427 U.S. 539 (1976), argued 19 Apr. 1976, decided 30 June 1976 by vote of 9 to 0; Burger for the Court, Brennan and Stevens concurring. In Nebraska Press Association, the Court considered for the first time the permissibility of a gag order on the press to protect a criminal defendant's right to a fair trial. The case involved the murder of six members of one family and the subsequent commission of necrophilia. The trial court prohibited publication of the confession of the accused as well as the contents of a note written by him on the night of the crime. In overturning the gag order, the Supreme Court reiterated its longstanding opposition to prior restraints. It refused to erode established First Amendment press freedoms in order to combat speculative dangers to an accused's fair trial rights.
The Court primarily viewed the gag order from the perspective of the First Amendment and presumptively treated it as unconstitutional. It concluded that most adverse publicity presented few threats to important Sixth Amendment rights. Moreover, the Court observed that the press often guards against miscarriages of justice by subjecting criminal trials to extensive public scrutiny. By employing a version of the clear and present danger test, the Court articulated a First Amendment limit on the means available to trial judges to combat prejudicial publicity.
Patrick M. Garry