The Burger Court ruled in Nebraska Press Association v. Stuart (1976) that gag orders on the press represented prior restraints on expression that should be tolerated only under extremely limited circumstances. The case began in a small Nebraska town when Edwin Charles Simants allegedly murdered six members of the Henry Kellie family in Sutherland, Nebraska. The attorneys in the case (both the prosecution and the defense) asked the judge to limit pretrial publicity. Both a county and district judge limited pretrial publicity in the case. The district judge, Hugh Stuart, wrote that “because of the nature of the crimes charged in the complaint that there is a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.”

The Nebraska Press Association appealed the judge’s order limiting pretrial publicity to the U.S. Supreme Court. The Court determined that the trial judge’s order violated the press’ First Amendment rights. Chief Justice Warren Burger wrote that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

In order for a trial judge to issue a prior restraint, the U.S. Supreme Court said that a trial judge must make three determinations: (1) the nature and extent of pretrial news coverage; (2) whether other measures (change of venue, jury sequestration) would lessen the effects of pretrial publicity; and (3) how effective the prior restraint would be to prevent the threatened danger.