| Book Review | Law and History Review, 27.3

Book Review

Mark Scherer, Rights in the Balance: Free Press, Fair Trial and Nebraska Press Association v. Stuart. Lubbock: Texas Tech University Press. Pp. 256. $40.00 (ISBN 978-0-89672-626-0).

Nebraska Press Association v. Stuart produced a durable rule: trial courts can virtually never forbid media to publish what they learn in court or from court papers, even before trial. But at the time it was decided, the case seemed like an agonizingly hard conflict between the First Amendment's right to press freedom and the Sixth Amendment's guarantee of trial by an "impartial jury."

Mark Scherer's valuable monograph situates the case within this perceived conflict, depicting the trial judges who issued the controversial order as struggling with two conflicting imperatives from the United States Supreme Court—on the one hand, the Court's insistence that trial judges protect their proceedings from press coverage, and on the other, the Court's presumption that "prior restraints" on publication (statutes or injunctions that censor the media in advance)—are almost always unconstitutional.

On October 18, 1975, an alcoholic drifter named Erwin ("Herb") Simants entered the home of his next-door neighbors, the Kellie family, attempted to rape ten-year-old Florence Kellie, then shot her to death at point-blank range with a .22 rifle. He then killed her grandparents, her uncle David, and David's two small children, Deanne and Daniel. At various points during the killings, Simants attempted to rape the corpses of both Florence and her grandmother, Marie (22–23).

The murders terrorized the small town of Sutherland, Nebraska. The panic was augmented by the local sheriff, Gordon "Hop" Gilster, who told the media, "There's a sniper loose with a shotgun, and he's killing people" (25).

In fact, Simants was soon apprehended and readily confessed. Ronald Ruff, the judge at Simants's preliminary hearing, was convinced that continued publicity—particularly if it revealed Simants's confession—would make a fair trial impossible. The judge ordered all persons, whether parties to the case or not, not to disclose any information revealed at the preliminary hearing, which by law was open to the public (48). "I didn't care what was in the paper," Scherer quotes Ruff as saying. "I just didn't want to be reversed" (55). The case became at once a cause célèbre for the news media and their lawyers nationwide.

At a subsequent proceeding, one lawyer for the local media outraged the court and the public by insisting that the First Amendment must always take precedence over fair-trial concerns. "Goodness gracious, we want this man to have a fair trial," the lawyer said, "but I'd let somebody go free who was guilty before I'd deny freedom of speech" (61). The order stood.

In the United States Supreme Court, the case was argued by, among others, legendary First Amendment lawyer Floyd Abrams, who had also argued the Pentagon Papers case. He asked the justices for "nothing less than a renunciation of power — the conclusion by this Court that the judiciary should not and indeed may not tell the press in advance what news it may print" (130). The Court refused such a categorical decree, but it did set aside the Nebraska order.

Weighing New York Times v. United States against Sheppard v. Maxwell, the Court strongly reaffirmed its rule against prior restraints. The state had not shown "that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary," Chief Justice Burger wrote.

Scherer concludes the book by noting that Simants was tried in Sutherland soon after. The jurors rejected his insanity defense, and Judge Stuart sentenced him to death. But that conviction was overturned when it became known that the excitable Sheriff Gilster had paid nightly visits to the sequestered jurors, even playing card games with them. After a change of venue, Simants was found not guilty by reason of insanity. He is still alive in a Nebraska mental hospital.

Scherer's book is a welcome resource for First Amendment scholars and students of court procedure. The book is stronger in its narration of events in Nebraska than of those at the Supreme Court. Occasional annoying errors of fact creep in—Justice Byron White was not "the only appointee of President John Kennedy"; though he had resigned by the time of Stuart, Justice Arthur Goldberg was also a Kennedy appointee. The author quotes Floyd Abrams as suggesting that some material is "devoid of the record"; as is clear from the tape of oral argument, Abrams said "dehors the record"—an appellate term meaning outside the factual material properly before the court (131).

Rights in the Balance is nonetheless a significant contribution to the historiography of the First Amendment, and will likely be the standard reference on the case for some time to come.

Garrett Epps

University of Baltimore

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