Several lawyers and media analysts said yesterday that Cable News Network bungled the Noriega tapes case and inadvertently damaged the First Amendment by broadcasting tapes whose content was of little value.
Others, however, said CNN acted responsibly in refusing to allow a federal judge in Miami to dictate what it could report. They said U.S. District Judge William Hoeveler's decision yesterday to lift his own gag order showed that the network was correct in defying the order and insisting that the judge had overstepped his bounds.
"Without being smug, I think we were vindicated," said Ed Turner, CNN's vice president for news.
Still, there was widespread grumbling that by airing a taped conversation between deposed Panamanian leader Manuel Antonio Noriega and his legal team, CNN unnecessarily provoked a constitutional confrontation. The result was that, for the first time, the Supreme Court refused to review a lower-court order imposing prior restraint on a news organization.
"The actual content of the tapes strikes me as not having very much news value," said Everette Dennis, director of the Gannett Foundation Media Center at Columbia University. "They could have revealed the existence of such tapes and still scored a considerably important news break. It was probably poor judgment to run the tapes in defiance of the courts."
Brookings Institution analyst Stephen Hess said CNN "took one hell of a risk by playing it this way. We could've ended up with a very limiting decree for prior restraint, and for what?
"Their story was that the government was taping, we assume illegally, Noriega's conversations with his lawyers. You could have told that story without using the tapes and therefore endangering anybody's right to a fair trial. Other than that, we haven't learned anything."
Turner acknowledged that the tapes contained "interesting stuff but no great shakes." Still, he said, the tapes shed light on such details as Noriega's continued contact with his political operatives in Panama.
In yet another strange twist, Gannett Newspapers, Associated Press and the Miami Herald have gained a court hearing today in Miami to demand transcripts of the Noriega tapes on grounds that they have the "right of access" to a "court record," Gannett attorney Barbara Wall said. A hearing was scheduled after CNN refused to share the tapes voluntarily with its competitors.
The tapes case became an overnight cause celebre, with more than a dozen news organizations, including The Washington Post, filing friend-of-the-court briefs. But conservative critics such as Michael McDonald, president of the Center for Individual Rights, say many media spokesmen went too far in arguing that the press should never be restrained from publishing.
McDonald said that CNN officials were "thumbing their nose at the judiciary" and that the episode "reinforces the impression that they are a bunch of irresponsible louts who need to be slapped down."
Even some people sympathetic to First Amendment concerns said CNN had hyped the story. Dennis said the network appeared driven more by "a competitive market" than "a public-interest standard."
CNN first broadcast a barely audible tape Nov. 8 after playing it privately for Noriega's primary lawyer, Frank Rubino, who confirmed on the air that it was authentic. Rubino quickly obtained a court order barring further broadcast of tapes that would violate attorney-client privilege. CNN, which still faces a contempt-of-court hearing in the matter, nevertheless broadcast a second tape the next day.
Attorney Floyd Abrams, who advised CNN, said the network had refused "to conform its publication schedule to potential legal risk." He said its reporters had shown "honorable" restraint by first consulting with Rubino.
Turner has said CNN did not air all of the tapes immediately because that would have produced "a 15-minute package," which he described as "a bit much."
But media lawyer Bruce Sanford said news organizations should never put themselves "in a position where a court is going to say, 'Let me see your unpublished material.' You publish everything before that happens.
"The fundamental question for any news organization is to ask themselves, 'Is this case worth risking First Amendment liberties?' This was not the Pentagon Papers," Sanford said.
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, called Hoeveler's original ruling "truly absurd" and said the legal battle would have a lingering effect.
"A news organization was gagged from reporting legally obtained information for several weeks," she said. "This will provide encouragement to legions of judges on the state and federal level to enact temporary gag orders."