Experts Weigh CNN-Noriega Tapes Case : Media: Critics question why the recordings were aired, leading to a court ruling allowing prior restraint. The network defends its actions.

When Cable News Network broadcast government-recorded tapes of conversations between deposed Panamanian leader Manuel A. Noriega and his lawyers, was the network taking a heroic stand for fair trials or was it inviting disaster to fall on press freedoms? That is the question journalists and attorneys are asking in the wake of the network’s broadcast of a tape recordings of Noriega’s phone calls with his attorneys.

One thing is sure: The broadcast resulted in the Supreme Court breaking with a 60-year pattern of shunning any order concerning prior restraint of the press.

On Sunday, the Supreme Court agreed that a Miami judge had the right to bar CNN from broadcasting government-recorded phone calls between Noriega and his lawyers in a drug-trafficking case, at least until the judge had reviewed the contents of the tapes.

Many have sharply criticized the Atlanta-based cable news organization’s handling of the Noriega tapes case. Some accuse CNN of angering the judiciary and prompting the anti-press decision.

CNN officials counter that much of what has been written about the case has misconstrued and obscured the importance of the principle involved.

“If a constitutional violation occurred it was because the government improperly taped Noriega and his lawyers, not because of CNN’s airing of that tape,” said CNN President Tom Johnson, who before granting interviews for this story had limited his remarks to a few written statements.

“If the U.S. government can wiretap phone conversations of Manuel Noriega talking with his attorneys, it can do so with any person held in detention,” Johnson added.

Some agree that at this point, at least, public focus should be on the broader principles involved.

“I think CNN is a very hard hero to have, but the point is we don’t need to champion them in order to fear the results of what the Supreme Court has done,” said Geneve Overholser, editor of the Des Moines Register and chairwoman of the American Society of Newspaper Editors Freedom of Information Committee.

Many continue to have serious doubts about whether CNN should ever have pressed this story as a free press issue.

For one thing, this is the first prior restraint case that involved possible press violation of the confidentiality of attorney-client conversations--something considered sacrosanct in the judiciary. Moreover, the press generally recognizes the special nature of attorney-client privilege.

“Why take such an unsympathetic issue as endangering a free trial and give the court the opportunity to say that even the aversion to prior restraint has exceptions?” asked Frederick Schauer, professor of 1st Amendment law at Harvard’s Kennedy School of Government.

That feeling seems stronger, some said, because there wasn’t anything particularly interesting or compelling on the tapes.

In the first story, Noriega’s conversation with an investigator and secretary from an attorney’s office was not even clearly audible over the air. In the second story, the same portion of tape was audible, but in it Noriega merely is heard saying he did not know anything about two witnesses that the prosecution was expected to call.

“I don’t think that CNN has been very wise in selecting this problem to test an issue of towering importance to journalism in this country,” said Marvin Kalb, executive director of the Shorenstein Barone Center on the Press, Politics and Public Diplomacy at Harvard.

Some also have charged CNN made a series of tactical blunders in handling the story--mistakes that challenged the power of the judiciary and may have caused the court to rule against it.

In particular, some press accounts have wondered why CNN notified the attorneys and the government in advance that it would be airing the tapes, thereby all but inviting the prior restraint.

And most important, critics in the press say CNN made a major mistake in broadcasting a second tape in apparent defiance of the Miami judge’s initial order. It should have waited for its appeal to wend its way through the judiciary, they argue.

CNN officials argue that most of these tactical criticisms again misrepresent the facts. What occurred, CNN officials say, was this:

On Nov. 6, after obtaining copies of tapes made by the government of Noriega and his defense team, “We went to Noriega’s attorney and to the government for comment before airing the story--not to defy the government (or invite prior restraint), but to give them a chance to respond,” CNN President Johnson explained.

The government refused to comment.

But Noriega’s attorney, Frank A. Rubino, did agree to listen to the tapes and to discuss their significance with CNN reporters. He then agreed to do so a second time on camera.

On the evening of Nov. 7, before CNN had aired its story, Rubino turned around and served CNN with papers seeking to enjoin it from airing any phone conversations containing privileged attorney-client communications.

Knowing the court would hear the motion the next morning, CNN then broadcast its first story about the tapes at 7 a.m. Nov. 8, before the court hearing. In that story, Rubino was on camera listening to a tape and discussing its significance. But the actual contents of Noriega’s conversation was not audible.

Later that morning, U.S. District Judge William M. Hoeveler in Miami granted a temporary restraining order barring CNN from playing any more tapes.

CNN officials say they felt trapped. On one side the attorney had consented to an interview in which he made charges about the government violating attorney-client privilege, and then appealed to the court to stop CNN from airing that.

On the other side, the government was arguing in court that it had not violated attorney-client privilege.

CNN pleaded with the U.S. Court of Appeals in Atlanta for an immediate hearing on Thursday, Nov. 8, and again on Friday. The court held the hearing on Saturday.

Johnson, former publisher of the Los Angeles Times who recently became head of CNN, said journalists and attorneys deliberated for two days over how to react. On Friday night, CNN decided to answer by airing a second story.

CNN officials contend that they did not violate attorney-client privilege. “It is our position that the privilege (on the segments that CNN aired) was waived at the time that Frank Rubino knowingly, voluntarily and openly replayed the tape on camera for the reporters and for the staff present,” Johnson said.

Unfortunately for CNN, at least some respected legal experts find their position shaky at best.

“That is one of the most absurd and tortured interpretations of attorney-client privilege possible,” said Charles Ogletree, director of the criminal justice institute at Harvard. “Rubino has no authority without his client’s consent to waive privilege, and even in some cases where the client has expressly consented to waive privilege there are often legal barriers that forbid the client from doing so.”

The 11th Circuit Court of Appeals in Atlanta also disagreed with CNN.