By Shawn Renner

On October 18, 1975, six members of a family in rural Sutherland NE (pop. 850) were brutally murdered. Authorities announced that a local resident, Erwin Charles Simants, was wanted in connection with the murders.

Simants was arrested the following day and charged with six counts of first degree murder. The district judge in North Platte, Hugh Stuart, held a preliminary hearing in Simants’ case a few days later.

While the hearing was open to the public, Judge Stuart entered a so-called “gag order” in an effort, he said, to balance Simants’ fair trial rights under the Sixth Amendment with the free speech rights of the press and public under the First Amendment.

The gag order prohibited the news media and public from disclosing some of the evidence admitted at the preliminary hearing (e.g., statements Simants had made to both police and acquaintances, testimony of the coroner about his conclusions, and the identity of victims sexually assaulted by Simants as well as details of the sexual assaults.

The gag order also prohibited the news media from reporting “the exact nature of the limitations of publicity as entered by this order,” presumably so that the other prohibited information could not be disclosed by reporting on the details of the order itself.

A coalition of local, state and national news media challenged the gag order as a violation of the First Amendment in several courts over the course of a year and a half, with the litigation ultimately being known as Nebraska Press Association v. Stuart.
Nearly fifty years later, NPA v. Stuart remains one of the bedrock First Amendment precedents. As most members of the press know, the U.S. Supreme Court reversed a decision of the Nebraska Supreme Court affirming the gag order and ruled that gag orders prohibiting the press from reporting on criminal case proceedings violate the First Amendment.

Except that understanding isn’t completely accurate, and the litigation related to the murders and the gag order took a variety of twists. And, as it turned out, the real threat to Simants’ fair trial rights was not the news media but the local sheriff.

While the litigation over the gag order was procedurally complicated, the Nebraska Supreme Court considered the validity of the gag order in an opinion it issued a little more than a month after the preliminary hearing.

The Court recognized that gag orders issued against the press are presumed to violate the First Amendment, but held that the presumption was overcome by the need to protect Simants’ Sixth Amendment fair trial rights. Judge Stuart had, in practical effect, imposed parts of the Nebraska Bar/Press Guidelines in his gag order, a set of voluntary factors the press generally considers in reporting on criminal cases, but the Nebraska Supreme Court held that converting voluntary considerations into mandatory publication rules was improper.

Instead, balancing the news media’s right to publish evidence offered in an open court proceeding against Simants’ right to a fair trial before an impartial jury, the Court replaced Judge Stuart’s gag order with a revised gag order, effective until the trial started, which prohibited the news media form reporting the existence or contents of the confessions Simants had given, whether to law enforcement or third parties, as well as “other information strongly implicative of the accused as the perpetrator of the slayings.”

While the Nebraska Supreme Court proceedings were pending, the media coalition had also asked the U.S. Supreme Court to vacate the gag order. After the Nebraska Supreme Court filed its opinion, but before Simants’ trial started, the U.S. Supreme Court agreed to consider NPA’s appeal, but declined to stay the effect of the gag order pending that appeal. In June, 1976, The Supreme Court handed down its opinion in Nebraska Press Association v. Stuart.

Chief Justice Burger wrote the opinion for a majority of the Court. Like the Nebraska Supreme Court, the majority held that while prior restraints are presumed unconstitutional under the First Amendment, there is no absolute right to publish all evidence offered in any Court proceeding.

Also like the Nebraska Supreme Court, the U.S. Supreme Court majority’s analysis balanced the public’s and media’s right to publish court proceedings against Simants’ right to an impartial jury of his peers.

However, the Supreme Court majority found that the Nebraska courts had failed to consider alternatives to gagging the press (like changing venue, probing voir dire of potential jurors, appropriate jury instruction, etc.).

The Court also observed that in a small town, sensational murders will generate great interest and discussion regardless of news reporting, calling into question the efficacy of a gag order.

The majority opinion found that the balance thus swung in the media’s favor, rendering the gag order unconstitutional under the First Amendment.

Contrary to the common understanding of NPA v. Stuart, the Supreme Court did not hold that gag orders in criminal cases prohibiting publishing information available to the public always violate the First Amendment. In fact, that was precisely the position Justices Brennan, Stewart and Marshall advocated in a concurring opinion in the case, which agreed with the outcome but not the majority’s reasoning.

But although the Supreme Court majority stopped short of holding gag orders always unconstitutional, no Supreme court opinion since Stuart has approved this sort of gag order, and virtually no lower court decisions have either. In practical effect, Justice Brennan’s concurring opinion better reflects the way the courts have viewed gag orders since Stuart.

Thus, although it comes with the Supreme Court’s caveat that the First Amendment is never absolute, NPA v. Stuart was and remains a strong warning to trial courts – there are a variety of ways to guard a criminal defendant’s fair trial rights, but gagging the press is not one of them. It is one of the most important opinions about media First Amendment rights in our country’s history.

While the U.S. Supreme Court appeal was pending, Simants’s murder trial went forward, and per the Nebraska Supreme Court’s decision, the trial was open to the public and the press was free to report the evidence. Consistent with the confesssions he gave to several cops and acquaintances, Simants was convicted on all counts, and he was sentenced to death.

But as it turns out, the real threat to Simant’s fair trial rights was not the news media but the government itself.

After the Nebraska Supreme Court affirmed his convictions and death sentences, jurors disclosed to Simants’ lawyers that the Sheriff had visited them several times while they were sequestered during trial.

During their sequestration to avoid outside influences, the Sheriff told the jurors about his many times testifying in criminal trials and played poker with several of them, in violation of the sequestration order.

The Nebraska Supreme Court held that the Sheriff’s actions violated Simant’s Sixth Amendment rights, vacated his convictions and ordered a new trial.

At that trial, a new jury untainted by the Sheriffs actions found Simants not guilty by reason of insanity. He was committed to a psychiatric facility, where he remains to this day.

About the author

Shawn Renner is a retired attorney who specialized in media law. He served as NPA hotline attorney for many years.