They Got the Wrong Guy : Government, not CNN, is hurting Noriega trial

Cable News Network will ask the U.S. Supreme Court to overturn a lower court’s order banning it from airing taped telephone conversations between deposed Panamanian dictator Manuel Noriega and his legal defense team. CNN argues, correctly, that any attempt to prohibit it from airing the tapes that have come into its possession is a prior restraint on its constitutional freedom to gather and disseminate news. That freedom embodies a principle so vital to safeguarding individual liberties and so basic to bolstering democratic processes that the high court should not--cannot--have any problem in crushing this effort at censorship.

The storm over the Noriega tapes is seen by some as a fundamental clash between equally imperative constitutional rights. On one side is the First Amendment’s guarantee of a press unfettered by governmental efforts to dictate what may be reported. On the other side is the Sixth Amendment’s assurance that anyone accused of a crime must have a fair trial. Two rights, each of consummate importance. But are they truly in conflict here? No, because in broadcasting a government-made recording of a telephone conversation between Noriega and an employee in his lawyer’s office, CNN did nothing to undercut his right to an impartial trial.

It acted instead, faithful to the highest standards of selfless journalism, to protect that right. For if Noriega’s defense has in any way been compromised because his telephone calls were improperly taped, then clearly it is the government that recorded those calls that should be called to account. It is not CNN, which has acted only as the instrument for exposing possible governmental misconduct.

The Bureau of Prisons, which operates the federal facility near Miami where Noriega is being held, informs prisoners that their telephone calls may be taped. Noriega was so warned and signed a paper last January acknowledging that he understood the policy. But not all calls are routinely taped. To protect the confidentiality of lawyer-client relations, conversations on legal business are not to be monitored. A prisoner need only notify authorities if his requested phone call involves legal business. At that point the taping system is supposed to be turned off.

CNN and Noriega’s lawyers have now agreed that the network will refrain from broadcasting any more tapes until the Supreme Court rules on CNN’s appeal. So far it has played one of the seven tapes it has on the air, in defiance of a restraining order and at the risk of being held in contempt.

Now the issue is about to go to the Supreme Court. Never before in the nation’s history, says noted First Amendment lawyer Floyd Abrams, has the court affirmed a lower court attempt to censor beforehand what a news organization may report. It would be astonishing if it were to do so here.

CNN has done nothing to jeopardize a fair trial for Noriega. It has revealed activities by the government that in themselves may put the guarantee of a fair trial at risk. Exposing those activities isn’t a crime, but a public service.