chief Justice Burger wrote the opinions for the Court in each case, making a distinction between placing restrictions on the First Amendment and punishing journalists for criminal activity. According to this line of reasoning, journalists may be punished for criminal activity such as trespassing or stealing information under criminal law but should not have their First Amendment right of a free press restricted by prohibiting them from publishing the information thus gained.

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[case]Dickinson, United States v.[Dickinson, United States v.] (1972). This suggests that journalists should obey gag orders until their appeals to overturn have been heard.

In Gentile v. State Bar of Nevada[case]Gentile v. State Bar of Nevada[Gentile v. State Bar of Nevada] (1991), Chief Justice William H. Rehnquist, writing for the majority, applied a standard of “substantial likelihood” of impairing a fair trial to the question of whether a state can proscribe lawyer comments made out of court.

Further Reading
  • 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

Prior restraint

Restrictions on court power

Sheppard v. Maxwell

Speech and press, freedom of

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