Opposition — Cable News Network, Inc. v. Manuel Antonio Noriega and United States

Nos. A-870 and 90-767 NOV 17 1990

Ree oe Oe Re Reamer mene - “Maan

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC., ET AL.,

APPLICANTS-PETITIONERS

Vv.

MANUEL A. NORIEGA, ET AL.

ON APPLICATION TO STAY THE ORDERS

OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

TEMPORARILY BARRING PUBLICATION

OF TAPE RECORDINGS

BEFORE IN CAMERA REVIEW PENDING CONSIDERATION

OF A PETITION FOR A WRIT OF CERTIORARI

AND ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

MICHAEL R. LAZERWITZ

: Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

— Rs aw

QUESTION PRESENTED

Whether the First Amendment prohibited the dis-

trict court from temporarily barring petitioners from

publishing tape recordings of conversations between

respondent, a criminal defendant awaiting trial, and

his attorneys, before submission of those tape record-

ings for an in camera review, in order to enable the

court to make the factual findings necessary to deter-

mine whether a prior restraint on publication is

permissible,

(I)

TABLE OF CONTENTS

SEES EES Se eo

a csiattemeentaiananenaniinh

ese cnieishannetinnntinnielitentt

AE IT a TE ee SN

Conclusion ...... ...... a acts

TABLE OF AUTHORITIES

Cases:

CBS v. United States District Court, 729 F.2d 1174

a cieennaiieeens

FW/PBS, Inc. v. City of Dailas, 110 S. Ct. 596

AEE SEES SN SN a

Goldblum v. NBC, 584 F.2d 904 (9th Cir. 1978) ....

Near V. Minnesota, 283 U.S. 697 (1931) -...............

Nebraska Press Ass’n v. Stuart, 423 U.S. 1819

i ssemntnmmanisignene

Nebraska Press Ass’n Vv. Stuart, 427 U.S. 539

eae 4, 6, 11,

New York Times Co. v. United States, 403 U.S. 713

i msemsinne

New York Times Co. v. United States, 403 U.S.

a snseenitnitpsenintoinaiee

Organization for a Better Austin v. Keefe, 402

I csciuenemasanennnmens

Press-Enterprise Co. v. Superior Court, 478 U.S. 1

2 ee ea ar

Seattle Times Co. v. Rhinehart, 467 U.S. 20

SES Ae ee

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

a csdclenena

United States v. Washington Post Co., 403 U.S.

a nnceenianenines

Constitution:

EE eee Awe 11, 12, 13, 15, 16,

13, 14

Ey

In the Supreme Court of the United States

OCTOBER TERM, 1990

Nos. A-370 and 90-767

CABLE NEWS NETWORK, INC., ET AL.,

APPLICANTS-PETITIONERS

VU.

MANUEL A. NORIEGA, ET AL.

ON APPLICATION TO STAY THE ORDERS

OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

TEMPORARILY BARRING PUBLICATION

OF TAPE RECORDINGS

BEFORE IN CAMERA REVIEW PENDING CONSIDERATION

OF A PETITION FOR A WRIT OF CERTIORARI

AND ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion and order of the court of appeals (Pet.

App. la-17a, 18a) are not yet reported. The orders

of the district court (Pet. App. 19a-24a, 25a-29a)

are not yet reported.

JURISDICTION

The judgment of the court of apeals was entered

on November 10, 1990. The application for a stay

(1)

2

of the district court’s orders and the petition for a

writ of certiorari were each filed on November 15,

1990. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1) and 2101(f).

STATEMENT

1. Respondent Manuel A. Noriega, a defendant

awaiting trial on federal criminal charges pending

before the United States District Court for the South-

ern District of Florida, is currently detained at the

Metropolitan Correction Center (MCC), Dade

County, Florida. On November 6, 1990, applicants-

petitioners, Cable News Network, Inc., and its parent

corporation, Turner Broadcasting Systems, Ine. (col-

lectively petitioners), notified Noriega’s attorneys

that they were in possession of seven tape recordings

of telephone conversations that Noriega had while he

was housed at the MCC." Petitioners played a portion

of one of those tapes for Noriega’s lead counsel, who

identified the conversation on the tape as one between

Noriega and a legal assistant and interpreter in his

office. Pet. App. 2a-3a, 30a-31a.

