Fair Trial Issues
The issue: What limitations does the First Amendment place on gag orders and other approaches taken by judges to protect the fair trial rights of defendants?

This page considers the interplay between two provisions of the Bill of Rights: the First Amendment's guarantee of free speech and the Sixth Amendment's guarantee to criminal defendants of a fair trial by an impartial jury.

Our first case, Sheppard v Maxwell, relates to a sensational murder trial that was widely believed to have inspired the television series and movie, The Fugitive.  Convicted twelve years earlier of killing his young wife Marilyn, Dr. Sam Sheppard wins a new trial after his attorney, F. Lee Bailey, succeeds in convincing the Supreme Court that the massive publicity surrounding his original trial constituted a violation of his right to a fair trial.  (In his retrial, Sheppard was acquitted.)  The record in Sheppard shows an out-of-control press first demanding Sheppard's arrest, then calling Sheppard "a liar," printing stories about his refusal to take a lie-detector test, and doctoring crime scene photos to suggest that the murder weapon was a surgical instrument.  The Supreme Court concluded that the trial was conducted in a "Roman Holiday" atmosphere and suggested that trial courts should take "strong measures" to protect fair trial rights.  The Court said that there was no need to decide "what sanctions might be available against the press"--leading some judges, perhaps, to think sanctions might be appropriate in certain cases.

Ten years later, the Court considered the appropriateness of strong measures taken by a judge in a closely-followed murder trial in Nebraska.  Nebraska Press v Stuart considers the constitutionality of a restrictive ("gag") order entered against the press preventing them from publishing information concerning the defendant's confession or "other facts strongly implicative of the accused."  The Supreme Court, ruling unanimously, found the gag order to violate the First Amendment.  The plurality opinion suggested that restrictive orders were only constitutional when justified by a compelling interest and when no less speech-restrictive alternatives were available to protect fair trials.  Concurring, three justices would have held restrictive orders to be a form of prior restraints that were always unconstitutional, while two other justices expressed "grave doubts" that a restrictive order would ever pass constitutional muster.

Finally, in Gentile v State Bar of Nevada (1991), the Court considers whether a criminal defense attorney could be reprimanded by the State Bar for talking about the facts of a criminal case before trial.  Five justices agreed that it is constitutionally permissible to impose restrictions on the speech of attorneys that wouldn't be permissible against the press.  Four justices would have insisted that any punishment of an attorney's speech be justified by a very strong state interest and employ closely tailored means.  Gentile wins his appeal, however, with the four votes of the more speech-protective justices plus the vote of Justice O'Connor, who found the rule under which Gentile was punished failed to provide adequate notice.


Sheppard v. Maxwell (1966)
Nebraska Press Assn' v. Stuart (1976)
Gentile v. State Bar of Nevada (1991) 

Marilyn and Sam Sheppard.  Sam Sheppard's conviction for murdering Marilyn was reversed by the Supreme Court in 1966 because of the prejudicial publicity surrounding the trial. 


1. What measures should a judge take in a celebrated trial to protect the Sixth Amendment rights of a criminal defendant?  Will these measures always be sufficient to guard against the effects of prejudicial pretrial publicity?
2.  After reading Sheppard, could you tell a trial that was unconstitutionally tainted by the effects of publicity from one that wasn't?  Does the Court set forth a clear standard for analyzing whether the right to a fair trial has been violated?
3.  After Nebraska Press, can you imagine a situation in which a restrictive order entered against the press would be found not to violate the First Amendment?
4.  Why doesn't the Court in Nebraska Press worry more about the rights of the criminal defendant?  Does it make sense to say that defendants only have rights to fair trials, not perfectly fair ones?
5.  What test should apply to evaluating the constitutionality of gag orders entered against attorneys, parties, and witnesses?  Should the standard be the same for all three groups?  Should attorneys be free to talk to the press about pending cases?
6.  What standard should apply to a restrictive order preventing jurors from discussing the content of their deliberations with the press?   
Read an account of the case, excerpts from the trial transcript, analysis of the evidence in the case, see images, and examine other materials relating to the Sheppard case:

Sam Sheppard Trial Background

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