The dispute over Cable News Network's broadcast of taped telephone conversations by deposed Panamanian leader Manuel Antonio Noriega represents the collision of two fundamental legal principles: the strong presumption against prior restraints of the press and the almost sacrosanct nature of the attorney-client relationship.
The case is now headed for the Supreme Court, following a ruling Saturday by the federal appeals court in Atlanta that upheld a Miami trial court's 10-day injunction against further broadcast of Noriega's conversations with members of his legal team.
The appeals court also ordered the network to turn over copies of the tapes to the district judge so he could determine whether broadcast would interfere with Noriega's right to a fair trial. CNN said it would seek review by the high court.
Noriega is in jail in Miami awaiting trial on charges of taking $4.6 million in payoffs from Colombia's Medellin cartel to protect cocaine-smuggling operations through Panama. CNN obtained at least seven recordings of telephone calls made by Noriega from prison and taped by officials there.
The government has said Noriega knew that inmates' calls
are routinely monitored and was told that he could notify staff members in advance if he wanted to make unscreened calls to his lawyers.
The rule against prior restraints has long been viewed as a bedrock component of the First Amendment's guarantee of freedom of the press.
In 1976, in Nebraska Press Association v. Stuart, the Supreme Court struck down a "gag order" that barred pretrial reporting of confessions and other incriminating statements by a defendant in a widely publicized mass murder in order to protect his right to an impartial jury.
The court, in an opinion by then-Chief Justice Warren E. Burger, said there was no doubt about "the gravity of the evil pretrial publicity can work." But Burger said the risk "it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require" and noted there were other alternatives to guard against harm,
such as a change of venue and
careful questioning of potential jurors.
The Noriega case, however, adds a new wrinkle to the overall problem of prejudicial publicity: the threat of violation of the attorney-client privilege and the resulting interference with Noriega's Sixth Amendment right to effective assistance of counsel.
Whether the tapes pose such a risk remains murky. On Friday night, CNN broadcast a conversation between Noriega and a secretary for one of his lawyers. The secretary, serving as a translator, asks Noriega, on behalf of an investigator for the defense team, about two men recently arrested in Panama.
The degree to which that conversation or others on the tapes in CNN's posession could reveal Noriega's legal strategy and compromise his ability to present a defense in court will be one of the major issues as the case proceeds.
The 11th U.S. Circuit Court of Appeals complained in its opinion that CNN's refusal to turn over copies of the tapes had "shackled" the trial judge's ability to balance the rights of fair trial and free press.
Terry Bienstock, a lawyer for CNN, said in an interview yesterday that network officials believe that being forced to turn over the tapes -- or even a list of what conversations are involved -- would itself violate CNN's constitutional rights.
Under the court order, he said, "We have -- prior to publication -- to justify what we're going to publish. That's like you sending this article you're writing to the judge."
He said the court could obtain copies of the recordings from the government. But the Justice Department, supporting the request by Noriega's lawyers for an order prohibiting broadcast, said it did not know what material the network has.
Another issue in the Noriega case will be whether the network should be held in contempt of court, as Noriega's attorneys have demanded, for broadcasting the conversation between Noriega and the legal secretary. Neither that nor other conversations have been aired since the appeals court ruling.
Bienstock said the network takes the position that it did not violate the Miami trial judge's order because "what was broadcast in our opinion was not a privileged communication."
But he said the network had the right to violate what it viewed as a plainly unconstitutional court order. He cited a 1986 appeals court ruling that overturned a contempt citation and $100,000 fine against the Providence (R.I.) Journal for violating a court order.
In that case, the appeals court said the prior restraint was "transparently invalid." However, it later modified that ruling to require a "good faith" effort to obtain emergency relief on appeal, and news media lawyers said yesterday that the attorney-client privilege issue puts CNN in a difficult position in arguing that the Noriega order was clearly invalid.
The ultimate question of whether the tapes could result in a dismissal of the Noriega prosecution, as defense lawyers have said they will demand, will likely depend on whether the government's recording of Noriega's calls to his lawyers' office was deliberate or inadvertent.
"My guess would be that if it was a minimal intrusion or if it were done inadvertently, it would be very hard for the defense to succeed unless the content of the conversation was so prejudicial that it would just undermine their ability to defend him," said Paul L. Friedman, a Washington lawyer who does criminal defense work and represented the author of a Progressive magazine article on the hydrogen bomb in a 1979 prior restraint case.