The Noriega Tapes (Cont'd.)

November 20, 1990

For at least 60 years the Supreme Court has said that only in the most extraordinary circumstances (such as troop movements) could a court prevent journalists from reporting the news. Now the Supreme Court has sent a strong message that this can be done for a brief period, perhaps almost as a matter of routine, and it has implied that it can be done for a long period, perhaps permanently, in cases that while not routine are far short of extraordinary.

The court did this Sunday by voting 7-2 to require Cable News Network to obey an order from a trial judge in Miami forbidding it to broadcast tapes made of Gen. Manuel Noriega's phone calls from prison, including some to members of his legal defense team, until the judge had listened to them to determine if publicizing them would interfere with the general's right to a fair trial.

We believe General Noriega and every other individual accused of a crime deserves a fair trial, but we also believe every American is served by having the courts respect the First Amendment's guarantee of a free press. No press is free if government officials, including judges, can oversee the editorial decision-making process.

Punishing journalists for publishing irresponsibly is one thing. There are laws of libel, copyright and espionage to deal with that. Preventing publication -- so-called prior restraint -- is quite another. This is censorship.

The judge in Miami and Justice Department lawyers have said that since the order not to broadcast was only temporary, there was no such prior restraint. We disagree. There is no such thing as a little censorship. Even assuming there was no need in this case for CNN to rush the tapes on the air, often timeliness is everything in the news. If the public doesn't get news when it is news, it may not be served by it. That is why the argument that temporary restraining orders are not prior restraint is so alarming.

The court's 7-2 vote was not accompanied by opinions. If the trial judge continues his ban after inspecting the tapes, the issue will come back to the Supreme Court. The court should then (1) return to precedent and overturn the ban, and (2) state in unmistakable language that its upholding of the temporary ban was a very unusual departure because of the very unusual nature of the case. It should state unequivocally that its decision must not be taken as an open invitation to judges to issue temporary prior restraint orders.

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