THE loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
These words, written by Supreme Court Justice William J. Brennan in a 1976 case, reflect the vigilance against censorship that has pervaded the Court's attitude for most of this century. The American judicial system has long recognized prior restraint of speech as antithetical to the principles of democracy. But a decision last week proved a dangerous departure from that tradition. By refusing to strike down a ban on broadcast of the so-called Noriega tapes, the Court gave encouragement to those would seek further regulation of the press.
EARLIER this month, the Cable News Network (CNN) obtained recordings of conversations between deposed Panamanian dictator Manuel A. Noriega and attorneys defending him against drug trafficking charges. The original tapes were apparently made by federal officials, who routinely montitor the telephone calls of prison inmates.
Noriega's lawyers were outraged by the breach of privacy and rushed to court, where Federal Judge William M. Hoeveler issued an order prohibiting CNN from broadcasting the tapes. The judge reasoned that public disclosure of Noriega's defense strategy might compromise his right to a fair trial.
CNN quickly appealed the ruling and on November 18, just one day after the last briefs were filed, the Supreme Court refused to lift the order. The court ruled 7 to 2 against CNN, with an unusual pair of justices, Sandra Day O'Connor and Thurgood Marshall, dissenting.
The court's failure to strike down the ruling is not completely unprecedented. It has refused such emergency appeals in the past. But as Justice Marshall pointed out in his opinion, there is clear precedent in the Noriega case. And that precedent, from the 1976 ruling in Nebraska Press Association v. Stuart, supports CNN.
In the past, the Court has struck down every prior restraint it has considered on the merits. It has also recognized the good served by the airing of alleged government misconduct and granted the press special leeway in those cases. The CNN dispute fits squarely into that mould. The power that the national media can wield may be frightening, but it is mild in comparison to the danger of placing editorial decisions in the hands of the judiciary. Moreover, given the questionable complicity between Noriega and the United States Government, we cannot allow that secrecy to continue.
HOEVELER now has a chance to redeem himself and, to some extent, the justice system. CNN has turned the tapes over to him and he will decide later this week on whether to continue the ban.
Should the dispute over the tapes let Noriega off the hook, the government will have to shoulder the blame. The public will have to bear the burden of unanswered questions that a fair trial may have helped to answer. It was not CNN but federal officials who ordered the recording of the calls. They, and not the First Amendment nor the American public, should bear the consequences of that decision.