Prior Restraint

Prior restraint threatens free speech

By Charlyne Berens
Alumni News editor

Jack Pollock, his wife Beverly and 30 to 40 other Nebraska Press Association members were in Las Vegas in October 1975, enjoying the National Newspaper Association convention.

   On the morning of Oct. 18, a fellow NPA member showed Pollock a headline and shocking story in that day’s Las Vegas paper. The story said a killer had murdered six members of a single family.

   Pollock said his first thought was that the horrific murders must have taken place in Las Vegas itself or in some other big city. Then he saw the dateline: Sutherland, Neb. Pollock owned the weekly newspaper in Sutherland.

   The shocking wire story report was the beginning of an odyssey that would wend its way through the United States Supreme Court and into the history books as Nebraska Press Association v. Stuart, a landmark First Amendment ruling.

   Pollock, now retired publisher of the Keith County News at Ogallala, and nine others talked about the facts and the legal implications of the case to a standing-room-only crowd at the Nebraska Press Association convention in Kearney on April 27. The panel presentation commemorated the 25th anniversary of the Supreme Court decision, which was handed down in July 1976.

Robert O’Neil
   Robert O’Neil, former president of the University of Virginia and founding director of the Thomas Jefferson Center for the Protection of Free Expression, set the stage for the presentation.

   The case in question, O’Neil said, is one of three “all-star” cases regarding freedom of the press.

   It began as no ordinary homicide O’Neil said. Instead, Erwin Charles Simants’ murder of six members of the Henry Kellie family in a small Nebraska town was the case of the decade. The county and district court judges were keenly aware of their obligations to assure a fair trial in circumstances that could easily become sensational, O’Neil said.

   Furthermore, Nebraska law offered only limited options to prevent press coverage that might make it difficult to find an impartial jury. Change of venue was a possibility — but only to an adjacent county, where a case like this one was still likely to be big news.

   In addition, O’Neil said, the judges at all levels were aware that the U.S. Supreme Court had, within the previous decade, reversed the convictions of Billy Sol Estes and Sam Sheppard in high-profile trials the justices said were tainted by bad publicity. The court seemed to be giving precedence to a fair trial above all else.

   So Lincoln County Court Judge Ronald Ruff, who presided at Simants’ preliminary hearing, granted a motion by the defense counsel and supported by the prosecution to ban press coverage of parts of the case.

   When Simants was bound over to the Lincoln County District Court, Judge Hugh Stuart revised Ruff’s decision but kept it essentially intact, restraining publication or broadcast — until a jury could be impaneled — of any alleged confessions by Simants or facts strongly implicating him in the murders.

   The NPA, the Nebraska Broadcasters Association, Media of Nebraska and several individual newspapers challenged the gag order, charging that it amounted to prior restraint on publication, a principle that had been anathema to the American system of justice from the time of the nation’s beginnings. The Nebraska Supreme Court revised Stuart’s order but, again, left it mostly intact.

   That left the U.S. Supreme Court as the final resort, and the NPA and its co-plaintiffs appealed there. The high court agreed to hear the case and to fit it into a calendar already established for the term.

   In the meantime, Simants was tried, convicted and sentenced to death. At that point, the state argued the case was moot since the gag order disappeared once the trial had begun. But the Supreme Court justices, who usually refuse to take up moot cases, decided to follow their own precedent and make an exception for a situation they believed was likely to come up again.
“Few of us anticipated a unanimous Supreme Court decision,” O’Neil said. The Burger Court of 1975 was sharply divided on many issues related to press freedom — obscenity, commercial speech, protest speech — but a unanimous decision was what the NPA received.
Chief Justice Burger, not known as a friend of the media, wrote the decision himself. It was a “remarkable opinion, a beacon to freedom of the press,” O’Neil said. Burger’s decision said freedom of the press cannot be limited without being lost and that even pervasive adverse publicity need not inevitably lead to denial of a fair trial.

   Burger suggested that, rather than try to control the press, a judge should control the court and its officers in order to prevent prejudicial information from appearing in print or on the air. A court should use every other possible alternative before resorting to a gag order, the Chief Justice wrote. “The barriers to prior restraint remain high and the presumption against its use continues intact.”

Judge Hugh Stuart
   Retired Judge Hugh Stuart, who presided over the Simants trial and was the named defendant in the NPA v. Stuart case, remembered the trial and the case that grew out of it. He emphasized that he was speaking about his own perspective on and recollections about the crime, the trial and the Supreme Court case, not necessarily from records.

   On Oct. 18, 1975, Stuart said, Erwin Charles Simants was an unemployed, beer-drinking man who lived with his sister and brother-in-law in Sutherland. On that particular Saturday, Simants apparently began drinking in the morning. He returned to his sister’s house in the afternoon. Finding it empty, he took a rifle and went next door to the Henry Kellie home.

   Kellie’s 10-year-old granddaughter was playing outside in the yard. Simants apparently took her into the house and tried to sexually assault her, Stuart said. When she resisted, he shot and killed her with the rifle, then continued his assault.

