CNN Asks High Court to Let It Air Noriega Tapes : Judiciary: U.S. judge has barred broadcasting of ex-dictator’s talks with attorneys, but justices have never upheld such orders.

Lawyers for Cable News Network urged the Supreme Court on Thursday to lift a judge’s order blocking it from broadcasting taped talks between former Panamanian dictator Manuel A. Noriega and his attorneys.

The Supreme Court has never upheld an order barring the media from publishing or broadcasting news.

Last week, CNN disclosed that prison officials in Miami were routinely taping Noriega’s phone calls, including those to his attorneys. The story raised the possibility that Noriega’s right to a fair trial had been threatened if government officials heard how his lawyers were planning his defense.

But Noriega’s lawyers, joined by government prosecutors, moved to stop CNN’s airing of the tapes. They contended that broadcasting them could jeopardize a fair trial.

U.S. District Judge William Hoeveler, agreeing that such a threat existed, ordered CNN to halt the broadcasts and turn over the tapes so he could study them. CNN refused, and on Saturday a three-judge appeals court panel in Atlanta upheld Hoeveler’s order, a move that stunned 1st Amendment lawyers.

Suddenly, a story about possible government misconduct became a challenge to one of the Constitution’s best-established rules--that neither the government nor the courts may stop the media from reporting the news.

“The 1st Amendment simply does not permit the District Court to act as a censor and review in advance an upcoming telecast,” CNN lawyers said in a petition filed Thursday.

“Gagging CNN will neither cure nor avoid any breach by the prosecution,” they added. “It will serve only to punish a news medium which has faithfully executed its constitutional role by reporting on criminal proceedings and allegations of unlawful government action.”

In Atlanta, meanwhile, the FBI said Thursday that it had possession of tapes that were taken from a CNN reporter’s hotel room. An FBI spokesman said the tapes had been seized by hotel security personnel.

CNN issued a news release saying that the agents had taken “some confidential material accumulated by CNN in its investigation of government taping” in the Noriega case. According to the network, FBI agents did not have a search warrant allowing them to seize the material.

It was not immediately clear if the seized tapes were recordings of Noriega’s conversations with his attorneys.

In responding to briefs filed by the CNN attorneys, the high court told Noriega’s lawyers and the Justice Department to file responses by Saturday.

The Supreme Court could quickly overturn Hoeveler’s order or choose to schedule a full argument in the case. Or, it could turn down CNN’s request and let the lower court judge’s order stand.

If so, it would mark a clear breach in what has been an unbroken barrier.

No constitutional rights are absolute, and the Supreme Court almost never says “never” when asked whether a right can ever be breached. But the ban on “prior restraint” orders against the press has been as close to an absolute as exists.

In 1931, in Near vs. Minnesota, the court ruled unanimously that the government may not block in advance the publication of any news or information, unless grave and immediate harm would result. It cited as an example the disclosure of troop movements during war.

In 1976, the court considered whether a Nebraska judge might issue a “gag order” to prevent the press from disclosing that a defendant in a sensational murder trial had confessed. The judge said the news would prevent the accused from getting a fair trial.

Nonetheless, the high court unanimously struck down the judge’s order. “Prior restraints on speech and publication are the most serious and least tolerable infringement on 1st Amendment rights,” the court said in Nebraska Press Assn. vs. Judge Stuart.

Since then, judges on occasion have issued “gag orders,” but they have been routinely overturned by appellate courts.

In 1984, Judge Robert Takasugi in Los Angeles ordered CBS not to broadcast a surveillance tape of auto maker John Z. DeLorean allegedly taking part in a cocaine deal. But an appeals court in San Francisco overturned his order. DeLorean was later tried and acquitted.

In February, Judge Pamela Rymer in Los Angeles blocked the Northrop Corp. from running ads promoting its work as being high quality while the company faced criminal charges. But, the next day, an appeals court lifted the ban.

For two days in September, a New York judge blocked the publication of “By Way of Deception,” a book on the Israeli intelligence service. But that order was lifted by a New York appeals court.

The string of successes gave media lawyers reason to be confident before the CNN case.

“This is a classic case of prosecutorial wrongdoing that was leaked to the press. It happens all the time,” said Jane Kirtley, director of the Reporters Committee for Freedom of the Press. She described the appeals court action as “a truly outrageous decision.”

But Abbey Lowell, a criminal defense lawyer in Washington, praised Judge Hoeveler for trying to protect Noriega’s rights. “In the law, the attorney-client privilege is the most protected privilege of all. If CNN was about to expose conversations about defense strategy, that would destroy his right to a fair trial,” he said.

Lowell said that the Supreme Court may find the case a difficult one. “It squarely presents a clash between the 1st Amendment and the 6th Amendment,” which ensures the right to fair trial, he said.

In his first order, Judge Hoeveler told CNN to turn over the tapes so he could see if sensitive conversations would be disclosed. But the network went ahead and broadcast a brief, inaudible conversation between Noriega and a secretary of his lawyer.

Some lawyers believe that CNN’s refusal to comply with Hoeveler’s order explains its setback before the appellate judges in Atlanta.

“I think they (the judges) were ticked off,” one 1st Amendment lawyer said.

After losing in the appeals court, CNN told Judge Hoeveler it would not broadcast any other tapes until the Supreme Court had ruled on its appeal.

Times staff writer Lee May in Atlanta contributed to this story.