As a result of petitioners’ disclosure, Noriega filed

on November 7 an emergency motion for an injunc-

tion in the district court. Noriega sought an order

“prohibiting [petitioners] from broadcasting any

tape recording of any communication between Gen-

eral Manuel Antonio Noriega and any of his lawyers

1The Bureau of Prisons, as a matter of prison security,

routinely monitors the telephone conversations of all inmates

and so informs all inmates. Conversations with attorneys are

not monitored when the inmate notifies prison authorities

that he wishes to speak privately. See Pet. App. 14a-15a, 77a-

78a; see also td. at 14la-146a (release signed by Noriega).

The record contains no information regarding the origin

of the tape recordings petitioners obtained.

3

or his staff.”” Pet. App. 32a.* The district court held

a hearing the next day, November 8. Pet. App. 71la-

100a.

2.a. At the conclusion of the hearing, at which

counsel for petitioners, Noriega, and the government

entered appearances, the district court entered an

order temporarily enjoining petitioners from publish-

ing any of the tapes that contained privileged attor-

ney-client communications. The court’s order did not

apply to conversations that did not contain such priv-

ileged communications. Pet. App. 83a, 86a; see id. at

25a.°

b. Later that day, the district court entered a

written memorandum order and decision explaining

its temporary injunction. Pet. App. 19a-24a. At the

outset, the court noted 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.

Id. at 19a. As the court viewed the issue, the case

presented ‘a conflict between Noriega’s right to a

2 Noriega’s motion emphasized that “the objection made is

not to [petitioners’] right to broadcast a story, but specifically

their right to play a particular attorney/client privileged

communication.” Pet. App. 31a.

8 The court had also directed petitioners to produce the

tapes for in camera review, but stayed that portion of its

order. See Pet. App. 87a, 94a-97a.

‘During the hearing, the court directed the government to

refrain from monitoring “further conversations between the

lawyers, their representatives and [Noriega].”’ Pet. App. 86a.

The court also received from the government “under seal a

list of the telephone calls [Noriega made from the MCC].”

Id. at 94a.

4

fair trial and the First Amendment prohibition

against prior restraints.” Jd. at 21a. The court rec-

ognized the gravity of prior restraints: “The right

of the press to be free of prior restraints on speech is,

of course, at the very core of the First Amendment.”

Ibid. For that reason, the court observed, “fa] prior

restraint is presumptively unconstitutional.” bid.

(citing Organization for a Better Austin v. Keefe,

402 U.S. 415, 419 (1971) ).

The court acknowledged that Noriega “bears a

heavy burden to prove that a prior restraint is justi-

fied, and that a prior restraint can issue only where

the danger of disclosure is clear, immediate, and ir-

reparable.” Pet. App. 22a. Following this Court’s

decision in Nebraska Press Ass’n v. Stuart, 427 U.S.

539, 562-568 (1976), the court explained that “the

determination of when prior restraint is justified

where it conflicts with the right of fair trial must

rest upon factual findings based on the contents of

the speech at issue.” Pet. App. 23a. Specifically, the

court stated that its task under Nebraska Press Ass’n

would be to determine “whether the nature and con-

tent of the disclosure [of alleged defense and con-

fidential trial strategy] would impair the right to a

fair trial, whether any less drastic means * * * would

mitigate the effects of the disclosure, and whether a

prior restraint would effectively prevent the harm.”

Ibid. Here, the court pointed out, “the contents of

[petitioners’] tapes are not before the court, and

therefore it is impossible to determine, at this stage,

the precise extent to which Noriega’s right to a fair

trial would be hampered by disclosure.” Jbid.‘

* In these circumstances, and based on Noriega’s allegations

and petitioners’ concessions, see Pet. App. 20a, the district

court assumed that “at least some of the tapes contain discus-

5

Accordingly, the court ordered that “the temporary

injunction imposed on [petitioners] * * * is continued

until such time as [a designated United States magis-

trate reviews the tapes] * * * [to] determine whether

anything contained in the recordings presents a clear,

immediate, and irreparable danger to [Noriega’s]

right to a fair trial.” Pet. App. 23a. The court di-

rected petitioners to provide copies of the tapes to the

magistrate for that purpose. Jd. at 23a-24a.

ec. Petitioners did not comply with the district

court’s directive. Instead, petitioners on November 8

noted an appeal from the district court’s order tem-

porarily enjoining publication of the tapes, Pet. App.

37a-40a, and filed an emergency motion in the court

of appeals for “immediate consideration and vacation

of [that] order,” id. at 41a.

