Amicus Curiae Brief — Cable News Network, Inc. v. Manuel Antonio Noriega and United States

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IN THE iii

Suprenve Court of the United Stites

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC.,

y Petitioner,

GENERAL MANUEL NORIEGA and

UNITED STATES OF AMERICA,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMERICAN SOCIETY OF NEWSPAPER

EDITORS, CAPITAL CITIES ABC, INC. CBS INC.,,

NATIONAL ASSOCIATION OF BROADCASTERS,

THE NATIONAL CABLE TELEVISION ASSOCIATION,

INC., RADIO-TELEVISiION NEWS DIRECTORS

ASSOCIATION, THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, THE SOCIETY OF

PROFESSIONAL JOURNALISTS, AND

WESTINGHOUSE BROADCASTING CO., INC..

AS AMICL IN SUPPORT CF PETITIONER

TIMOTHY B. Dyk

(Counsel of Record)

RICHARD I. WERDER, JR.

MICHAEL Doss

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005-2088

(202) 879-3939

Counsel for Amici

| Additional Counsce! listed on inside Cover]

2

WILSON - EpgSs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

Of Counsel:

RICHARD M. SCHMIDT, JR.

COHN AND MARKS

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

Counsel for American

Society of Newspaper Editors

SAM ANTAR

STEVE SADICARIO

CAPITAL CITIES/ ABC, INC.

77 West 66th Street

16th Floor

New York, New York 10023

Counsel for Capital

Cities/ ABC, Inc.

GEORGE A. VRADENLURG, III

CBS INc.

51 West 52 Street

New York, New York 10019

Counsel for CBS Ine.

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 26036

Counsel for National

Association of Broadcasters

BRENDA L. Fox

NATIONAL CABLE TELEVISION

ASSOCIATION, INC.

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for the National

Cable Television Association,

Inc.

J. LAURENT SCHARFF

REED SMITH SHAW & MCCLAY

1200 18th Street, N.W.

Washington, D.C. 20006

Counsel for Radio-Television

News Directors Association

JANE E. KIRTLEY

Suite 504

1735 Eye Street, N.W.

Washington, D.C. 20006

Counsel for The Reporters

Committee for Freedom

of the Press

LRUCE W. SANFORD

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

Washington, D.C. 20026

Counsel for Society of

Professional Journalists

MARTIN P. MESSINGER

BRYAN T. MCGINNIS

WESTINGHOUSE BROADCASTING

Co., INC.

888 7th Avenue

39th Floor

New York, New York 10106

Counsel for Westinghouse

Broadcasting Co., Ine.

QUESTION PRESENTED

Whether the First Amendment permits a federal dis-

trict court to enjoin a telecast in order to protect a de-

fendant’s right to a fair trial where there is no record

support or findings establishing that such extraordinary

relief is essential or that available alternatives are in-

adequate.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..0...2.......-...ccccccccccccccccccccccccccee i

STATEMENT OF INTEREST ...WW000000022......2eeeeeecee eee 1

THE PETITION FOR CERTIORARI SHOULD BE

SERN nen NO RN Pate cabbenRih sii iat wctitininns 1

I. THE ISSUES ARE IMPORTANT AND ARE

FREQUENTLY RECURRING .....00000000000000002.. 1

Il. THE DECISION OF THE COURT OF AP-

PEALS CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF

I 3

III. THE DECISION BELOW IS CLEARLY IN-

ET ENCES A Rn Soe ee oe 5

A. The Court Of Appeals Erred In Equating

The Presumption Against Prior Restraints

With The Standards For A Right Of Access

BR MEM MN MII scence ncccni renner ernraccocecnnece 6

B. There Has Been No Showing Of A Compel-

ling Justification For the Injunction Issued

— BRTRARS ae O SST cde ee a 10

1. The Injunction Cannot Be Justified As

Designed To Protect The Defendant’s

Right To A Fair And Impartial Jury...... 10

2. The Injunction Cannot Be Justified As

Protecting Privileged Information Or

Defendant’s Right To Counsel ................ 16

SI aii deitalcchranses hvatnsciinintnanasinanttienticsonatbonsdidkicusiieenene 20

