U.S. Urges Court to Block Broadcast of Noriega Tapes

The Bush Administration, advocating a sharp revision in 1st Amendment law, urged the Supreme Court on Saturday to allow a judge to listen to taped phone calls made by deposed Panamanian dictator Manuel A. Noriega before they can be broadcast by Cable News Network.

While the press has a right to freely disseminate news and information, the “rule of law” allows a judge in some instances to “temporarily bar” a publication or broadcast to study its content, Solicitor General Kenneth W. Starr stated in briefs filed with the high court.

“The 1st Amendment is part of the rule of law, not above it,” said Starr, the government’s top courtroom lawyer, in urging the court to prevent CNN from broadcasting the tapes and perhaps undermining the government’s drug-trafficking case against Noriega.

The brief filed by Starr, whose views usually carry considerable weight with the Supreme Court, appeared to escalate the stakes in a fast-developing battle between the courts and the press.

If Starr’s position is adopted by the court, it will significantly alter the law on “prior restraints” or “gag orders.” Judges frequently are asked to block publication of a book or news article or bar a planned broadcast because of the potential harm it could cause and on occasion judges issue such orders. But in its 200-year history, the Supreme Court has never upheld a “prior restraint” order.

News and information can be blocked from publication only for “extraordinary” reasons, such as the need to preserve secrecy during wartime, the court has said.

In September, a New York judge blocked publication of a new book, “By Way of Deception,” because of its potential harm to the Israeli intelligence service. In 1984, a federal judge in Los Angeles blocked CBS from broadcasting a tape showing auto maker John Z. DeLorean taking part in an alleged cocaine deal because his trial was pending.

But within hours, those orders were reversed by higher courts because “prior restraints” on the press have been understood to be unconstitutional.

Starr and the Justice Department, however, said a “temporary” order is not unconstitutional.

“It is certainly true that, under the 1st Amendment, a lasting prior restraint on publication may be justified only in the most extraordinary circumstances,” Starr said. “But the rule of law requires permitting a court to determine if those circumstances exist.”

On Nov. 7, CNN revealed that prison officials in Miami had been taping the phone calls of their prize prisoner, the dictator who was deposed when U.S. troops invaded Panama last December.

Included in the calls, CNN said, were conversations between Noriega and his attorney about the federal drug-trafficking case against him.

Both CNN and Noriega’s attorneys said the tapes could threaten the government’s effort to convict Noriega. The lawyers said the tapes violated the attorney-client privilege and could reveal how they were planning their client’s defense.

But rather than challenge the government for having taped the conversations, Noriega’s attorneys instead sought to block CNN from broadcasting the tapes.

In response, Judge William M. Hoeveler ordered CNN to turn over the tapes so he could see if they threatened Noriega’s right to a fair trial.

Prison officials also had copies of the tapes. But rather than force officials to scan the reams of recorded conversations, Hoeveler said a “more efficient alternative” would be to have CNN turn over its copies. He added that he needed up to 10 days to study them. In the interim, he barred CNN from further broadcasts of the tapes.

The network refused to comply with the order and appealed the issue to the Supreme Court. The case now sits on the court’s docket as Cable News Network vs. Gen. Manuel Noriega and the United States.

In previous rulings, the Supreme Court has opposed any efforts to impose prior restraints on new reports and broadcasts.

In 1971, the Richard M. Nixon Administration sought to block publication of the Pentagon Papers on national security grounds, but the Supreme Court refused to do so.

Relying on these precedents, CNN lawyers asked the justices to throw out Hoeveler’s order. The Constitution does not permit him to act as a “censor” for what news is aired, they said.

Last week, CNN was joined by a coalition of media groups, including the American Society of Newspaper Editors, the National Assn. of Broadcasters and the Reporters Committee for Freedom of the Press, in appealing Hoeveler’s order.

The American Civil Liberties Union joined the fray Saturday with a friend of the court brief. If Hoeveler’s ban on CNN is upheld, “60 years of carefully crafted jurisprudence of this court will be eroded and our system of free expression severely wounded,” ACLU lawyers said.

But Starr and the other Justice Department attorneys denounced what they said was “an extreme vision of the 1st Amendment” held by the news media that gives editors and broadcasters the sole right to be the first to decide what gets published or aired. Starr said that, in extraordinary cases, judges must decide first.

The rule of law cannot operate, he said, if the “right to publish prevails no matter what might be on the tapes and no matter what the effect of publication might be.”

In the 20-page brief, the Justice Department said the Noriega case is different from other recent “prior restraint” cases because the judge does not know exactly what was discussed in the tape-recorded prison phone calls.

In the 1976 case of Nebraska Press Assn. vs. Stuart, the Supreme Court ruled unanimously that a judge in a small Nebraska town could not block the news that an accused killer had actually confessed to the murders, even if such a revelation might make it hard to find an unbiased jury.

But in that case, the judge knew what was about to be printed and broadcast, Starr said. Since Judge Hoeveler does not know what is on the CNN tapes, he should be permitted to “temporarily bar” their broadcast, he concluded.