3. a. On November 9, the district court entered a

supplemental order in which it further explained the

basis for the temporary relief it had entered the day

sions of witnesses, evidence, and certain other aspects of

Noriega’s defense,” id. at 23a. This the court viewed as impli-

cating constitutional concerns with respect to the attorney-

client privilege in the context of a criminal case, since the

privilege “serves to protect a criminal defendant’s Sixth

Amendment right to effective assistance of counsel by ensur-

ing unimpeded communication[s] and disclosure by the de-

fendant to his attorney.” Jd. at 20a. The existence of the tape

recordings had, in the court’s view, already frustrated that

underlying purpose of the privilege. No broadcast restraint

would, in the court’s analysis, be justified on that ground alone

for it would merely be “symbolic and prophylactic as far as

this aspect of the attorney-client privilege is concerned.” Id.

at 2la. The court’s concern was therefore focused on the in-

jury flowing from dissemination of the defense’s theory of

the case and its trial strategy. “In this sense, the issue is

really one of the right to a fair trial rather than the attorney-

client privilege per se.” Ibid.

6

before. Pet. App. 25a-29a. The court reiterated that

the

test for determining whether a prior restraint

can issue where the right to a fair tria] is at

stake requires conclusions as to 1) whether the

right to a fair trial would be impaired, 2)

whether less restrictive alternative measures

short of prior restraint are sufficient, and 3)

whether a prior restraint would effectively pre-

vent the harm.

Id. at 26a (citing Nebraska Press Ass’n, 427 U.S.

at 562-568).

That test, the court pointed out, requires a factual

inquiry. Yet because the contents of the tapes were

not before the district court, the court “was in effect

being asked to make a factual determination without

being allowed to review the facts.” Pet. App. 26a.

Noting that petitioners have the tapes but have re-

sisted turning them over to the court for review, the

court remarked that it

seems fundamentally unfair to allow [petition-

ers] to benefit from [their] refusal to disclose

the contents of the tapes to the court—that is,

to allow [petitioners] to argue that no prior re-

straint should issue because no clear and imme-

diate harm is apparent when the only reason

that no clear and immediate harm yet appears

is because [petitioners have] so far prevented

this court from reviewing the content of the

tapes in [their] possession.

Tbid.

Turning to petitioners’ contention that the court

should look to the government to produce the tapes,

the court explained that obtaining all the tapes in the

government’s possession would not identify the ones

7

in petitioners’ possession, and might not even include

all the tapes petitioners have. Pet. App. 26a-27a &

n.l. This case, the court stated, is different from

other prior restraint cases because here it is impos-

sible for the court to make a determination whether

publication would clearly and immediately harm the

competing right at stake “without knowing the pre-

cise contents of the speech sought to be restrained.”

Id. at 28a. The court specifically contemplated an

“expedited review” of the tapes in question before

the magistrate and emphasized that its order “was

not a decision on the merits of [Noriega’s] request

for injunction.” Jd. at 27a. The court therefore or-

dered that the temporary restraining order remain

in effect for the period necessary for the magistrate

to review the tapes, not to exceed ten days. Id. at

28a-29a.

b. Petitioners on November 9 promptly noted an-

other appeal from the district court’s supplemental

order temporarily enjoining publication of the tapes,

Pet. App. 44a-45a, filed another emergency motion in

the court of appeals for “immediate consideration and

vacation of [that] order,” id. at 46a, and sought a

stay of the district court’s order pending appeal, id.

at 49a-53a.’

4. On November 10, the court of appeals—treat-

ing petitioners’ appeals from the district court’s writ-

ten orders prohibiting publication as a petition for a

writ of mandamus—denied relief. Pet. App. la-17a.°

5’ The court of appeals consolidated petitioners’ separate

appeals from the district court orders and directed the gov-

ernment and Noriega to file briefs on the issues presented.

Pet. 8; Appl. 7.

6 Petitioners do not appear to challenge the court of ap-

peals’ characterization of their case. See Pet. 4 & n.4. The

—_

8

The court of appeals acknowledged that this case

“presents a difficult question regarding the District

Court’s responsibility to balance the Sixth Amend-

ment right to a fair trial of [Noriega], with [peti-

tioners’] First Amendment right to be free from

prior restraints against the broadcasting of news-

worthy information.” Jd. at 2a. And in discharging

that responsibility, the court stated, “the trial court

is accorded broad discretion to accomplish its pri-

mary responsibility of ensuring that the accused has

a fair trial.” Id. at 7a.