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Alderman v. United States, 394 U.S. 165 (1969). 19

Application of Dow Jones & Co., 842 F.2d 603

(2nd Cir. 1988), cert. denied, 488 U.S. 946

CRD occa oases eiaeoera ves eters: 8

Bailey v. Systems Innovation, Inc., 852 F.2d 93

CB Cap, Fa eases islet riparnhensstatcnnses. 13

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

C2OGB) ..cscecrataichecnnaslinse cinand sidestantenintsecienecsn 8

Belo Broadcasting Corp. v. Clark, 654 F.2d 423

(Gtr Cla. CUS Bi BARR, BBE D qcvncesssicceeiesssc0.......... 6

Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.

1980) (en banc), aff’d, 452 U.S. 89 (1981)... 9

Black v. United States, 385 U.S. 26 (1966) (per

CUTE RMIDD oesccccccdticea rcs eee ae eit aiehidts oxnsss 17, 19

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

yc Me RS ___, GERRI Pen panera meee 4

Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975)

(en banc), cert. denied, 425 U.S. 911 (1976) _. 12

Carroll v. Princess Anne, 393 U.S. 175 (1968) _.... 8

Clark v. Wood, 823 F.2d 1241 (8th Cir. 1987),

cert. denied, 484 U.S. 945 (1987) —................. 20

Freedman v. Maryland, 380 U.S. 51 (1965) 9

Gannett Co. v. DePasquale, 448 U.S. 368 (1979) 7

Goldblum v. National Broadcasting Corp., 584

F.2d O06 COG Rh, BRD cect kineceves cscs. 5, 15, 16

Hunt v. National Broadcasting Co., 872 F.2d 289

(Dein Clam, Sa earache ata hasiginsss 5

In re CBS, 570 F. Supp. 578 (ED. La. 1983),

appeal dismissed, 735 F.2d 907 (5th Cir. 1984) .. 15

In re Gannett News Service, 772 F.2d 113 (5th

Cle. TOUR ccecieccree ee i 8

In re Halkin, 598 F.2d 176 (D.C. Cir. 1979)........ 4,5

In re King World Productions, 898 F.2d 56 (6th

Cir. 1990) | 5

In re Lifetime Cable, 17, Media . Rep. (BNA)

1648 (D.C. Cir. 1990) ...:........

In re Providence Journal, 820 F.2d 1342 (1st Cir.

1986), modified, 820 F.2d 1354 (1st Cir. 1987)

(en banc), cert. dismissed, 485 U.S. 693 (1988).. 5, 13

or

Vv

TABLE OF AUTHORITIES—Continued

Page

Journal Publishing Co. v. Mechem, 801 F.2d 1233

(10th Cir. 1986) ..... Bae En ogc a ew oO MEY fue acon 13

Kastigar v. United States, 406 U.S. 441 (1972)... 20

Lamont v. Postmaster General, 381 U.S. 301

ESF SESS sRGB N OLE WARREN SPE er Ae 13

Levine v. United States District Court, 764 F.2d

590 (9th Cir. 1985), cert. denied, 476 U.S. 1158

ERSTE Sage Rew ae = nape OF PRE MRNA Oe CREO 13

Louisiana ex rel. Gremillion v. NAACP, 366 US.

