THOUGH CABLE News Network and Manuel Noriega reached an agreement yesterday not to escalate actions against each other pending a U.S. Supreme Court ruling, the network is -- and should be -- pursuing its challenge of a gag order barring it from broadcasting tapes of Gen. Noriega's telephone conversations from jail with his lawyers. Whatever effect CNN's news coverage might have on Gen. Noriega's trial on drug-trafficking charges, the 10-day injunction issued Friday by U.S. District Judge William Hoeveler in Miami and upheld by the 11th U.S. Circuit Court of Appeals the next day with an order to produce the seven tapes for court examination involves a fundamental issue: prior restraint, which should be found plainly unconstitutional.
Our interest in this case is as obvious as the reason for tossing out this gag order should be: the law of this land permits a court to prohibit dissemination of a news story, if at all, only in the direst of circumstances -- to protect, to use the Supreme Court's own example, a secret troop movement in time of war. There is nothing of that sort in this case. The audio tapes broadcast by CNN involved calls between Gen. Noriega and certain associates, including a discussion with a legal secretary translating for his defense team. The discussion concerned two witnesses who Gen. Noriega said might testify against him.
The general's primary lawyer, Frank Rubino, said he learned of the tapes last Wednesday night, when CNN told him that it had obtained seven recordings made by the Justice Department at the correctional center where Gen. Noriega is being held. A Justice official has said that reports the government "improperly taped telephone calls between Noriega and his counsel are false," noting that the general was informed he could properly make an unmonitored call to his counsel by notifying staff in advance. Be that as it may, CNN merely went ahead and did its job of covering the news.
The network did defy Judge Hoeveler's order by broadcasting some more of the material. CNN President Tom Johnson argued at the time that the network "has a right to air that content while we pursue an appeal." But under yesterday's agreement worked out in federal court, CNN must refrain from playing any more tapes of conversations between Gen. Noriega and his attorneys. In return, Gen. Noriega's defense delayed a request for contempt penalties of up to $300,000 per broadcast against the network; and Judge Hoeveler has delayed the order demanding that CNN hand over the tapes. CNN attorney Terry Bienstock said the networks still had the right to play other Noriega tapes not involving conversation with attorneys -- and the judge agreed.
CNN could have chosen not to defy the order and to wait for a ruling on the principle. But it chose not to accede to any precedent imposing even a temporary delay that in some other instance might have serious consequences for the news media and the public. That is what is at stake above all -- court-ordered prior restraint on speech, enforced until a higher court overturns it. CNN has kept the issue in proper narrow focus, determined for the resolution in its favor -- which the Constitution clearly protects.