The court of appeals recognized that “[n]otwith-

standing the District Court’s broad discretion in de-

termining First Amendment interests with respect to

a criminal defendant’s Sixth Amendment right to a

fair trial, a general, conclusory representation that

publicity might deprive a defendant’s right to a fair

trial is insufficient.” Pet. App. 10a (citing Press-

Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ).

To the contrary, the district court’s determination

“must be definitively and explicitly stated based on

court of appeals also held, as a threshold matter, that it lacked

jurisdiction over petitioners’ appeal from the district court’s

initial oral order, and accordingly dismissed that appeal. Pet.

App. 3a & n.1; id. at 18a. Petitioners have not sought further

review of that aspect of the court of appeals’ judgment.

On the evening of November 9, petitioners aired a news

report that included the tape initially disclosed to Noriega’s

lead counsel. Pet. 7; Pet. App. 54a-55a. As a result, on No-

vember 10, Noriega filed a motion with the district court to

hold petitioners in contempt. Pet. App. 102a-107a. Petition-

ers promptly filed in the court of appeals another emergency

motion to enjoin the district court from holding a contempt

hearing. The court of appeals denied that motion. /d. at 3a,

17a. Petitioners have not sought further review of that

motion. See also note 8, infra.

9

the particular facts and circumstances of this case.”

Pet. App. 12a.

The court of appeals thus held that “it is essential

that the District Court delineate carefully its reasons

for proscribing the broadcasting of the tapes in ques-

tion, * * * [and that] [p]Jarticular attention should

be given to the Sixth Amendment concern for an im-

partial jury.” Pet. App. 12a. Accordingly, the court,

noting its concern with petitioners’ “refusal to obey

the * * * order to release the tapes in question to the

court,” concluded that the district court “must pos-

sess the subject tapes in order to make its in camera

determination of whether the attorney-client com-

munications are privileged.” Ibid.’

In sum, the court of appeals concluded that

the First Amendment interests of the press and

the public will be best served by immediate pro-

duction of the tapes held by [petitioners] so that

the District Court can conduct the difficult bal-

aneing of constitutional rights required under

these circumstances; an obligation which the Dis-

trict Court is required to discharge.

Pet. App. 16a. In the present circumstances, the court

determined, it is “required to speculate as a result

of [petitioners’] refusal to produce the tape record-

ings.” Ibid. As the court observed in closing, “[n]o

litigant can continue to violate a district court’s or-

7In that regard, the court of appeals also concluded that

[w]hether or not the telephonic communications be-

tween Noriega and his defense counsel are privileged,

while not necessarily determinative of whether such

communications should be publically broadcast, would be

relevant to the District Court’s assessment of potential

harm to Noriega’s right to a fair trial.

Pet. App. 15a-16a.

10

der and attempt to have that district court’s order

reviewed at the same time.” [bid.

5. On November 15, after further proceedings in

the district court,® petitioners filed this application

for a stay of the district court’s orders (No. A-370),

together with their petition for a writ of certiorari

(No. 90-767).

ARGUMENT

Despite the broadside attack on the district court’s

orders leveled by petitioners (Appl. 10-32; Pet. 8-31)

and their amici (New York Times Br. 8-18; Amer-

ican Society of Newspaper Editors Br. 1-20), this

case does not require the Court to address the broad

question whether an injunction against publication is

justified on the basis of the record made to date. The

district court has not permanently enjoined petition-

ers’ publication of the Noriega tapes. To the contrary,

the district court carefully crafted its orders for the

limited and specific purpose of providing the court a

brief period within which to carry out its “expedited

review,” Pet. App. 27a, to make promptly the factual

®On November 12, after the court of appeals’ decision, the

district court held a hearing on Noriega’s outstanding motion

for civil contempt against petitioners. Pet. App. 108a-140a.

At that hearing, petitioners advised the district court that

they had “no intention to telecast any attorney-client privilege

conversations until [they] get relief from the Supreme

Court.” Id. at 11la. Moreover, petitioners and Noriega, with

the district court’s approval, agreed at that time to abide by

the district court’s temporary injunction barring publication

of the tapes and the stay of the district court’s order directing

petitioners to produce the tapes for in camera review (see

note 3, supra), pending this Court’s disposition of petitioners’

application for a stay and petition for a writ of certiorari. See

id. at 124a, 188a; Pet. Supp. App. 17-21. In light of these

developments, the district court has taken na further action

‘on Noriega’s pending contempt motion against petitioners.

