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The Noriega Tapes

IN United States legal doctrine, under which most rights and interests are ``weighed'' and ``balanced'' against competing rights and interests, few rights are inviolable. But one protection that has been very nearly untouchable is the press's right against prior judicial restraint of the publication or broadcast of newsworthy material. Press freedom is so vital to democracy, the Supreme Court has ruled, that virtually no circumstance justifies government attempts to block news dissemination (although the press can be held accountable after the fact for libel or invasions of privacy). That's why so many in the news media are aghast at a federal court order last week, upheld by an appeals court, that tried to bar Cable News Network from airing a secret government tape of a phone conversation between Manuel Noriega and a member of his legal defense team. CNN ignored the order, and now faces possible sanctions as it appeals the order to the Supreme Court.

In the scales opposite the press's First Amendment rights are a criminal defendant's Sixth Amendment right to a fair trial untainted by adverse publicity, and also the sanctity of confidential communications between lawyers and clients. These are not trivial interests to safeguard.

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But the ends of democracy are well served by an uninhibited press. Publication of the Pentagon Papers helped redress an imbalance, caused by government secretiveness and deceit, between public- and private-decisionmaking authority in wartime. And experience has shown that impartial juries can always be found for criminal defendants, despite pretrial publicity.

Yet those facts don't excuse irresponsible press conduct. CNN was right to disclose the existence of the Noriega tapes, as they raise troubling questions about the government's honesty in its prosecution of the Panama dictator. But in playing part of one tape - even if within its legal rights - CNN may have encroached on other important rights for a rather inconsequential scoop.

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