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The First Amendment does indeed come first.

The First Amendment does indeed come first

The recent fiasco over the CNN/Noriega tapes foreshadows a darker future for prior restraint cases.

Now, for the first time, the Supreme Court has refused to review a prior restraint, i.e., a judicial order prohibiting the publication or broadcast of material already possessed by the news organization.

Perhaps the peculiar facts of the CNN case will prove the court's decision to be an aberration, but the ruling may be a harbinger of the way close cases will be decided in the years ahead.

The prior restraint issue in the case was crisp: whether the trial court judge could, under the First Amendment, prohibit broadcast of the tapes until he determined whether their broadcast would impair Noriega's Sixth Amendment right to a fair trial. The judge maintained that he could not make that determination without seeing CNN's tapes; CNN contended that the judge's order to turn over the tapes was unconstitutional.

This stalemate quickly found its way to the U.S. Supreme Court, where a 7-2 majority refused to lift the lower court's order and, in effect, allowed the prior restraint to continue, at least until CNN provided the tapes.

The court's ruling also indicates that news organizations will be expected to submit challenged material to judges before it is published, a notion abhorrent to all who believe that judges should not be censors or editors. On the other hand, the media for years insisted that courts could not elevate a defendant's Sixth Amendment right over the media's First Amendment right, unless that decision was based on specific factual findings in the court record.

The media succeeded in this battle, but it is not surprising that judges now expect the media to participate in the required hearings by providing evidence relevant to the nature and extent of the potential news coverage. Too often, however, judges forget that the party seeking the restraint or closure must show the necessity for such an extraordinary remedy; the media is not required to justify their coverage.

The current thinking of the Supreme Court appears to be that, at least in close cases, a news organization facing a prior restraint must provide the trial court with at least a sufficiently detailed description of the material to be published. This view was advocated in the CNN case by Solicitor General Kenneth Starr: "[CNN] continue[s] to hold fast to an inherent contradiction: [it] refuse[s] to produce the tapes to the district court so that the court can make factual findings necessary to determine whether an injunction is justified; at the same time, [CNN] contend[s] that the district court may not enjoin publication without first making these findings."

Starr's approach, unlike the more absolute approach followed by the court in the 1971 Pentagon Papers case, requires that the First Amendment interests at stake be balanced against other issues. "The critical point," Starr wrote, "is that the First Amendment is part of the rule of law, not above it."

The flaw in this reasoning in the CNN case is that the precise nature of the taped conversations was irrelevant. Even if the worst was assumed - for example, that the tapes contained Noriega's absolute confession - broadcast of the tapes should not have been prohibited. Many people would not watch the broadcast of the tapes or read news accounts of them.

As recent history demonstrates, and as the court in the CNN case eventually recognized, celebrated criminal defendants - the Watergate defendants, Oliver North, and Marion Barry, to name a few - are able to obtain fair trials despite overwhelming publicity.

Under a "balancing" approach, however, such assumptions are not made; the First Amendment is weighed, not elevated.

Bruce W. Sanford is SPJ's First Amendment counsel and a partner at Baker & Hostetler in Washington, D.C.
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Title Annotation:CNN/Noriega tapes
Author:Sanford, Bruce W.
Publication:The Quill
Date:Jan 1, 1991
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