Cable News Network defied a federal court order yesterday and broadcast wiretapped telephone conversations involving deposed Panamanian leader Manuel Antonio Noriega and a member of his defense team, setting up a high-profile battle over prior restraint of the media.
The broadcast came less than two hours after U.S. District Judge William Hoeveler in Miami extended for 10 days his Thursday order barring CNN from using any portion of the tapes that could compromise Noriega's attorney-client privilege. Hoeveler warned that he might hold CNN executives in contempt of court and impose fines if they violated his ban.
Justice Department personnel apparently wiretapped calls that Noriega made from his Miami prison cell to his attorney and others. Hoeveler referred to "hundreds" of conversations involving several hours of tapes.
CNN President Tom Johnson said that the order amounted to "unconstitutional prior restraints" and that the station "has a right to air that content while we pursue an appeal in the U.S. Court of Appeals for the 11th Circuit in Atlanta."
But Hoeveler said in his opinion, "I cannot conceive that the law of prior restraint is so sacrosanct and so encompassing that there can be no fact situation which would justify enjoining publication of communications between attorney and client."
The judge said he could not make a final ruling on the tapes obtained by CNN without listening to them, but he stayed an order directing the network to turn over the tapes.
CNN gave Hoeveler a list of taped conversations that it has obtained. But Johnson said the network "will resist fully, within the law, the court's order to produce unpublished materials."
The audio tapes broadcast by CNN yesterday, involving calls between Noriega and unidentified associates, included a discussion with a legal secretary translating for Noriega's defense team. The discussion concerned two witnesses who Noriega said might testify against him.
Floyd Abrams, a First Amendment specialist in New York, said that the prior restraint was "plainly unconstitutional" and that it was "almost inconceivable" that Hoeveler's order would be upheld on appeal. But he said that "the party violating the order can be held under contempt, even if the order is found to be unconstitutional."
Abrams said Noriega's right to a fair trial theoretically could outweigh CNN's First Amendment claim, but he noted that juries have been picked successfully in Watergate cases and other highly publicized criminal cases involving disclosure of taped evidence.
A half-dozen prior-restraint orders have been issued this year, including one blocking publication of a book by a former Israeli intelligence agent. Higher courts quickly overturned all of them.
The Justice Department takes no position on the dispute over the tapes, according to spokesman Dan Eramian.
CNN attorney Terry Bienstock argued in court that the network should be allowed to air the tapes since its broadcast Thursday placed them in the public domain. "The court has turned the First Amendment on its head," he said.
Noriega's chief lawyer, Frank Rubino, charged that the State Department provided copies of the tapes to a high-ranking official of the Panamanian government, which he said leaked them to CNN. Rubino said it was "unheard of" for the department to obtain tapes of attorney-client conversations.
However, a senior State Department official, speaking anonymously, said the department never had the tapes and could not have provided them to the Panamanian government.
Portions broadcast Thursday included a call between Noriega and the Cuban Embassy in Panama in which he said he would implicate President Bush and the Central Intelligence Agency as part of his defense.
The Supreme Court, in a 1976 case involving a Nebraska press group, called prior restraint the "most serious and the least tolerable infringement on First Amendment rights."
Noriega is charged with taking $4.6 million in bribes from Colombia's Medellin cartel to protect cocaine-smuggling operations through Panama.
Special correspondent Jon Leinwand in Miami contributed to this report.