The Supreme Court refused 7 to 2 yesterday to allow Cable News Network to broadcast tape recordings of deposed Panamanian leader Manuel Antonio Noriega's conversations with his lawyers. It was the first time the high court has permitted a judge's order to restrain a news organization in advance from publishing or broadcasting news.
The court did not issue an opinion but merely a two-sentence order rejecting CNN's request that the justices decide whether a lower court was correct in barring the network from broadcasting the tapes.
It also rejected CNN's request that the network be allowed to broadcast the tapes until the high court rules.
The battle returns to federal court in Miami, where U.S. District Judge William M. Hoeveler has ordered CNN not to broadcast the tapes until he can examine them to determine whether broadcast might jeopardize Noriega's right to a fair trial.
Following the court's action yesterday, CNN said it would turn over the tapes to Hoeveler. The judge could lift the restraining order after examining the tapes, which apparently were made by federal prison authorities in Miami where Noriega is being held.
In a strongly worded, two-paragraph dissent, Justice Thurgood Marshall, joined by Justice Sandra Day O'Connor, described the case as one "of extraordinary consequence for freedom of the press." He said the judge's order against CNN -- an example of what lawyers call prior restraint because its effect occurs before publication of the disputed material -- could not be "reconciled" with earlier Supreme Court cases stating that those seeking the "drastic remedy" of a prior restraint carry a "heavy burden" of proving that it is justified.
Marshall pointed to the high court's unanimous 1976 ruling in Nebraska Press Association v. Stuart, overturning an order that barred pretrial reporting of a murder defendant's confession or other incriminating statements in order to protect his right to a fair trial.
If "the lower courts in this case are correct in their remarkable conclusion that publication can be automatically restrained pending application of the demanding test established by Nebraska Press, then I think it is imperative that we re-examine the premises and operation of Nebraska Press itself," Marshall wrote.
The court moved swiftly, acting just a day after Noriega's lawyers and the Justice Department responded to CNN's request for high court relief.
In a statement, CNN President Tom Johnson described the court's refusal to hear the case as "a loss of a battle in a continuing war against censorship." He said the network is "confident" that after Judge Hoeveler reviews the tapes "he will decide on the merits to deny the prior restraint."
CNN had resisted turning over the tapes but its lawyer, Floyd Abrams, said following the Supreme Court's action yesterday that the network had no choice.
The high court has said that one of the central purposes of the First Amendment's free press protections is to prevent prior restraint. The amendment says "Congress shall make no law . . . abridging the freedom of speech, or of the press." In Nebraska Press, the court called prior restraint "the most serious and the least tolerable infringement" on freedom of the press.
The federal government lost a celebrated prior restraint case in 1971, when the justices voted 6 to 3 to reject the administration's attempt to stop the New York Times and The Washington Post from publishing the Pentagon papers on the grounds that publication would jeopardize national security.
Media lawyers reacted with surprise and dismay to the court's action yesterday.
Bruce Sanford called it a "grave disappointment" and said the order prohibiting broadcast of the tapes was a "classic prior restraint" that should have been clearly invalid under the Nebraska Press ruling.
"I'm stunned," said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "This is an unprecedented ruling, as Justice Marshall said, and the impact will go far beyond the case involving Noriega and CNN.
"What the court has done today is alter the traditional balance," Kirtley continued. "Until now the burden was always on the party seeking to gag the press to justify it. Now it appears the news media must go in and justify why it must be allowed to publish."
Noriega's lawyer Jon May called the action correct. Justice Department officials declined to comment.
The court took the course that the department had urged in papers filed Saturday. Solicitor General Kenneth W. Starr had told the justices it would be "premature" for them to hear the case before the District Court judge knew what the tapes contained.
Starr argued on behalf of the Bush administration, which is prosecuting Noriega on charges that he accepted $4.6 million in bribes from Colombian drug traffickers to protect cocaine trade through Panama. Starr said a "temporary" prior restraint was justified in the "peculiar circumstances" of the Noriega case to allow the trial judge to assess the harm that might be caused by the broadcast of conversations protected by the attorney-client privilege.
Gerald H. Goldstein of the National Association of Criminal Defense Lawyers, which filed a friend-of-the-court brief on Noriega's behalf, said that while "prior restraints are bad" and "free press is good," the order entered in this case was "a necessary thing" to protect attorney-client privilege.
But CNN attorney Abrams said that "to the extent that the court's refusing to hear this case may be taken as approval of the decision of the District Court, I do think it could have the deleterious effect of encouraging more prior restraints to be issued more easily by more judges."
The dispute over prior restraint erupted Nov. 7 after CNN announced that it had obtained tapes of Noriega's telephone calls from his Miami prison, including some conversations with members of his defense team.
The government denied any impropriety, saying Noriega had been informed that his telephone calls would be routinely monitored unless he informed prison officials he was having privileged discussions.
After Noriega's lawyers obtained a court order Nov. 8 barring CNN from broadcasting any privileged communication, CNN aired one tape in which Noriega spoke to a translator in his attorney's office concerning a defense investigator who was seeking information about two potential witnesses against him.
CNN contended later that Noriega's lawyers had waived the attorney-client privilege by discussing the conversation with network reporters. It also aired several tapes that were not of privileged communication and not in dispute in this case.
The 11th U.S. Circuit Court of Appeals in Atlanta upheld the order prohibiting CNN from broadcasting the conversations and requiring it to turn over the tapes for review. The Supreme Court declined to disturb that ruling yesterday.
Staff writer Howard Kurtz contributed to this report.