Justices Refuse to Allow Airing of Noriega Tapes : Media: The action against Cable News Network may signal a new willingness to limit press freedom.


In a decision that may signal new willingness to limit press freedom, the Supreme Court on Sunday refused to allow Cable News Network to broadcast government-recorded phone calls between deposed Panamanian dictator Manuel A. Noriega and his lawyers.

The high court on a 7-2 vote let stand an order by a judge in Miami requiring CNN to turn over the tapes to him for his examination.

The Supreme Court has never formally upheld an order barring the publication or broadcast of news and information.

Sunday’s action by the high court is not a ruling on the issue, but rather a refusal to lift a temporary ban issued Nov. 8 by Judge William M. Hoeveler. After CNN complies with Hoeveler’s order, the justices could later hear a formal appeal and issue a written ruling.

Nonetheless, the court’s decision Sunday marked a sharp departure from how “prior restraint” orders had been treated before. For nearly 60 years, the court had characterized as “presumptively unconstitutional” any order blocking a publication.


Press attorneys and CNN officials said they were “stunned” by the court’s action and said it amounted to “censorship” of a news organization.

In his order, Hoeveler said he was not imposing a “prior restraint” on CNN because the broadcast ban was only temporary and intended only to give him a chance to decide whether a permanent ban was needed. The Justice Department took the same view in briefs filed Saturday, arguing that a “temporary” ban on publication is not a “prior restraint.”

The Supreme Court issued only a brief order Sunday and did not explain the reasons for its decision. However, if the justices now accept the view that a “temporary” ban is not a “prior restraint,” it could have a far-reaching impact on the news media, television broadcasters and book publishers.

Under this view, the subject of an unfavorable news story, TV program or book could seek a judge’s order to block its publication or broadcast until the contents were turned over to the court for examination.

Until now, it has been assumed by 1st Amendment lawyers that such court orders, even if “temporary,” are unconstitutional restrictions on the freedom of the press.

“The fact that the court would be willing to tolerate a prior restraint in these circumstances signals a new era in 1st Amendment jurisprudence,” said Jane Kirtley, executive director of the Reporters’ Committee for Freedom of the Press. “It will have a far-reaching impact going beyond this case extending to many cases in state and federal courts around the country.”

Justice Thurgood Marshall, who dissented Sunday along with Justice Sandra Day O’Connor, called the CNN case one of “extraordinary consequence for freedom of the press.” He called the ban that was left intact Sunday a “drastic remedy” not justified by any potential harm from the broadcast of Noriega’s phone calls from prison.

“The issue raised by this petition,” Marshall wrote, “is whether a trial court may enjoin publication of information alleged to threaten a criminal defendant’s right to a fair trial without any threshold showing that the information will indeed cause such harm and that suppression is the only means of averting it.”

Voting against CNN were Chief Justice William H. Rehnquist and Justices Byron R. White, Harry A. Blackmun, John Paul Stevens, Antonin Scalia, Anthony M. Kennedy and David H. Souter, the court’s newest member.

CNN President Tom Johnson called the court’s decision “a loss of a battle in a continuing war against censorship.”

Johnson said in a statement that the network would immediately turn the tapes in its possession over to Hoeveler. He said CNN is “confident that after he reviews them he will decide on the merits to deny the prior restraint.

“CNN is committed to establishing its full freedom to telecast newsworthy information to the American people and it will pursue this case vigorously in order to do so,” Johnson added.

Noriega, who is awaiting trial on drug-dealing and money-laundering charges, is being held in a federal prison near Miami. Federal prison authorities monitor and tape record all inmates’ telephone conversations--except those between inmates and their attorneys.

But the CNN tape recordings reportedly contain some conversations between Noriega and his defense lawyers. CNN began airing the tapes last weekend, but the federal judge slapped an order on the network barring further broadcasts until he had heard them.

The network refused to comply with Hoeveler’s order and appealed the question to the Supreme Court.

Noriega’s defense attorney, Jon May, said Sunday that CNN had opened a “Pandora’s box. This is a case of the messenger shooting itself. To whatever extent the media may complain this is a significant adverse decision, CNN has only itself to blame.”

Solicitor General Kenneth W. Starr, who argued the government’s case, said in papers filed Saturday that while the press has a right to freely disseminate news, the “rule of law” allows a judge in some rare instances to temporarily preempt publication.

He argued that the 1st Amendment does not supersede other laws and did not in this case provide sufficient cause for undermining the government’s high-visibility drug-trafficking case against Noriega.

Starr acknowledged that extended prior restraint may be justified “only in the most extraordinary circumstances.” But, he added, the rule of law demands that a judge determine whether the current case meets those criteria.

“I think this means a fairly important change in the law, definitely a retrenchment from what they said in the Pentagon Papers case,” said Georgetown University law professor Louis M. Seidman. “After all, the government in that case was asking for more time to study what is in the papers. I think you’ll see more judges issuing gag orders now.”

In 1971, the Supreme Court ruled 6 to 3 that the Richard M. Nixon Administration could not block the New York Times and the Washington Post from printing the Defense Department’s secret history of the Vietnam War.

University of Colorado Law Dean Gene Nichol, a 1st Amendment expert, noted that Sunday’s decision shows the loss of Justice William J. Brennan Jr., a staunch free speech advocate who retired in July.

“The court that decided the Pentagon Papers case would not have done this,” Nichol said.

Until now, prior restraints have been considered permissible only in the most extreme cases, such as to preserve military security during wartime.

“Our precedents make unmistakably clear that any prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity and that the proponent of this drastic remedy carries a heavy burden of showing justification of its imposition,” Marshall wrote in his dissent, quoting from earlier cases.

“I do not see how the prior restraint imposed in this case can be reconciled with these teachings,” he said.