A broad coalition of media organizations is rallying behind Cable News Network's effort to air telephone conversations by deposed Panamanian leader Manuel Antonio Noriega, prompted by concern over the first federal appeals court ruling upholding a prior restraint on publication since the 1971 battle over the Pentagon Papers.
Two friend-of-the-court briefs -- one on behalf of some of the country's leading newspapers, including The Washington Post, the other by several networks and press groups -- will be filed when Cable News Network petitions the Supreme Court, perhaps as early as today, to overturn the order blocking it from broadcasting taped conversations between Noriega and his defense team.
The briefs, said Jane Kirtley of the Reporters Committee for Freedom of the Press, are designed "to underscore the fact that the news media at large recognize the tremendous potential impact of a sweeping gag order like this . . . to express solidarity and concern . . . that this is not something that just affects CNN but something that potentially affects everyone."
At the same time, however, some press observers questioned the news value of the tapes of Noriega's conversations from the Miami jail at which he is being held. Media lawyers expressed qualms about whether CNN's conduct in connection with the case could harm its position. CNN refused to give the trial judge access to the tapes it has, defied the court's order against broadcast, and waited several days before seeking high court review.
Stephen Hess, a senior analyst at the Brookings Institution, said the content of the tapes was "not much of a story." But he said they had brought CNN "a type of respectability. . . . By broadcasting some guy's tapes when a court told you not to, it shows you've got guts just like the New York Times and The Washington Post with the Pentagon Papers. They get their very own Pentagon Papers on the cheap."
Bill Kovach, curator of the Nieman Foundation at Harvard University, said the newsworthiness of the tapes is in their existence and questioned why CNN did not broadcast them immediately, rather than giving Noriega's lawyers time to obtian the court order that is the issue in the case.
Ed Turner, CNN's executive vice president for news, said that "there was no thought in our mind to do it for publicity reasons or do it so you'll get sued and someone will take you to federal court. The decision was made purely for journalistic and production reasons.
"The most significant part of the story was that the tapes existed. The lesser part, in terms of news value, was what was on the tapes. It naturally fell into two parts. Had we run it all together, you would have had, let's say, a 15-minute package. That is a bit much."
Stuart Pierson, CNN's lawyer, said the network broadcast the tape of a conversation between Noriega and a member of the defense team following Justice Department assertions that it had not improperly listened to the conversations. "Then it became very relevant whether there was anything in these conversations" that should have alerted prison officials that they involved confidential communications between Noriega and his attorneys.
In the Pentagon Papers case, the newspapers abided by court injunctions against publication and ultimately won their case at the Supreme Court, which ruled 6 to 3 that national security considerations did not justify blocking publication of the secret history of the Vietnam War.
Media lawyer Bruce Sanford said the appeals court was obviously "irritated" by CNN's defiance of the trial judge's orders to turn over the tapes and to hold off on airing them until he could determine whether that would infringe on Noriega's right to a fair trial.
CNN argues that it did not violate the order blocking airing of conversations protected by the attorney-client privilege. It says Noriega's lawyer had waived the privilege in the one conversation the network aired by discussing the tape on camera.
At the Supreme Court, the press groups and CNN will argue that the case is squarely governed by the court's 1976 ruling in Nebraska Press Association v. Stuart, in which the justices unanimously reversed an order blocking Nebraska media from reporting before trial on a murder defendant's confession.
The court said there were other ways of assuring that the defendant's right to trial by a fair and impartial jury were protected, such as careful questioning of prospective jurors or a change of venue.
The Noriega case, said Pierson, is "an easier case" than Nebraska press. "What you had to protect the jury from there is a confession," he said. "What you have in this case is attorney-client conversation that to an average lay person should be unremarkable . . . nowhere near a confession to a crime."
Noriega's lawyers have argued that the infringement on the attorney-client privilege could violate their client's constitutional right to a fair trial and effective assistance of counsel by disclosing trial strategy to potential jurors as well as prosecutors.
Timothy B. Dyk, who is preparing a brief in the case on behalf of ABC, CBS, the National Association of Broadcasters, the American Society of Newspaper Editors, the Reporters Committee and other media groups, said there were "lots of alternative ways of protecting both the Sixth Amendment and the First Amendment rights in a case like this. . . . Let's remember, there's an important news story here and the news story is that the government may have acted improperly by listening to conversations between the defendant and his counsel."
In a number of recent high-profile cases, including the prosecutions of former White House aide Oliver L. North and District Mayor Marion Barry, juries have been selected despite extensive pre-trial publicity.
But Howard Weitzman, a criminal defense lawyer, criticized CNN for "jeopardizing Noriega's Sixth Amendment rights to a jury that is fair and impartial" and said it would be difficult to overcome the "taint" of disclosure of supposedly confidential communications.
Weitzman, when he represented former automaker John DeLorean, obtained a court order that was quickly overturned blocking CBS from broadcasting a sting operation. DeLorean was acquitted of cocaine trafficking charges.