US v. Noriega

• Decision Date: 09 November 1990
• Docket Number: No. 88-0079-Cr.,88-0079-Cr.
• Citation: 752 F. Supp. 1032
• Parties: UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant. Cable News Network, Inc., and Turner Broadcasting System, Inc.
• Court: U.S. District Court — Southern District of Florida

752 F. Supp. 1032

UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant Cable News Network, Inc., and Turner Broadcasting System, Inc.

No. 88-0079-Cr.

United States District Court, S.D. Florida.

November 8, 1990.

Supplemental Order November 9, 1990.

Michael P. Sullivan, Myles H. Malman, Guy Lewis, Asst. U.S. Attys., Miami, Fla., for U.S.

Frank A. Rubino, Coconut Grove, Fla., Jon May, Steven Kollin, Miami, Fla., for Noriega.

Terry S. Bienstock, Frates Beinstock & Sheehe, Miami, Fla., Daniel M. Waggoner, Stuart F. Pierson, Davis Wright Tremaine, Washington, D.C., Steven W. Korn, Turner Broadcasting System, Inc., Atlanta, Ga., for Cable News Network, Inc., and Turner Broadcasting System, Inc.

ORDER

HOEVELER, District Judge.

THIS CAUSE IS before the court on Defendant Manuel Noriega's motion to enjoin Cable News Network, Inc. and its corporate parent, Turner Broadcasting System, Inc. (collectively "CNN") from broadcasting tape recordings of privileged telephone conversations between Noriega and his defense team.

DISCUSSION

This issue at bar presents the court with the unfortunate and difficult task of resolving a conflict between two fundamental constitutional rights: the First Amendment right of the press to be free from any prior restraint on speech, and the Sixth Amendment right of an accused to a fair trial.

At the outset, the court notes that the issue it confronts is unprecedented. The court is aware of no case, and none has been presented to it, in which a member of the press sought to broadcast an otherwise privileged attorney-client communication. Past cases dealing with the conflict between the First Amendment and the right to a fair trial have concerned damaging information which, if made known, could hamper the selection of a fair and impartial jury. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); CBS v. United States District Court, 729 F.2d 1174 (9th Cir.1984). Not only does the court now potentially face that very same issue, but it encounters the novel circumstance where the speech, if published, could—against all strictures of due process and fairness—reveal to the prosecution the defendant's trial strategy and protected confidences. The cases cited by the parties discussing the doctrine of prior restraint are, therefore, of somewhat limited precedential value to the facts of this case.

Defendant characterizes the issue as the violation of the attorney-client privilege. To be sure, there is no question that an intrusion has occurred. CNN concedes that the tapes contain communications between Noriega and his defense team, and there is no indication that the attorney-client privilege was waived. It further appears that the conversations were recorded by a third party, and that the tapes of these conversations were delivered into CNN's possession either by that same party or another third party. Nonetheless, it is the court's opinion that the issue at stake is more properly framed as the defendant's right to a fair trial.

The attorney-client privilege is not per se a constitutional right; however, the privilege takes on a constitutional aspect when, as here, it serves to protect a criminal defendant's Sixth Amendment right to effective assistance of counsel by ensuring unimpeded communication and disclosure by the defendant to his attorney. That purpose, however, has already been frustrated by the very fact of invasion. An injunction prohibiting CNN from broadcasting the tapes would go nowhere toward preventing the harm which has already occurred —that harm being Noriega's understandable reluctance to freely discuss his case with his lawyers in light of what has occurred. In other words, the uninhibited communication which the attorney-client privilege protects was impeded at the very moment Noriega learned his confidential conversations were being monitored, and given this, a restraint on the broadcast of those conversations would be symbolic and prophylactic as far as this aspect of the attorney-client privilege is concerned.

A secondary purpose behind the attorney-client privilege, and the prohibition of its violation, is to prevent the disclosure of information damaging to the defendant's case—information which, though damaging, is privileged. In this sense, the issue is really one of the right to a fair trial rather than the attorney-client privilege per se. The court therefore sees this case as a conflict between Noriega's Sixth Amendment right to a fair trial and CNN's First Amendment right to publish without prior restraint.

The right of the press to be free of prior restraints on speech is, of course, at the very core of the First Amendment. A prior restraint is presumptively unconstitutional, with the movant bearing the "heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). "In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on speech." In re Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir.1986), modified, 820 F.2d 1354 (1st Cir.1987) (en banc), cert. dismissed, 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). This does not mean, however, that there is no situation in which a prior restraint on the press is justified. Among the very narrow range of cases which may justify a restraint are those involving a criminal defendant's right to a fair trial. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); In re Providence Journal Co., 820 F.2d at 1350. Nebraska Press involved the problem of excessive pretrial publicity and the right to a fair and imparital jury. In that case, the Supreme Court established the test that must be met before prior restraint is justified where the restraint is based on the need to prevent such prejudicial publicity:

1) the nature and the extent of pretrial publicity must impair the right to a fair trial;

2) there exist no less restrictive alternative measures which would mitigate the effects of the publicity; and

3) a prior restraint would effectively prevent the harm.

427 U.S. at 562-68, 96 S.Ct. at 2804-07.

The Supreme Court struck down the restraints in Nebraska Press on the ground that alternative means existed to ensure a fair jury, but the fact that it established a test for determining whether a prior restraint is justified is a reflection of its refusal to adopt a per se rule against prior restraints. Id. at 570, 96 S.Ct. at 2808 ("This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.)

In addition to the problem of prejudicial pretrial publicity, another distinct aspect of the right to a fair trial is at issue here, and that is the right of the defendant not to have his trial strategy and protected confidences disclosed to the prosecution. The court recognizes, as stated earlier, that the movant bears the heavy burden of proving that a prior restraint is justified, and that a prior restraint can issue only where the danger of disclosure is clear, immediate, and irreparable. On this point, defense counsel has already heard certain portions of CNN's tapes, and has stated to the court that the portions he heard involved discussion of witnesses, defense investigation, and trial strategy at the core of Noriega's defense. It is further noted that defense counsel's burden on the issue is significantly hampered by the fact that his ability to fully elaborate upon the nature of the harm is limited given the presence of CNN and the prosecution at the hearing. Full disclosure of the extent of the harm—which would involve discussion of his defense and trial strategy—would bring about the very problem he seeks to avoid.

As is set forth in the cases, and in particular, Nebraska Press, the determination of when prior restraint is justified where it conflicts with the right to a fair trial must rest upon factual findings based on the content of the speech at issue. The three-prong test in Nebraska Press, addressed to prejudicial pretrial publicity, applies as well where the disclosure of the defense and confidential trial strategy is at stake. Thus, the court would have to determine, based upon the content of the speech, whether the nature and extent of the disclosure would impair the right to a fair trial, whether any less drastic means exists which would mitigate the effects of the disclosure, and whether a prior restraint would effectively prevent the harm. Unfortunately, the contents of CNN's tapes are not before the court, and therefore it is impossible to assess, at this stage, the precise extent to which Noriega's right to a fair trial would be hampered by disclosure. What is known at this point is that at least some of the tapes contain discussions of witnesses and certain other aspects of Noriega's defense. Perhaps this alone is enough to sustain an interim...