   When Henry Kellie came home a short time later, Simants shot and killed him as he came in the door, then dragged the body into the bedroom. When Kellie’s wife came home, he shot her, too, then sexually assaulted her and dragged her into the same bedroom, Stuart said.

   Then one of Henry Kellie’s sons and two more grandchildren arrived. Simants shot them all, then went to his father’s home and confessed what he had done. Simants’ father couldn’t believe what he was hearing, but a look through the bedroom window of the Kellie home convinced him his son was telling the truth. The father encouraged Simants to give himself up.
Instead, Simants ran from the house and hid. When he returned to his sister’s home the next morning, police were waiting, and he was arrested.

   The first court action took place in Lincoln County Court in North Platte where Judge Ruff held a preliminary hearing four days after the crime. While the preliminary hearing was open to the public, few citizens actually attended. But the press was there in force. It was at the hearing that the defense made its motion for prior restraint on parts of the case.

   “I knew multiple murders caused lots of publicity,” Stuart said, especially in a small rural town. And Simants had been interviewed by the sheriff and “sort of confessed,” saying he “had to kill them.”   

   Stuart said he was concerned about Ruff’s order for prior restraint, but he was also concerned about the safety of the defendant. So, in addition to continuing a modified gag order, Stuart ordered the sheriff to bring Simants to the courthouse through a back entrance and through a corridor cleared of people.

   The judge set the trial for Jan. 7, 1976, which attorneys on both sides protested was too early. The order for prior restraint — part of which, Stuart said, was “not to expound on the shocking parts of the crime — was to remain in place until the trial began.

   Stuart said he patterned his order on the one issued by the county court and on the newly-issued Nebraska Bar-Press Guidelines, which encouraged care in pretrial publicity. But the NPA objected. “They said as a guideline it’s OK, but it should be voluntary. Don’t make it an order,” Stuart said.

   Stuart also fretted about having to sequester a jury, he said, but he found a way to make it work, hiring extra bailiffs to supervise the jury members during every hour the jurors were together.

   The trial didn’t take long: Simants was found guilty on Jan. 17, 1976. “On Jan. 26, I sentenced him to death on six counts,” Stuart said.

   In the meantime, of course, the NPA challenge to the gag order was making its way through the higher courts. “I didn’t pay a lot of attention to the NPA case,” Stuart said.   

   The judge emphasized that he had softened Ruff’s original gag order and that the Nebraska Supreme Court had softened Stuart’s order. But it was Judge Stuart against whom the NPA brought suit.

Keith Blackledge
   Keith Blackledge, now retired, was editor of the North Platte Telegraph at the time of the murders.

   Blackledge had been working on an ongoing story about a North Platte high school bond issue when the Simants case appeared in court. “I was a reluctant participant,” Blackledge recalled. “On the evening of Judge Ruff’s decision (to grant the gag order), I was celebrating passage of the bond issue.”

   The fight over the gag order began in the same way many wars start, Blackledge said: People have differences. They draw the lines too soon. Other people choose sides, and the battle starts. Judge Ruff was only 34 years old at the time, Blackledge said. The county attorney was 27, the public defender not a lot older. Perhaps they did not exercise the best possible judgment, Blackledge said.

   “But, as Judge Stuart said, we all wanted it to be fair and (the verdict) not to be overturned” for whatever reason, including prejudicial publicity. However, Blackledge spoke out against the gag order, writing an Oct. 23 editorial headlined “Subservient right is no right at all.”  

   As the NPA case got under way, several Omaha attorneys joined NPA attorneys at North Platte. In one hearing before Judge Stuart, one of the Omaha lawyers said he would rather see a guilty man go free than to see a court order a violation of free speech.

   “It was noble sentiment, but I cringed,” Blackledge said. “I knew what we were in for.”

   The letters to the editor and the comments to reporters began. The community, generally, was in favor of the gag order. So were many lawyers, Blackledge said. The crime was so heinous that the public was willing to sacrifice some press freedoms in order to assure the man convicted of the murders stayed that way.

Leonard Vyhnalek
   A North Platte attorney, Vyhnalek was the court-appointed defense attorney in the Simants case.

   Vyhnalek had resigned in spring 1975 as Lincoln County deputy county attorney but had agreed to stay on in the position until the county found a replacement. He was training an August law school graduate to take over when “this happened.” Vyhnalek was appointed to defend Simants.

   “The facts were atrocious,” he said, “and our objective was noble. We wanted to be sure we couldn’t be accused of contaminating the jury pool. We were not prepared for the firestorm.”

   The original story about the murders set out the facts with only a few exceptions, Vyhnalek said. And those facts were repeated in every subsequent story about both the Simants trial and the NPA challenge to the gag order. “Everyone in the county knew what was happening anyway.”