REE LES AR RCA RN re 13

Martin v. City of Struthers, 319 U.S. 141 (1943) . 13

Murphy v. Waterfront Comm’n of New York

Herbor, S76 U.S. SB (1964) ................................. 20

Near v. Minnesota ex rel. Olson, 283 U.S. 697

eels Nal SORT en appear en 8

Nebraska Press Ass’n v. Stuart, 427 U.S. 5389

aa acca oe ol iiiecsiahnonal passim

New York Times v. United States, 403 U.S. 7138

CREE aD CRM CUPORTR) ...........0....00.....0....... weeks 1,8

Nix v. Williams, 467 U.S. 4381 (1984) 0.000.000... 20

O’Brien v. United States, 386 U.S. 345 (1967)

SR MINNIE cn scncverscavsscsuucnsnsns en 17

Organization for a Better Austin v. . Keefe, 402

U.S. 415 (1971) . Ae SN Rally Cline Ale OD 8

Press-Enterprise v. Superior ‘Court, 478 US. 1

Se a oe 7

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

RE RETA IE AIRE ECON OAS CERRO RN 7

Segura v. United States, 468 U.S. 796 (1984) ....... 20

Shelton v. Tucker, 364 U.S. 479 (1960) 000000... 13

Sheppard v. Marwell, 384 U.S. 333 (1966) ....... 13

Silverthorne Lumber Co. v. United States, 251

I ak 20

Sinclair v. Schriber, No. 89-1875, slip op. (6th Cir.

Oct. 23, 1990) (1990 U.S. App. LEXIS 18468) .. 20

Speiser v. Randall, 357 U.S. 513 (1958) —.............. 9

Jnited States v. Beckham, 789 F.2d 401 (6th Cir.

ISG Oh SPE a ee ean ec Are mee soe ova 8

vi

TABLE OF AUTHORITIES—Continued

United States v. Ginsberg, 758 F.2d 823 (2d Cir.

SITIITTID sich lihcsphuicae slscecnetlelsindalehdaealtheelsgelinntelade eect

United Stotes v. Gurney, 558 F.2d 1202 (5th Cir.

1977), cert. denied, 435 U.S. 968 (1978) ............

United States v. Irwin, 612 F.2d 1182 (9th Cir.

I oldies nena laa ae

nu iacrcihianbdsinienSicniaseimacaehbinatbecanantesnaiddempaniantiheideebtenamacatan

United States v. Mastroianni, 749 F.2d 900 (ist

RS RA IE er Os OR RR or ea

United States v. McKenzie, 697 F.2d 1225 (5th

nS

United States v. North, 910 F.2d 843 (D.C. Cir.

ak a a ee

United States v. Poindexter, 698 F. Supp. 300

(D.D.C. 1988)

Page

20

20

20

Weatherford v. Bursey, 429 U.S. 545 (1977)....17, 18, 20

Statutes

I TEE seinsicsaceentnesersssnscscosniaciiiednigulideeilasmnebed

Es TIE ii acheslsnisinsatpepchstnstaseoaintiadhadcnnyerenniesdbadantaaia

Miscellaneous

ABA, Standards for Criminal Justice (2d ed.

Re RE a Oe RNS RAE MP c= A

V. Blasi, Toward a Theory of Prior Restraint: The

Central Linkage, 66 Minn. L. Rev. 11 (1982)...

J. Milton, Areopagitica: A Speech for the Liberty

of Unlicensed Printing to the Parliament of

England, in The Portable Milton (D. Bush ed.

ol

L. Tribe, American Constitutional Law (2d. ed.

EERE CE a SR Se ME Nien AS

C. Wright & A. Miller, Federal Practice and Pro-

cedure: Civil § 2946 (1978)

4,9

BRIEF OF AMERICAN SOCIETY OF NEWSPAPER

EDITORS, CAPITAL CITIES/ABC, INC. CBS INC,

NATIONAL ASSOCIATION OF BROADCASTERS,

THE NATIONAL CABLE TELEVISION ASSOCIATION,

INC., RADIO-TELEVISION NEWS DIRECTORS

ASSOCIATION, THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, THE SOCIETY OF

PROFESSIONAL JOURNALISTS, AND

WESTINGHOUSE BROADCASTING CO., INC.

AS AMICI IN SUPPORT OF PETITIONER '

STATEMENT OF INTEREST

These Amici are organizations that disseminate the

news and associations of journalists, broadcasters, and

cable casters. They believe that the ability of journalists

to present the news free of prior restraints by government,

and the opportunity of the public to receive such news, are

central to the First Amendment and essential for a free

society. They also believe that the decision below, if al-

lowed to stand, would seriously undermine these First

Amendment protections, not only in this case but in future

cases.

