80 PART oNE • THE AMERiCAN sYsTEM
Gag Order
An order issued by a judge
restricting the publication
of news about a trial or a
pretrial hearing to protect
the accused’s right to a
fair trial.A Free Press versus a Fair Trial: gag orders.
Another major issue relating to freedom of the press
concerns media coverage of criminal trials. The Sixth
Amendment to the Constitution guarantees the right of
criminal suspects to a fair trial. In other words, the accused
have rights. The First Amendment guarantees freedom of
the press. What if the two rights appear to be in conflict?
Jurors may be influenced by reading news sto-
ries about the trial in which they are participating. In the
1970s, judges increasingly issued gag orders—orders that
restricted the publication of news about a trial in progress
or even a pretrial hearing to protect the accused’s right
to a fair trial. In a landmark 1976 case, Nebraska Press
Association v. Stuart,^30 the Supreme Court unanimously
ruled that a Nebraska judge’s gag order had violated the
First Amendment’s guarantee of freedom of the press.
Despite the Nebraska Press Association ruling, the Court has
upheld gag orders when it believed that publicity was likely
to harm a defendant’s right to a fair trial. Given how easy it
is for a modern juror to access social media through a smart-
phone, however, gag orders may have become pointless.Films, Radio, and Tv. As we have noted, in only a few
cases has the Supreme Court upheld prior restraint of
published materials. The Court’s reluctance to accept prior
restraint is less evident with respect to motion pictures. In
the first half of the twentieth century, films were routinely
submitted to local censorship boards. Only in 1952 did the
Court find that motion pictures were covered by the First
Amendment.^31 In contrast, the Court extended full protec-
tion to the Internet almost immediately by striking down
provisions of the 1996 Telecommunications Act.^32 Cable TV
received broad protection in 2000.^33
While the Court has held that the First Amendment is relevant to radio and tele-
vision, it has never extended full protection to these media. The Court has used a num-
ber of arguments to justify this stand—initially, the scarcity of broadcast frequencies.
The Court later held that the government could restrict “indecent” programming based
on the “pervasive” presence of broadcasting in the home.^34 On this basis, the Federal
Communications Commission (FCC) has the authority to fine broadcasters for indecency
or profanity. The extent of the FCC’s authority to penalize broadcasters for such infractions
is unclear, however. A Supreme Court ruling in 2012 overturned a specific penalty imposed
by the FCC without addressing the fundamental constitutional question.30. 427 U.S. 539 (1976).
- Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
- Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
- United States v. Playboy Entertainment Group, 529 U.S. 803 (2000).
- FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In this case, the Court banned seven swear
words (famously used by the late comedian George Carlin) during hours when children could
hear them.
Rush Limbaugh is perhaps one of the
most listened to talk radio hosts in America. At times,
he has been considered the spokesperson for American
conservatives. Should the Federal Communications
Commission be able to regulate what he says? (George
Gojkovich/Getty Images)9781285436388_04_ch04_066-091.indd 80 10/15/13 8:56 AM
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