   Eventually, Simants’ conviction was overturned not because of stories in the media but because the county sheriff played cards with members of the jury during the trial. Simants was tried again in Lancaster County and found innocent by reason of insanity, Vyhnalek said. Simants continues to live at the Lincoln Regional Center.

Woody Howe
   G. Woodson Howe, senior vice president for news of the Omaha World-Herald Company, was executive editor and editor of the World-Herald and chairman of Media of Nebraska at the time of the Sutherland murders.

   NPA v. Stuart was, indeed, a landmark case, Howe said. “We’re talking about censorship when we say gag order or prior restraint. This case brought an end to attempts to censor the press.”

   The Supreme Court decision was a huge victory, Howe said. “This would be a different country if it were not for this case.”

   The Nebraska Bar-Press Guidelines were negotiated after the Sheppard conviction was overturned, in large part because of the media circus that had ensued at the trial. “We were afraid if we had no guidelines we’d be excluded from the courts and records and access to the police,” Howe said.

   Judge Stuart may think it odd the press would agree to the guidelines but then take issue with making them legal orders, Howe said, but the guidelines should not be considered law. They are and should be open to interpretation, he said.

   The NPA members demonstrated a lot of courage in pursuing the case, Howe said, raising a great deal of money and putting the respected name of the Nebraska Press Association behind the effort. As the case proceeded, some publishers across the state were subject to public hostility, but they did not bow out of the process.

   “They did this for a principle,” he said, “not self-interest but in the interest of protecting the fundamental rights of the American people.”

Gil Savery
   Gil Savery, now retired, was assistant managing editor of the Lincoln Journal at the time of the Simants murder trial and national vice chairman of the Freedom of Information Committee of the Society of Professional Journalists.

   Savery reminded the audience about the “time and temperature” of the 1970s. The media were under attack. First Amendment issues were near the boiling point. Between 1973 and 1976, Savery said, U.S. courts had issued 170 orders restricting the press. And with the NPA v. Stuart case, Nebraska became a focal point.

   Privacy laws were in the making. For its part, the media sought shield laws to protect sources and laws that would make public records and meetings open to press and public.

   Not everyone agrees on the reach of the First Amendment in specific situations, Savery said, “but this case altered the landscape.”

   It is the duty of the press to monitor the institutions of society, most particularly the institutions of the government, he said. That duty, Savery said, was probably what the framers of the Nebraska Constitution had in mind when they included the words, “All courts shall remain open.”

Larry Walklin
   Larry Walklin is a member of the broadcasting faculty at NU. At the time of the NPA v. Stuart case, Walklin was president of the Nebraska Professional Chapter of the Society of Professional Journalists and the treasurer of the Nebraska Broadcasters Association.

   Walklin said the involvement of the Society of Professional Journalists in the case was significant because SPJ is made up of individual journalists rather than of newspapers or broadcast stations. “This went to the soul of individual journalists,” he said.

   The victory came largely because of the collaboration and cooperation of so many groups and individuals. All the associations and newspapers who pursued the case worked hard to raise the $110,000 necessary to take the argument all the way to the U.S. Supreme Court, Walklin said. That kind of collaborative effort “worked here but may not have worked elsewhere in the United States,” he said.

Alan Peterson
   Alan Peterson has been a member of the Lincoln-Omaha-Aurora law firm Cline Williams Wright Johnson and Oldfather since 1968. Since the mid 1970s, he has been the attorney and lobbyist for Media of Nebraska, the First Amendment rights coalition of the Nebraska news media.

   Peterson was the attorney who began the legal process in NPA v. Stuart after receiving a phone call from Joe R. Seacrest, the late publisher of the Lincoln Journal, who said something intolerable had happened in the Simants case.
The case was special, Peterson said; it was about the fundamental freedom to report on what the government does.
The case was special in another way, too, Peterson said. In only a handful of cases have the “unanimous passion and power of the media been combined to fight with no indication they would ever give up … We knew from the beginning it would go all the way, win or lose.”

   Peterson said those involved expected a backlash, and a backlash, indeed, materialized. In the six to eight years after the decision in NPA v. Stuart, many efforts were made to close courts in Nebraska.

   “We fought every one,” Peterson said. “We still do. If Nebraska ever quits leading in this area, it will be long after we’re gone.”

Floyd Abrams and Bill Eddy
   Bill Eddy, assistant city editor for the Lincoln Journal Star, was a reporter and associate editor of the North Platte Telegraph. He presented some of his personal recollections about covering the Simants trial.

   Floyd Abrams, noted First Amendment attorney, addressed the gathering in a brief telephone conference call. One of the two attorneys who argued the case before the U.S. Supreme Court, Abrams said, “If it had come out a different way, we’d have a different body of law and a different country.”

Conclusion
   Wrapping up the panel presentation, O’Neil said the decision in NPA v. Stuart still matters today.

   “This was classically Nebraska’s victory,” he said, “indicating that the First Amendment applies as fully to trial courts in North Platte as it does to the highest and mightiest anywhere.”