In the 1983 case of Capital Cities Media, Inc., TDBA The Wilkes-Barre Times Leader, et al. v. Toole, Judge, Court of Common Pleas of Luzerne County, the U.S Supreme Court was asked to consider whether a Pennsylvania court order prohibiting media from reporting on certain aspects of a criminal trial violated the First Amendment's guarantee of freedom of press. The lower court had issued an order barring news organizations from publishing or broadcasting information about confessions made by defendants in a murder trial until after jury selection was complete. This decision came as part of an effort to ensure that potential jurors were not influenced by pretrial publicity and could remain impartial during proceedings. However, several media outlets challenged this ruling arguing it infringed upon their constitutional rights under the First Amendment which protects free speech and press freedoms.

In the dissenting opinion for Capital Cities Media, Inc. v. Toole, Justice Brennan disagreed with the majority's decision to deny review of a Pennsylvania Supreme Court ruling that upheld a judge's order prohibiting media from reporting on certain aspects of an ongoing criminal trial. He argued that such gag orders are presumptively unconstitutional and should be subject to strict scrutiny under the First Amendment because they infringe upon freedom of speech and press rights. Furthermore, he contended that there was no compelling state interest justifying this infringement in this case as alternative measures could have been used to ensure fair trial proceedings without suppressing free speech rights (e.g., change of venue or jury sequestration). Therefore, he believed it was necessary for the U.S Supreme Court to intervene in order to protect these fundamental constitutional liberties against unwarranted judicial censorship.