Encyclopedia of the Great Plains

David J. Wishart, Editor


The potential conflict between society's First Amendment right to a free press and a criminal defendant's Sixth Amendment right to a fair trial was addressed by the U.S. Supreme Court in the landmark decision of Nebraska Press Association v. Stuart. The grisly case began on the evening of October 18, 1975, when Erwin Simants walked into the home of Henry Kellie, just outside the village of Sutherland, Nebraska, carrying a rifle. Once inside, Simants brutally raped and then murdered Kellie's ten-year-old granddaughter. Later, when other members of the Kellie family arrived home, they found Simants waiting for them. After killing both Henry and his wife, their son, and two other grandchildren, Simants, an unemployed alcoholic, calmly visited both of Sutherland's two bars and then spent the rest of the night outside the Kellie house.

The next morning, Simants was quickly arrested and charged with six counts of firstdegree murder. Just as quickly, television and newspaper articles describing the horrific events began to appear. Even before the bodies were removed from the Kellie home, news agencies from around the country had focused on Sutherland, reporting the multiple homicide. Such widespread media coverage caused concern that public disclosure of highly prejudicial information revealed in Simants's preliminary pretrial hearing would taint potential jurors and prevent a fair trial. As a result, Lincoln County District Judge Hugh Stuart granted the prosecuting attorney's request to gag the press. He strictly prohibited the media from publishing reports of confessions and other details that strongly implicated Simants.

The press complied with Stuart's order but appealed to the Nebraska Supreme Court, claiming the order violated the press's constitutional right to report information disclosed in open court. The media contended that the First Amendment right to a free press necessarily included the right to cover events both in and outside of the courtroom and that this ability was essential to prevent judicial abuse of authority. In contrast, Stuart's counsel argued that Simants could not receive a fair trial without the restrictions. Allowing the press to publish extremely prejudicial information, his defense asserted, would bias potential jurors and preclude their ability to base their decision solely on evidence received in court. Prior exposure to the case through the media, it was argued, would make it impossible to find an impartial jury as guaranteed by the Sixth Amendment.

The Nebraska Supreme Court, after modifying Stuart's order, affirmed it. Eventually, the suit was brought before the U.S. Supreme Court, which reversed the decision, holding that the order did impermissibly restrict free press. The Court acknowledged that prior restraints may be necessary in certain rare circumstances, but the court went on to explain that the presumption against the use of prior restraints can only be overcome by showing that less restrictive alternatives cannot sufficiently protect a defendant's rights. Nebraska Press is often characterized as the most significant First Amendment ruling emanating from Nebraska, and it essentially closed the question of prior restraints in criminal law. As a result, the media enjoy nearly complete discretion over what and when to publish concerning judicial proceedings.

James W. Hewitt Lincoln, Nebraska

Larson, Milton R. "Free Press v. Fair Trial in Nebraska: A Position Paper." Nebraska Law Review 55 (1976): 543–71.

Younger, Eric C. "The Sheppard Mandate Today: A Trial Judge's Perspective." Nebraska Law Review 56 (1977): 1–22.

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