THE PETITION FOR CERTIORARI

SHOULD BE GRANTED

I. THE ISSUES ARE IMPORTANT AND ARE FRE-

QUENTLY RECURRING

This is the first case since New York Times v. United

States, 403 U.S. 7138 (1971) (per curiam), in which

a federal court of appeals has upheld the imposition of a

prior restraint on the dissemination of news. The district

court has barred petitioner Cable News Network, Inc.

(“CNN”) from publishing conversations between General

Manuel Noriega and his defense counsel, apparently taped

1 Statements of consent are on file with the Clerk of the Court.

See S. Ct. R. 37.2.

2

by the government while Noriega was in prison.* The

constitutional question is of profound significance.

The telecast at issue seeks to address a matter of con-

siderable importance: it is designed to advise the Ameri-

can public of a defendant’s claim of potentially serious

misconduct by the government in a highly publicized and

unusual prosecution of a former foreign head of state.

The effect of the district court’s order barring that tele-

cast is not confined to this case. Criminal trials are, by

their very nature, newsworthy events, and criminal trials

involving claimed misconduct of public officials, whether

foreign or domestic, are especially newsworthy. The de-

cision of the court of appeals raises the threat of censor-

ship of a broad range of journalism concerning criminal

proceedings. Thus, while the order here directly affects

only the publication of taped conversations between de-

fendant Noriega and his counsel, its implications are far-

reaching.”

The decision of the Eleventh Circuit in this case sus-

taining an injunction against publication represents an

unwarranted and unprecedented invasion of the First

Amendment rights of the news media and the public they

serve. In four distinct respects the court of appeals has

departed from established law. (1) Despite the strong

presumption against prior restraints, a presumption as

old as the Republic itself, the court of appeals has equated

the standards against prior restraint with the standard

for a First Amendment right of access and in doing so has

substantially diluted the rule against prior restraints.

(2) The court of appeals has improperly placed upon the

“The present case does not involve the constitutionality of the

district court’s initial oral order designed to provide the court with

time to deliberate on the issues raised by the motion. See Tr. 78-81

(Nov. 8. 1990 Hearing). Nor does this case involve the constitu-

tionality of any contempt citation against CNN for having broad-

cast a portion of the tapes. Sec Tr. 126-27 (Nov. 9, 1990 Hearing).

3% See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976)

(“T]he protection against prior restraint should have particular

force as applied to reporting of criminal proceedings... .’’).

3

news organization the burden of showing that no injunc-

tion should issue, contrary to the decision of this Court

in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976),

and numerous court of appeals decisions. (3) The court

of appeals has erroneously held that an admittedly specu-

lative showing of injury is sufficient to justify a prior

restraint. (4) The court of appeals has failed to con-

sider alternative means for protecting both the defend-

ant’s right to an impartial jury, his right to counsel,

and the interests of the United States in maintaining the

prosecution.*

These Amici urge that this Court grant certiorari in

this case and order expedited briefing and argument on

the merits.

II. THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH DECISIONS OF THIS COURT

AND OTHER COURTS OF APPEALS

The Eleventh Circuit’s decision conflicts with decisions

of this Court and of other Courts of Appeals that have

uniformly invalidated prior restraints designed to pro-

4 As the court of appeals noted, Mr. Rubino, counsel for Noriega,

“cooperated with CNN by reviewing an audio tape of conversa-

tions purportedly between Noriega and Ms. Cristina Machin

(“Machin’’) (Rubino’s secretary and interpreter) and verified the

authenticity of the tape recording. A portion of the interview

between a CNN reporter and Rubino (together with Machin) in

Rubino’s office appears in the telecast.” Cable News Network, Inc.

