CABLE NEWS Network has now been freed to broadcast, if it wants, the tapes it has of telephone conversations by former Panamanian dictator Manuel Noriega from prison. The judge in Gen. Noriega's criminal trial, having barred such broadcasts until he could review the tapes, says there's nothing in them that could prejudice the proceedings. Once again prior restraint has been shown to be a doubly bad idea. As a matter of principle, except perhaps in the most extreme of cases involving national security, no arm of government including the courts should have the right to decide in our system what news can or cannot be printed or broadcast -- the more so when, as here, an arm of government is also the subject of the broadcast. That's the first consideration; a second is that publication almost never comes even close to doing the harm that the would-be restrainers claim it will. Little if anything is ever gained by restraining publication, and much is lost.
The courts have understood this; the rule has been that prior restraint should almost never be imposed. A small hole may have been made in that good rule in this case, in that a restraining order was temporarily upheld on appeal. You can argue that some of that was due to clumsiness, that CNN, foreseeing the possibility of such an order, should have broadcast all it wanted from the tapes before the matter got to court. Then it would presumably have had no incentive to do a second broadcast in defiance of the trial judge's order, and the clash over prior restraint -- there were conflicting constitutional values at stake in this case -- could have been avoided.
But all that's spilt milk -- and the focus now returns to precisely the spot where CNN's reporting sought to fix it in the first place: How did prison authorities come to tape even one presumably privileged conversation between Gen. Noriega and a member of his defense team, and by what right and to whom were the contents of that and how many other taped conversations then distributed? We know that at least some transcripts found their way to the authorities in Panama. The U.S. government's response to all questions so far has been a kind of stonewall; it simply insists that it did nothing wrong. But we are told the Noriega taping has been expensive. What did the government do? To how many prisoners does it do it? What limits does it impose on itself? Are they the right ones? How often and in what circumstances are they breached, were they breached in this case, and if so, on whose authority and why? The entire issue in this case has been to protect the right of a prisoner to a fair trial. That's what the prior restraint was about, but that's what the underlying journalism was about, too. Let's hear the answers.