Opinions & Commentaries

These two cases, while growing out of different circumstances and concerning different parties, both relate to the scope of our national constitutional policy safeguarding free speech and a free press. All of the petitioners were adjudged guilty and fined for contempt of court by the Superior Court of Los Angeles County. Their conviction rested upon comments pertaining to pending litigation which were published in newspapers. In the Superior Court, and later in the California Supreme Court, petitioners challenged the state's action as an abridgment, prohibited by the Federal Constitution, of freedom of *259 speech and of the press; but the Superior Court overruled this contention, and the Supreme Court affirmed.[1] The importance of the constitutional question prompted us to grant certiorari. 309 U.S. 649; 310 U.S. 623.

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This federal habeas corpus application involves the question whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge's failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.[1] The United States District Court held that he was not afforded a fair trial and granted the writ subject to the State's right to put Sheppard to trial again, 231 F. Supp. 37 (D. C. S. D. Ohio 1964). The Court of Appeals for the Sixth Circuit reversed by a divided vote, 346 F. 2d 707 (1965). We granted certiorari, 382 U. S. 916 (1965). We have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.

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The respondent State District Judge entered an order restraining the petitioners from publishing or broadcasting accounts of confessions or admissions made by the accused or facts "strongly implicative" of the accused in a widely reported murder of six persons. We granted certiorari to decide whether the entry of such an order on the showing made before the state court violated the constitutional guarantee of freedom of the press.

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A Nevada criminal defense attorney called a press conference after his client was indicted to maintain his client's innocence. He also indicated that the evidence would show that a police officer actually was guilty of the offense for which his client was charged. After his client was acquitted, the attorney was charged by the state bar association with violating Nevada Supreme Court Rule 177, which prohibits an attorney from making a statement to the press that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. A subsection of Rule 177 provides that an attorney may comment on general matters such as the nature of the defense. The Southern Nevada Disciplinary Board found that the attorney had violated Rule 177, and the Nevada Supreme Court affirmed that ruling. Speech critical of the government and its officials generally cannot be prohibited or punished absent a compelling governmental interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). On the other hand, the Court has held that the speech of attorneys participating in a particular case can be regulated if the regulation is necessary to further the ends of justice. Shepard v. Maxwell, 384 U.S. 333 (1966). In any event, a regulation of speech cannot be enforced if it is so vague that it forces the regulated party to guess as to the limits of the regulation. Grayned v. City of Rockford, 408 U.S. 104 (1972).

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