THE SUPREME COURT, ignoring its own precedents, has let stand a federal judge's gag order forbidding Cable News Network from broadcasting tapes of Manuel Noriega's jailhouse telephone conversations. The court offered no explanation for its stunning and potentially far-reaching decision. Its 7-2 vote, refusing both CNN's emergency request to lift the stay and its appeal on the merits of the gag order, means that for now at least the effort to deny CNN its right of free speech remains in force.
Let there be no mistake about it. The ultimate loser in all this is the public, for it is the people's essential liberties that the First Amendment is intended to protect.
The highest judicial authority in the land has approved the notion that a court can censor newspapers, magazines or broadcasters in advance of publication ' on a finding that the right to free speech may be outweighed by another claimed right.
Lawyers call this form of censorship "prior restraint." The Supreme Court specifically considered it in a 1976 Nebraska case. At that time the court unanimously struck down a gag order issued by a Nebraska judge who sought to bar pretrial publication of an alleged murderer's confession.
The judge thought publication might make a fair trial impossible. The Supreme Court held that this possibility was insufficient to justify prior restraint. The court said that gag orders may only be used as a last resort ' with judges obligated first to consider less drastic measures.
Judge William M. Hoeveler ordered CNN to stop playing the Noriega jailhouse tapes on the air due to the outside possibility that they might prejudice the former Panamanian dictator's right to a fair trial. But there was virtually no showing of need behind this order, or any apparent consideration that less drastic measures might suffice.
Justice Thurgood Marshall, writing for himself and Justice Sandra Day O'Connor, the other dissenter to Sunday's decision, went right to the heart of the matter.
"Our precedents," said Marshall, "make unmistakably clear that any prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity and that the proponent of this drastic remedy carries a heavy burden of showing justification for its imposition.
"I do not see how the prior restraint imposed in this case can be reconciled with these teachings . . ."
It's possible that Judge Hoeveler, after listening to the tapes in CNN's possession, will lift his gag order. Even then, a dangerous precedent allowing courts to temporarily silence the press will have been set, inviting judges to invoke prior restraint on the most problematical of claims.
It's by no means inconceivable that "temporary" censorship could be used to deny the public timely information about official misconduct, financial manipulations, threats to public health and safety. Justice Marshall is right. This is a case of "extraordinary consequences for freedom of the press," and, by extension, for American liberties.