11

findings that this Court has indicated are necessary

predicates for a restraint on publication in a case in

which fair trial rights are at issue. E.g., Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 562-568 (1976).

In other words, the question presented here is quite

narrow—whether the First Amendment prohibited the

district court from temporarily barring petitioners

from publishing tape recordings of conversations be-

tween Noriega and his attorneys, before submission

of those tape recordings for an in camera review, in

order to enable the court to make the factual findings

necessary to determine whether a prior restraint on

publication is permissible.

In our view, the district court’s orders—entered

solely for the purpose of enabling an informed deci-

sion to be made under the First Amendment on the

merits of Noriega’s request for an injunction against

publication—are not foreclosed by that same consti-

tutional provision. Rather, as the four judges now to

have considered the issue properly recognized, the

clash between the First Amendment guarantee of a

free press and the constitutional guarantees of fair

criminal proceedings may be accommodated by tem-

porarily preserving the status quo in order to allow

the courts an opportunity to assess and balance the

relevant interests at stake. Only then can the courts

be certain that the significant constitutional inter-

ests on both sides of the balance are weighted appro-

priately.

In light of the sound and limited rulings of the

courts below, the application for a stay and the peti-

tion for a writ ot certiorari should be denied.

1. The narrow question presented is whether the

First Amendment prohibited the district court from

temporarily barring petitioners from publishing tape

recordings of conversations between Noriega and his

12

attorneys, vefore submission of those tape recordings

for an in camera review, in order to enable the court

to make the factual findings necessary to determine

whether a prior restraint on publication is permis-

sible. As they did in the courts below, petitioners

continue to hold fast (Appl. 11-27; Pet. 12-24) toa

position that contains an inherent contradiction: pe-

titioners refuse to produce the tapes to the district

court so that the court can make the factual findings

necessary to determine whether an injunction is justi-

fied; at the same time, petitioners contend that the

district court may not enjoin publication without first

making those findings.

Petitioners’ position can be sustained only if this

Court were prepared to conclude that injunctive re-

lief could never be justified in this case, regardless

of the contents of the tapes petitioners have and in-

tend to publish. Petitioners submit that the First

Amendment licenses their refusal to provide the dis-

trict court with the means to assess the potential

harm that publication of the tapes could cause. In

other words, petitioners assert that, even if the con-

tents of the tapes made it inescapably clear that pub-

lication would render it impossible to ensure Nor-

iega—and the public—a fair trial,’ the First Amend-

ment would still preclude injunctive relief.

® The specific kind and degree of the harm that may result

from broadcasting the tapes depends almost entirely on the

contents of the tapes that petitioners possess and intend to

broadcast. The government cannot now be more specific with

respect to the possible harm that could flow from publication

of the tapes, because the government, like the courts below,

does not know the contents of the material petitioners have

and intend to publish.

Petitioners try to whipsaw the rationale of the courts below

by treating as straw men the asserted interests in preserving

13

This Court’s decisions do not sanction such an ex-

treme vision of the First Amendment. The Court

has long recognized that “the entry of a prior re-

straint on publication * * * [is] one of the most ex-

traordinary remedies known to our jurisprudence.”

Nebraska Press Ass’n, 427 U.S. at 562; see, e.g.,

Near v. Minnesota, 283 U.S. 697 (1931). Nonethe-

less, as made plain in Nebraska Press Ass’n, “[t]his

Court has frequently denied that First Amendment

rights are absolute and has consistently rejected the

proposition that a prior restraint can never be em-

ployed.” 427 U.S. at 570; see, e.g., New York Times

Co. v. United States, 403 U.S. 713, 714 (1971); Or-

ganization for a Better Austin v. Keefe, 402 U.S. at

419-420; see also Seattle Times Co. v. Rhinehart, 467

U.S. 20, 32 (1984). Just last Term this Court re-

iterated that “ ‘[p]rior restraints are not unconstitu-

tional per se * * *.’” FW/PBS, Inc. v. City of Dal-

las, 110 S. Ct. 596, 604 (1990) (opinion of O’Con-

nor, J.) (quoting Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 558 (1975) ).

