Conflict Over Gags

The six bodies of a farm family in Sutherland, Neb., lay in their blood, dead from gunshot wounds; a ten-year-old girl and her grandmother had been raped after their deaths. As word of the grisly murders spread last October, major news organizations descended --some literally--on the scene. NBCTV, for example, sent a chartered helicopter whirling north from Denver. The journalists started out expecting to get a major crime story; instead, they ended up with a courtroom confrontation between the conflicting rights of a free press and of a defendant to a fair trial.

Last week lawyers for 35 news organizations and the state of Nebraska argued the relative weights of these opposing constitutional guarantees before the U.S. Supreme Court in a case growing out of the mass murder. Erwin Charles Simants, an unemployed farm hand and neighbor of the slain family, had been arrested for the killings within a day. When rumors began to spread that he had confessed, a local judge--at the request of both prosecution and defense attorneys--ordered the press not to print most of what was revealed at a public preliminary hearing. His reason: Simants' right to a trial untainted by prejudicial publicity superseded the freedom of the press. Although that broad ban was trimmed somewhat on appeal, a gag remained in force until the trial began in December (Simants was convicted and sentenced to die).

Judicial gag orders were virtually unknown a decade ago. Then in 1966 Dr. Sam Sheppard's conviction for the murder of his wife was reversed by the Supreme Court because of the hostile trial atmosphere created by the press. Although the court did not mention gag rules as a way to control such press excess, judges began slapping them on. The Reporters Committee for Freedom of the Press has counted 192 such court orders in the past decade.

Whatever form they take, and there are several, gag orders ban reporters from printing information they have discovered themselves, or that is publicly available--and occasionally even prevent reporting the fact of the gag itself. Explaining the need for the Simants action last week, Harold Mosher, Nebraska's assistant attorney general, argued that "temporary restraints on First Amendment freedoms are permitted in extraordinary circumstances where no other means exist to protect other fundamental interests." The basic right of a defendant to keep inadmissible evidence from a jury during a trial is clearly infringed if the press has presented such evidence to potential jurors--i.e. the public--before the trial.

Constitutional experts, however, point out that gag orders often create as many legal problems as they solve. Among them:

RUMORS. Gossip and misinformation can as easily create a prejudicial threat to defendants as news accounts. Disagreeing last week, Simants' prosecutor, Milton C. Larson, argued before the court that "a potential juror would much more likely put aside something Mrs. Jones told her than what she read in the newspaper."

DELAY. Gag orders can impede or compromise the public's access to information it has a right to have. ABC-TV, as a part of a 1973 documentary on fire hazards, had a segment showing a flaming plastic crib; the crib manufacturer, alleging potential damage to the firm's reputation, got a judge to order the film clip removed only hours before the broadcast. ABC excised the scene but fought the case successfully; nine months later the disputed film was shown on the evening news.

OFFICIAL MISCONDUCT. "As the presumed watchdog of democracy, the press must watch over the judicial system too," says Henry F. Schulte, dean of Syracuse University's journalism school. "Gag laws could cut into that function." After the Rockford Star in Illinois ran stories on patronage abuse in local courts, an alleged political appointee sued for libel. Citing the need to preserve a fair trial, a judge then ordered the Star not to write editorials about the issues, namely the worth of local courts. The Star violated the judge's gag and later got it thrown out on appeal. The paper nonetheless faces possible punishment because of a recent case requiring that even unconstitutional court orders be obeyed until they are overturned.

Some legal experts believe that the press's desire for a total ban on gags is unreasonable. Stanford Constitutionalist Gerald Gunther says the claim that press freedom "is the one absolute right in the Constitution is absolute nonsense." Former Solicitor General Erwin Griswold, who advised Nebraska officials for their Supreme Court appearance, argues with some persuasion that the mounting need for gags is an inevitable "albatross the press carries around its neck because of its steadily increasing visual impact and immediacy." New York Times Attorney Floyd Abrams sought to rebut this contention before the Justices by citing the trials of John Mitchell, John Connally and William Calley which, he said, show that "at no time in our history have jurors demonstrated more ability to determine cases independently"--that is, without being swayed by the press.

Most court observers last week thought that Nebraska's case was not put as well as it might have been. Nonetheless, the questioning indicated the high court may be closely split on the issue. Jack Landau, the main force behind the reporters' free-press committee, hopes for what he would consider a good compromise. "Before a judge could enter a restrictive order, he should be made to hold a hearing to explore all other possibilities [such as a change of venue]. At this hearing, not only the defense and prosecution but also the press could be heard on a proposed gag rule." Some answer with guidelines obviously is needed. Currently the third most litigated free-speech issue--after obscenity and libel--is the question of gag rules.

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