Restrained reaction: Slade Metcalf on publishing and the law

Folio: The Magazine for Magazine Management, May 1, 1991 by Slade. Metcalf

A defamation suit against your magazine is not a welcome event. But has anybody ever tried to "freeze" your speech by stopping you from publishing something before it was printed? There is a widely accepted view that all judicial orders preventing publication of newsworthy matters, called prior restraint orders, are unconstitutional. That theory, however, has recently begun to erode--all because of what may become known in legal lore as "The CNN Case."

A few years ago, a Federal appellate court stated, "Of all the constitutional imperatives protecting a free press under the First Amendment, the most significant is the restriction against prior restraint upon publication." However, late last year, a different Federal appellate court let stand an injunction against CNN's proposed broadcast of taped conversations between General Manuel Noriega and his attorney. The United States Supreme Court, when asked, refused to take any action. What is the legal impact for future prior restraint cases?

A brief background is necessary. Historically, prior restraints on speech have met with disfavor in our Federal courts. In 1971, in the Pentagon Papers case, the United States Supreme Court refused the Government's request that The New York Times and The Washington Post be restrained from publishing the contents of top-secret documents concerning U.S. policy in Vietnam. However, the Court did imply that a prior restraint might be appropriate in cases where either an individual's right to a fair criminal trial or national security interests were at stake.

Five years later, the Supreme Court addressed that "fair trial" aspect when it was asked to rule on the constitutionality of a Nebraska state judge's gag order on the press prior to the impaneling of the jury for a widely publicized and sensational murder trial. The Supreme Court stated that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." The court then developed a three-part analysis to determine whether a court may prohibit reports of criminal proceedings:

1. An analysis of the nature and extent of the pretrial news coverage.

2. Whether there are other measures that would mitigate the effects of the pretrial publicity such as a change of trial venue, a postponement of the trial and/or emphatic instructions to jurors to ignore previous press accounts).

3. Whether a restraint would be effective to prevent the threatened danger.

Because the Nebraska state court had not made this analysis, the Supreme Court reversed the gag order, saying that it was inconsistent with the values of the First Amendment.

The 'fair trial' issue

Returning to the CNN case: General Noriega sought to prevent CNN from broadcasting conversations he had had with his attorney, contending that such a broadcast would deprive him of his right to a fair trial. (The conversations had been taped with Noriega's consent, pursuant to the policy of the jail in which he was incarcerated while awaiting trial.)

before listening to the tapes, a Federal district court granted Noriega's motion and ordered a temporary restraint against CNN. CNN was then ordered to deliver the tapes to the court so that the judge could determine whether CNN would ever be permitted to air them. However, rather than abide by the order, CNN refused to deliver the tapes and instead broadcast the conversation, while, at the same time, seeking an immediate appeal of the lower court's rulings.

On appeal, the United States Court of Appeals held that it was the trial judge's primary responsibility to take steps to ensure that Noriega would receive a fair trial. Noting that it was "troubled" by CNN's refusal to produce the tapes, the Court of Appeals upheld the lower court's decision. It ruled that CNN "shackled" the lower court and that it was improper for CNN to violate that court's order and, at the same time, attempt to have that court's order reviewed on appeal. Surprisingly, the United States Supreme Court refused CNN's request that the decision be stayed, as well as CNN's request for a consideration of the merits.

After CNN turned over the tapes to the lower court judge, that judge ruled that the broadcast of statements would not be further restrained. If the tapes had been turned over soon after the judge's initial order, these unsettling rulings by the appellate courts would probably never have been rendered.

The CNN case does not, however, alter the fact that prior restraint orders are viewed with judicial disfavor. Other Federal appellate courts have refused to enjoin publications or broadcasts in the face of claims that the rights of individuals would be severely prejudiced. Early last year, for example, one court held that surreptitious tape recordings of the offices and activities of a doctor who was under investigation for unethical conduct could be broadcast by the news program Inside Edition, despite allegations by the doctor that the recordings were made illegally.