Justices back ban on airing Noriega tapes CNN loses appeal of 'prior restraint'

November 19, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court, taking one of the rarest actions within its power, temporarily blocked the Cable News Network yesterday from broadcasting recordings of ousted Panamanian strongman Manuel Noriega's telephone calls from prison.

At the same time, the court turned aside, without explanation, CNN's claim that its free press rights were violated by the temporary ban on the broadcasting of audiotapes of General Noriega talking by telephone with the legal team defending him against drug crime charges.

The ban on broadcasting is to be kept in force until a federal judge in Miami can decide whether to lift it or make it permanent. The dispute may return to the Supreme Court after the judge takes further action.

The Supreme Court voted 7-2 on its two-part order. The two dissenters, Justices Thurgood Marshall and Sandra Day O'Connor, argued that "this case is of extraordinary consequence for freedom of the press."

Not since 1976 has the court blocked a news organization from publishing information in its possession, and the court did so then only temporarily, before it had issued a broad ruling making it clear that the Constitution would almost never allow such pre-publication orders, technically called "prior restraints."

Floyd Abrams of New York City, one of CNN's lawyers in the case, said last night that the court's action "may be understood as having sent a signal to the lower courts" that the press may be temporarily blocked from publishing some kinds of news "on the basis of virtually no evidence at all."

If lower courts take such a hint and issue more such publication bans, Mr. Abrams said, then yesterday's actions "will be of serious significance."

But the Justice Department had told the Supreme Court on Saturday that no great issue of press freedom was at stake because CNN had been ordered to withhold broadcast of the tapes only for the time it would take a judge to consider what was on the tapes and then decide whether to keep the ban intact.

The court's order yesterday left CNN with only two options: Broadcast the tapes and risk being held in contempt of court, or else hand over the tapes to U.S. District Judge William M. Hoeveler or Miami for his review.

In Atlanta, CNN President Tom Johnson said the network would "turn over the tapes sought by Judge Hoeveler," who had first ordered CNN not to broadcast. Judge Hoeveler is also handling dTC the U.S. government's criminal case against Noriega.

Mr. Johnson said that the network was "confident that after he [Judge Hoeveler] reviews them, he will decide" to lift the ban on broadcasting. If the judge keeps the ban in effect, CNN vowed to fight that, too, in the Supreme Court, if necessary.

One of General Noriega's lawyers, Frank A. Rubino of Miami, had told the Supreme Court on Saturday that he was confident that Judge Hoeveler, after reviewing the audiotapes, "will find that the broadcast of General Noriega's [taped] conversations with his lawyers poses such a threat to his right to a fair trial as to justify" a permanent broadcasting ban.

Judge Hoeveler has not yet ruled that the tapes may not ever be broadcast. On Nov. 8 and 9, the judge ordered CNN temporarily to avoid broadcasting any tapes that involved the general's talking to his lawyers or their associates, and ordered the network to hand over the seven tapes so he could decide whether their release on the air would impair General Noriega's right to deal privately with his lawyer and his right to a fair trial.

The 11th U.S. Circuit Court of Appeals upheld those orders a week ago, but it implied then that CNN might not be free even to discuss the Noriega recordings on the air.

In agreeing yesterday to allow Judge Hoeveler's Nov. 8 and 9 orders to remain intact, the Supreme Court order mentioned only those specific orders, thus at least implying that it was not endorsing the broader interpretation by the Circuit Court.

For CNN, Mr. Abrams said he understood the Supreme Court to have acted only on the Hoeveler orders.

The unsigned Supreme Court order was supported by Chief Justice William H. Rehnquist and Justices Harry A. Blackmun, Anthony M. Kennedy, Antonin Scalia, David H. Souter, John Paul Stevens and Byron R. White.

Justice Marshall's dissent, joined by Justice O'Connor, complained that Judge Hoeveler had issued the temporary ban without any proof "that the information will indeed cause . . . harm and that suppression is the only means of averting it."

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