and Turner Broadcasting System, Inc. v. Manuel Antonio Noriega

and the United States of America, No. 90-5927, slip op. at 5 (11th

Cir. Nov. 10, 1990) (hereinafter “CNN slip op.”). This case thus

presents the extraordinary spectacle of a defendant in a criminal

case who has cooperated in the production of a news broadcast and

then seeks to enjoin the broadcast on the ground that its dissemi-

nation will deny him the right to a fair trial. These unusual cir-

cumstances suggest that the defendant’s injunctive request should

not have been seriously entertained in the first place since de-

fendant failed to satisfy the traditional standards for equitable

relief. See C. Wright & A. Miller, Federal Practice and Procedure:

Civil § 2946 (1973) (recognizing unclean hands as a basis for deny-

ing equitable relief).

4

tect fair trial rights. Although in Nebraska Press the

Court may not have completely foreclosed all prior re-

straints,’ it recognized that such an order would survive

constitutional scrutiny only in the most extraordinary

circumstances, id. at 558-69, that is, where it was “clear

that further publicity, unchecked, would so distort the

views of potential jurors that 12 could not be found who

would, under proper instructions, fulfill their sworn duty

to render a just verdict exclusively on the evidence pre-

sented in open court.” Jd. at 569.

Since this Court’s decision in Nebraska Press, the

courts of appeals have consistently rejected claims that a

prior restraint on the press is justified based on the need

to protect a defendant’s right to a fair trial. In CBS v.

United States District Court, 729 F.2d 1174 (9th Cir.

1984), for example, the Ninth Circuit vacated an order

restraining CBS from “disseminating and/or broadcast-

ing any portion of any and all government surveillance

tapes generated in the investigation and prosecution” of

John DeLorean. /d. at 1176. The Ninth Circuit noted

that “federal and state appellate courts have held with-

out exception that trial court restraints on the report-

5 The majority opinion did not state that such prior restraints

are never constitutional, but three members of the Court did articu-

late that view. 427 U.S. at 572-73 (Brennan, J., concurring, joined

by Stewart and Marshall, JJ.). The District of Columbia Circuit

has concluded that “‘the practical impact of the rule announced

by [the majority| . .. is to outlaw all prior restraints in fair

trial/free press cases,’” In re Halkin, 598 F.2d 176, 183 n.14 (D.C.

Cir. 1979), quoting Goodale, The Press Ungagged: The Practical

Effect on Gag Order Litigation of Nebraska Press Association v.

Stuart, 29 Stan. L. Rev. 497, 498 (1977). Sce also L. Tribe, Amer-

ican Constitutional Law § 12-11 at 858-59 (2d ed. 1988) (the ma-

jority opinion in Nebraska Press “suggests that the Court has gone

further and announced a virtual bar to prior restraints on report-

ing news about crime”); 2 ABA Standards for Criminal Justice

Chap. 8, Standard 8-3.1 (2d ed. 1980) (“ABA Standards’) (“No

rule of court or judicial order shall be promulgated that prohibits

representatives of the news media from broadcasting or publish-

ing any information in their possession relating to a criminal

case.”’).

5

ing of judicial proceedings failed to meet the require-

ments set forth in Nebraska Press.” Id. at 1178.

Similarly, in United States v. McKenzie, 697 F.2d

1225 (5th Cir. 1983), the Fifth Circuit held that a

prior restraint of a CBS 60 Minutes news program was

not justified by a defendant’s claim that broadcast of the

program would impair his Sixth Amendment right to a

fair trial. 7d. at 1227. The Fifth Circuit stressed that

in imposing the prior restraint, the district court had

failed to make specific factual findings as to the poten-

tial prejudice to the defendant arising from the broad-

east and the inadequacy of alternative methods of pro-

tecting the defendant’s interests. /d. Other decisions

have also held prior restraints unconstitutional. The

ruling of the Eleventh Circuit in this case cannot be

squared with these authorities.

Ill. THE DECISION BELOW IS CLEARLY INCORRECT

The district court’s order is a classic prior restraint

on the press, and the extraordinary circumstances neces-

sary to justify such a restraint are not even remotely

established by this record.

