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Judge Rules Noriega Transcripts Public - But Not Yet

December 4, 1990

MIAMI (AP) _ Transcripts of the Manuel Noriega prison tapes that led to a free-speech showdown between his defense and CNN are public property, a federal judge ruled Tuesday.

But U.S. District Judge William Hoeveler postponed releasing the documents to give the network time to appeal his decision to the 11th U.S. Court of Appeals in Atlanta.

The judge’s ruling came in an action brought by four media organizations demanding access to the transcripts. They contended the public had a right to know the facts behind a case that tested the constitutional limits of prior restraint on the media.

″The judge has reaffirmed the fact that it’s the public that has an interest in this matter, not any particular news organization,″ said Robert Bernius, an attorney for the media group. ″These tapes precipitated a First Amendment crisis.″

The news organizations seeking the tapes were The Miami Herald, The Associated Press, Post-Newsweek station WPLG-TV of Miami and Gannett Co. Inc. and USA Today, which Gannett owns.

CNN attorney Terry Bienstock said the network was disappointed by the ruling but had not decided whether to appeal. He said the judge’s decision had, in effect, extended the First Amendment by releasing material from closed court sessions.

″To the extent it benefits all media, CNN’s pleased about that,″ Bienstock said. ″But we still see this as a continued breach of the news- gathering process, by allowing access to information gathered under a promise of confidentiality.″

CNN has televised some of the seven tapes at issue and had argued that the recordings, and therefore the transcripts, were its property. CNN accused other news organizations of ″professional jealousy,″ and said the transcripts should be burned or returned to the network.

But the judge’s decision Tuesday chided CNN for first fighting to televise the tapes, then reversing its position to keep them from being used by other news organizations.

He said it was a ″surprise to have CNN, the forceful proponent of a free press operating without judicial intervention, return to this court urging that the press and public be denied a right of access to the very information which CNN has argued is of immediate public interest.″

The judge also dismissed CNN’s contention that it owned the contents of the tapes, saying Noriega and the U.S. government, through the Bureau of Prisons, were the original sources of the tapes.

CNN ″did not interview Noriega to obtain the conversations, nor did it record the conversations,″ the judge said.

The tapes issue erupted last month when CNN began a series of broadcasts based on Noriega’s telephone conversations somehow leaked to the network.

Noriega attorney Frank Rubino went to the judge demanding that CNN not broadcast any tapes between the deposed Panamanian leader and his defense team, saying it violated lawyer-client privilege protected by the Sixth Amendment right to a fair trial.

Hoeveler issued a broadcast ban Nov. 8, but the following day CNN broadcast a conversation between Noriega and Rubino’s secretary, who was translating for a defense investigator. The network said the First Amendment forbids prior restraint of the media, and that the judge’s order was invalid.

The network stopped the telecasts the following day after the 11th Circuit upheld the judge’s ruling. The appeals court told Hoeveler he could examine the tapes to see if they indeed harmed Noriega’s rights. The U.S. Supreme Court, on a 7-2 vote, refused to intervene.

CNN submitted the tapes to Hoeveler, who had the transcripts made. After all sides examined them in secret, the judge found the tapes did not prejudice Noriega’s defense and said the network could televise them.

Other media said the judge’s decision made the transcripts public record and went into court Friday to demand release of the documents.

CNN hasn’t said where it got the tapes, but Noriega’s attorneys said the tapes were released to the government of Panama by the State Department or the Drug Enforcement Administration, and that Panama gave them to CNN.

Free speech advocates have worried that the case has left a precedent allowing at least temporary prior restraint of the media, contradicting a constitutional tradition against such rulings.

Noriega is awaiting trial on charges of taking $4.6 million in payoffs to protect the cocaine trade.

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