Despite CNN's folly

Anthony Lewis

November 19, 1990|By Anthony Lewis

THE MOST BASIC premise of American freedom of the press is that editors do not have to persuade a judge to let them print or broadcast a story. Freedom from prior restraint -- from judicial orders against publication -- is a crucial difference from a country as generally free as Britain, where court orders often silence the press.

That vital premise is now under threat. Two federal courts have imposed prior restraints that, if sustained, would invite judges into the business of editing. And a press organization, the Cable News Network, has inexplicably made the threat worse by provocative and lawless behavior.

CNN obtained audio tapes of conversations between Gen. Manuel Noriega, the former Panama leader now in a federal prison in Florida awaiting trial on drug charges, and people said to be working for his lawyers. The fact that tapes had been made was significant news, raising the possibility that prison officials had compromised Noriega's right to confidentiality in preparing his defense.

When CNN broadcast one of the tapes, Noriega's lawyers asked the federal district court to prohibit any more broadcasts of attorney-client conversations. Judge William M. Hoeveler issued the order, saying that playing the tapes might make it harder to select an impartial jury and might make the prosecution aware of defense strategies.

CNN took the case to the U.S. Court of Appeals for the 11th TTC Circuit. While the case was pending there, CNN broadcast a second tape -- in violation of Hoeveler's order. The court of appeals then upheld the prior restraint. Now the Supreme Court has been asked to review that decision and set aside the restraint.

There are two separate issues in the case: the court order to CNN not to broadcast, and CNN's violation of that order. The issues are quite distinct. If the American press has any sense, it will do its best to keep them distinct.

To put it plainly, CNN's decision to violate the court order has put all of the press in jeopardy. It runs the risk of inflaming judges against an arrogant press. Judges understandably worry when their orders are ignored. So should we all.

American freedom depends to a significant extent on judges. If their orders can be ignored, we are less safe. The point was not hard to understand when Southern sheriffs and governors tried to resist school desegregation orders in the 1950s and 60s. The press should really be able to understand it today.

There may be occasions when a newspaper or broadcaster feels obliged to violate a court order for reasons of conscience or civil disobedience -- if an errant judge, say, tried unlawfully to stop publication of a critical story just before an election. But there was no such urgency in CNN's situation. For it to appeal a court order and then ignore it was to insult the courts.

The answer to such behavior is a fine for contempt of court. CNN's lawyer was quoted as saying he thought there would be no contempt if the prior restraint was eventually reversed. The precedents say he was wrong -- and should be. The way to challenge Hoeveler's order was by appealing it.

But the contempt issue, which is not before the Supreme Court, should not cloud the question of the restraining order. Supreme Court decisions indicate that there was no basis for that order.

In 1976, in Nebraska Press Association vs. Stuart, the Supreme Court rejected a plea to stop publication of an alleged murderer's confession before trial. It was a case where prejudice to a future jury was a real possibility: multiple necrophilic murders in a small town. But Chief Justice Burger rejected a prior restraint on those facts.

The claim of jury prejudice in the Noriega case is feeble by comparison. CNN broadcasts of the tapes could add no more than a feather's weight to the negative image of Noriega already imprinted on Americans. President Bush has called him a "thug" and "narco-terrorist," and after all Bush started a war to capture him.

As for the claim that prosecutors have not heard the tapes and might hear them on CNN, the short answer is that they should not listen. The independent counsel's office in the Iran-contra affair had prosecutors who shut themselves off from Oliver North's highly publicized testimony.

What makes this case so worrying for the press is that the argument for a prior restraint was so weak. Time and distance should enable the Supreme Court to separate the contempt question and reject this effort to give prior restraint a new role in American law.

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