Given the daunting remedy of a prior restraint,

and the need to accommodate the right to a free press

guaranteed by the First Amendment with other

equally weighty constitutional interests,’® this Court

privileged communications and avoiding prejudicial pretrial

publicity. See Appl. 17-27; Pet. 20-23. But that tactic does

not obscure the fact that if the tapes contain highly prejudi-

cial material or reveal defense strategy in some significant

way, publication of those tapes could have a direct, adverse

effect on the prospects for a fair trial. Petitioners’ position

is that the district court is not even permitted to find out if

that is the case.

10 As this Court has pointed out, for example, “[t]he au-

thors of the Bill of Rights did not undertake to assign priori-

14

has recognized that the critical question is “whether

the entry of * * * an order [restraining publication]

on the showing made before the * * * court violated

the constitutional guarantee of freedom of the press.”’

Nebraska Press Ass’n, 427 U.S. at 541 (emphasis

added) ; see id. at 562 (“whether the record supports

the entry of a prior restraint on publication”). In

other words, the searching constitutional inquiry this

Court has demanded—focusing on the impairment of

otherwise protected constitutional rights, the avail-

ability of alternative measures short of a prior re-

straint, and the effectiveness of the restraint, see id.

at 562-568—requires (and presupposes) an adequate

record from which the court can reasonably deter-

mine whether the particular case falls within the

narrow category of cases in which a prior restraint

is permissible. Indeed, in the Nebraska Press Ass’n

case, the Court struck down an injunction against

publication of information about a criminal defend-

ant only after concluding that the probability of prej-

udice to the defendant’s right to a fair trial “was not

demonstrated with the degree of certainty our cases

on prior restraint require.” 427 U.S. at 569.

In light of these settled principles, the district court

properly entered orders necessary to maintain the

status quo pending the court’s findings as to the na-

ture of the tape recordings at issue. Without such

temporary restraining orders, petitioners presumably

would have published the tape recordings, which in

turn would have rendered the request for injunctive

relief moot. Although this Court has emphasized that

a “prior restraint[] * * * bear[s] a heavy presump-

ties as between [the] First Amendment and Sixth Amend-

ment rights, ranking one as superior to the other.” Nebraska

Press Ass’n, 427 U.S. at 561.

15

tion against its constitutional validity,” New York

Times Co. v. United States, 403 U.S. at 714 (internal

quotation marks and citations omitted), the Court

has never held that a federal court may not ever ex-

ercise its authority to maintain the status quo pend-

ing a determination whether a prior restraint is ap-

propriate in a particular case. To the contrary, this

Court entered just such an order in the Pentagon

Papers cases. See New York Times Co. v. United

States, 403 U.S. 942 (1971); United States v. Wash-

ington Post Co., 403 U.S. 943 (1971).”

Here, petitioners’ request for emergency relief, al-

though styled as an application for a stay pending

the disposition of certiorari, at bottom seeks from

this Court the functional equivalent of summary dis-

position of their claim on the merits, namely, that

the First Amendment prohibited the district court

from temporarily barring publication in order to en-

able the court to make the factual findings necessary

to determine whether a prior restraint is permissible.

If the district court’s orders were stayed by this

Court, petitioners would be free to publish the tape

recordings and, in so doing, would render the con-

troversy effectively moot. As shown above, this

Court’s decisions do not countenance such an inflexi-

ble and counterintuitive approach to the First Amend-

ment. Moreover, in the past, this Court has not

hesitated to preserve the status quo in analogous

11 Indeed, in the Nebraska Press Ass’n case, Justice Black-

mun, sitting as Circuit Justice, denied an application for a

stay to lift the state court’s restraining order that essentially

maintained the status quo pending further proceedings. See

Nebraska Press Ass’n Vv. Stuart, 423 U.S. 1819, 1832-1333

(1975) (in chambers). And this Court later denied petition-

ers’ application for a more extensive stay in that case. Id.

at 1027.

16

cases in order to ensure an orderly and effective

means of judicial review. E..g., Nebraska Press Ass’n

v. Stuart, 423 U.S. 1027 (1975); ef. FW/PBS, Inc.,

110 S. Ct. at 612 (Brennan, J., concurring in the

judgment) (in licensing context, “any prior restraint

in advance of a final judicial determination on the

merits must be no longer than that necessary to pre-

serve the status quo pending judicial resolution’’).

