WHILE IT is not at all the last word on the constitutional protection against prior restraint -- freedom of the press from judicial orders prohibiting publication or broadcast of a story -- the Supreme Court's initial reaction to the Cable News Network/Noriega tape case is deeply troubling for what it may invite in the way of future lower court gag orders. With two justices dissenting, the court refused to lift a federal district judge's order temporarily barring CNN from televising audio-taped telephone conversations between Gen. Noriega in jail and his legal defense team. This is not a ruling on the merits of the dispute between CNN and Gen. Noriega but is a discouraging response in that it fails to nip the issue in the bud. Instead, as lawyer Floyd Abrams, representing CNN, noted, the ruling "may be taken by trial judges as a signal of a diminution of the standards to be applied" in deciding to issue a temporary restraint of the sort ordered by U.S. District Court Judge William Hoeveler.
At this point, the case goes back to federal court in Miami, where Judge Hoeveler has ordered CNN not to broadcast the tapes until he can examine them to determine whether such broadcast might jeopardize Gen. Noriega's right to a fair trial on drug-trafficking charges. CNN has responded that it would turn over the tapes to the judge. The judge then could lift the restraining order after examining the tapes, which apparently were made by federal prison authorities in Miami, where Gen. Noriega is being held. If Judge Hoeveler were to agree with Gen. Noriega, CNN would be free to appeal to a federal appeals court and, if necessary, to the Supreme Court.
Our formal and professional interest in this case is with CNN and is rooted in the First Amendment, on which the Supreme Court has based a history of decisions denying prior restraint. While that is what is at stake, the latest ruling does, as media lawyers have noted, represent a departure from the traditional balance in which a heavy burden was on those seeking gag orders to justify their requests. In a prior case, the court has ruled that even the threat to a fair trial represented by reports of a murder confession on the eve of trial in a small town was not enough to justify a gag on the press. But the court's failure to act in the CNN matter could now be interpreted as forcing the media to justify to courts why they must be permitted to publish or broadcast news; the court may be opening its doors to a rash of unnecessary press-court confrontations.
CNN did defy the judge's order by broadcasting some material after the order's issuance, arguing that it had a right to air the material while pursuing an appeal of a clearly invalid order. That argument may prevail, but it is a risky and provocative approach -- a defiance that judges don't appreciate and may simply find arrogant -- especially involving a news story of no critical urgency.
But CNN's decision to violate the order is one separate issue, the court's gag order quite another. The Supreme Court surely knows that it should not let the gag order stand. Prior restraints have no place in this republic -- and the court should have dealt immediately with this issue on its most absolute merits: There was no basis for the order, and there should be no confusion in the minds of lower court judges, no matter how offended they may be by other actions surrounding the case.