The Noriega Tapes

November 13, 1990

Cable News Network did the prudent thing in agreeing not to broadcast again tapes of Gen. Manuel Noriega talking to his lawyers' office until the issue of CNN's right to do so has been settled by the Supreme Court. The Supreme Court must act soon. Even press critics who believe CNN was wrong to broadcast the tape know in their hearts that a greater wrong was the issuance by Judge William Hoeveler in Miami of an order forbidding it to broadcast. That order must be vacated.

We have no doubt it will be. It is widely understood by legal scholars specializing in free speech issues and by jurists that only in extreme cases -- reporting troop or ship movements in wartime, for example -- is prior restraint permissible. As the Supreme Court said in a newspaper case 15 years ago, that interpretation of the First Amendment's freedom of speech and press guarantees has been implicit for the nation's entire history and explicit since early in this century.

General Noriega's lawyers asked that CNN be restrained. They said the publicity compromised his ability to get a fair trial, as guaranteed by the Sixth Amendment. They're barking up the wrong tree. The broadcasters are not the real threats to his receiving a fair trial. Potential jurors exposed to the tapes could still render a fair judgment on General Noriega in a courtroom. We have seen time and again that pre-trial publicity has simply not prejudiced jurors against a defendant. Most recently and most noticeably there have been the cases of Oliver North and Marion Barry, who were acquitted on most charges. (Jurors also have proven resistant to other forms of censorship, as in the Mapplethorpe and 2 Live Crew cases.)

The real culprits in this case are the federal officials who taped the calls. The fact that this was done at all is almost certainly a violation of the Sixth Amendment guarantee to a defendant of TTC the right to counsel. Perhaps -- just perhaps -- if the taping was an inadvertence, and if the taped information or any fruits of it obtained by the Bureau of Prisons, which has the general in custody, was never made available, directly or indirectly, to the Justice Department, which is prosecuting him, then his right to counsel may not have been compromised. Those are big "ifs."

That is what Judge Hoeveler ought to be trying to ascertain, instead of engaging in censorship. He might have to throw out the indictment because of the tapes -- not because of what CNN did with them, but because they existed in the first place.

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