The critical point is that the First Amendment is

part of the rule of law, not above it. It is certainly

true that, under the First Amendment, a lasting prior

restraint on publication may be justified only in the

most extraordinary circumstances. But the rule of

law requires permitting a court to determine if those

circumstances exist. This may or may not be the rare

case in which a lasting prior restraint is justified.

The district court entered the challenged orders to

find out. And those orders were expressly intended

to be temporary in duration so the district court could

promptly carry out its process of “expedited review.”’

This, then, is a far cry from the situations that ob-

tained in this Court’s “prior restraint” cases. Ac-

cordingly, petitioners’ application for a stay of the

district court’s orders should be denied.

2. The narrow issue actually presented by the

petition for certiorari—whether the First Amendment

prohibited the district court from temporarily bar-

ring publication in order to enable the court to make

the factual findings necessary to determine whether

a prior restraint is permissible—does not now war-

rant this Court’s review. As explained above, the

approach adopted by the district court and court of

appeals for addressing Noriega’s request for an ex-

traordinary prior restraint on publication is both

sensible and consistent with this Court’s decisions.

17

And contrary to petitioners’ sweeping submission

(see, e.g., Pet. 26-31), the decision below is not at

odds with a host of other lower court decisions. In

each of those decisions, the court had before it an

adequate record—including at least a sufficient de-

scription of the material sought to be published—to

undertake the requisite constitutional inquiry. See,

e.g., CBS v. United States District Court, 729 F.2d

1174 (9th Cir. 1983) (government surveillance tapes

of criminal defendant) ; Goldblum v. NBC, 584 F.2d

904 (9th Cir. 1978) (Kennedy, J.) (“docudrama”

film about convicted defendant’s well-publicized fraud

scheme). Here, by contrast—in light of the peculiar

circumstances presented by petitioners’ having tape

recordings whose contents are unknown—the courts

below had no such record with which to make the

appropriate inquiry. Nothing in the First Amend-

ment, this Court’s decisions, or the decisions of lower

federal and state courts, requires the difficult issues

surrounding a motion for an injunction barring pub-

lication to be resolved in such a manner.”*

2 The fact that, in cases such as CBS and Goldblum, the

courts did not have access to the tapes and film in question is

irrelevant, since the courts otherwise had sufficient informa-

tion to assess the significance of the materials at issue.

18 Petitioners assert in passing (Pet. 25) that the district

court’s restraining orders are unconstitutionally vague. The

record belies that suggestion, where petitioners themselves

have told the d#@rict court that they fully understand the

scope of those orders, i.e., that they would not “telecast any

attorney-client privilege conversations” pending disposition

of the case before this Court. Pet. App. llla. Indeed, on

November 13, petitioners reiterated before the district court

that they understood that they “are under a Court Order

restraining us from telecasting any privileged attorney-client

communications between Mr. Noriega, General Noriega and

his lawyers.” Pet. Supp. App. 17.

18

In the end, petitioners and amici trumpet that this

case poses a conflict between free press and fair

trial. And they have no doubt as to how that conflict

should be resolved. But the purpose of the narrow

orders entered by the district court was not to pro-

tect the parties’ right to a fair trial, it was rather to

determine the extent to which that right was threat-

ened and, if so, what steps—if any—were necessary

and appropriate to protect it. There will be time

enough for the lower courts and this Court to con-

sider whether a lasting prior restraint over publica-

tion of privileged attorney-client communications is

permissible to ensure a fair trial, when we know

whether petitioners’ tapes contain such communica-

tions, and whether-—given their contents—such an

injunction would be the only effective alternative.

We do not yet know that. Review by this Court is

thus, at the least, premature.

In short, petitioners ask this Court to resolve the

questions they present in a vacuum. Their request is

all the more remarkable for its sweep. In their

view, this Court should now hold that the First

Amendment right to publish prevails no matter what

might be on the tapes and no matter what the effect

of publication might be. Petitioners make generous

use of the term “unprecedented,” see, e.g., Pet. 8,

but it is, upon close scrutiny, the ruling they seek

from this Court—that a federal court cannot even

ask what it is that will be published in considering

whether publication is protected—that would be truly

unprecedented. The Court should decline the rushed

invitation to embrace that vision of the First Amend-

ment.

en

19

CONCLUSION

The application for a stay of the district court’s

orders pending the disposition of the petition for a

writ of certiorari and the petition for a writ of cer-

tiorari shculd be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, ITI

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

NOVEMBER 199%

WT ov. S. GOVERNMENT PRINTING OFFicE; 1990 282061 20210