Majority opinion: Yes, and the restraining order is struck down. The U.S. Supreme held unanimously that the gag order violated the press First Am. rights. There was a majority and two concurring opinions. The majority was written by Burger, with whom four other Justices joined.
a. A ban pre-trial publicity is not per se unconstitutional.
Instead, the test that will apply, taken from Dennis, is: The
restraint should be allowed only if the “gravity of the ‘evil,’
discounted by its improbability [of actually being carried out]” is
greater than the damage from the impairment of the First Am. rights.
Here, the trial judge’s conclusion that pretrial publicity would
impair D’s rights was speculative, not certain. Furthermore, the
trial judge should have considered other alternatives for reducing
the harmful effect of such publicity (i.e., change of venue,
postponement of trial, careful voir dire, etc.). Finally, the trial
judge should have considered whether his gag order would even be
effective, in view of the rumors which usually circulate in a
sensational case. On balance, then, it was not sufficiently
established that the benefits of the gag order outweighed the
impairment of the press’ First Am. rights.
1. Dave says it’s strange that majority employs the Dennis test,
since Brandenburg superseded Dennis. The Nebraska Press Association
casts doubt on Brandenburg as a binding precedent (but maybe not,
since this case deals with prior restraints, and Brandenburg did
b. Powell’s concurrence:
1. A prior restraint may be issued if it is shown to be
necessary to prevent the dissemination of prejudicial publicity that
otherwise poses a high likelihood of preventing, directly and
irreparably, the impaneling of a fair and impartial jury. This
requires that: (1) there is a clear threat to the fairness of trial,
(2) such a threat is posed by the actual publicity to be restrained,
AND (3) no less restrictive alternatives are available. Here, these
have not been sufficiently shown.
c. Brennan, Stewart, and Marshall concurrence:
1. There should be an absolute ban on prior restraints as a
method of assuring a fair trial, since other tools (mentioned by the
majority) can and must be used for protecting the right to a fair
a. This view differs from the majority because it would make any
restraint on the press unconstitutional per se. But prior
restraints—like for the preservation of national security—are
available in certain narrow categories, if they meet the New York
Time standard (which is very strict).
NOTE: What made the order in Nebraska Press a “prior restraint” was
not simply that it forbade publishing a certain type of material; it
was that the restriction took the form of an order applicable to one
particular, specifically-identified factual setting (this particular
trial). Had the legislature made it a crime to publish prejudicial
information in advance of any criminal trial, such a statute could
not properly be called a prior restraint, and would not necessarily
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