6 See In re Providence Journal, 820 F.2d 1342, 1348 (1st Cir.

1986) (“When ... the prior restraint impinges upon the right of

the press to communicate news and involves expression in the form

of pure speech ... the presumption of unconstitutionality is vir-

tually insurmountable.”), modified, 820 F.2d 1354 (1st Cir. 1987)

(en banc), cert. dismissed, 485 U.S. 693 (1988); In re King World

Productions, 898 F.2d 56 (6th Cir. 1990) (vacating injunction

restraining broadcast of scenes allegedly obtained by illegal sur-

reptitious surveillance); In re Lifetime Cable, 17 Media L. Rep.

(BNA) 1648 (D.C. Cir. 1990) (vacating order restraining broad-

cast of minor’s description of alleged sexual abuse); Hunt v.

National Broadcasting Co., 872 F.2d 289 (9th Cir. 1989) (repect-

ing injunction based on claim that a docudrama’s portrayal of a

murder conviction might prejudice a trial on a second murder) ;

Goldblum v. National Broadcasting Corp., 584 F.2d 904 (9th Cir.

1978) (vacating a trial court order demanding that a television

network turn over a film to the district court so that the court

could view it for “inaccuracies’’); see also In re Halkin, 598 F.2d

at 183 n.14 (concluding that “practical impact” of Nebraska Press

“is to outlaw all prior restraints in fair trial/free press cases’’).

6

A. The Court Of Appeals Erred In Equating The Pre-

sumption Against Prior Restraints With The Stand-

ards For A Right Of Access By The News Media.

Although the court of appeals acknowledged that the

district court’s order infringed “CNN’s First Amend-

ment right to be free from prior restraints against the

broadcasting of newsworthy information,” CNN slip op.

at 2, it nonetheless relied almost exclusively on cases in-

volving issues of access to trial proceedings or documents,

rather than prior restraints on publication of informa-

tion, in developing a legal standard for its ruling.’ The

court of appeals thus confused the standards for deter-

mining a district court’s ability to control who has ac-

cess to a court proceeding or court document with a

court’s ability to control what the media does with in-

formation it has already obtained. The standards in

these two areas of law are not the same.

In the area of access, a trial court may permissibly

weigh a defendant’s Sixth Amendment right to a fair

trial against the right of the press and public to gain

access to trial proceedings or documents. In unusual cir-

cumstances, where a court specifically finds that (1) pub-

lie access to trial proceedings or documents will likely

prejudice the defendant’s right to a fair trial, (2) denial

of access will prevent the prejudice, and (3) no alterna-

tive to denial of access would adequately protect against

* The court of appeals quoted extensively from United States v.

Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968

(1978), which, as the cited portion in the decision below indicated,

pertains not to prior restraints on publication, but instead to a

trial court’s ability to manage the courtroom by limiting “right of

access to criminal proceedings.” Jd. at 1209. The court of appeals

also misdescribed Belo Broadcasting Corp. v. Clark, 654 F.2d 423

(5th Cir. Unit A Aug. 1981). The Fifth Circuit in that case did

not deny broadcasters the right to broadcast audiotapes that were

already in their possession, but instead denied the broadcaster’s

request to copy the tapes from the trial record. Thus, the Fifth

Circuit in Belo Broadcasting did not “determin{e] that the Consti-

tution did not accord the broadcasting stations the right to play

the tapes over the air waves,’ CNN slip op. at 10; instead, the

court in that case merely determined that the broadcasters did not

have the right to demand access to the tapes.

7

the perceived harm, a court may limit the press and

public’s access to trial proceedings or documents. L’ress-

Enterprise v. Superior Court, 478 U.S. i, 14 (1986).

This case, however, does not pertain to access to trial

proceedings or documents at all: CNN already has the

tapes, and the only issue is whether the district court can

constitutionally restrain CNN from broadcasting infor-

mation in its possession. In short, it directly raises the

issue of whether the district court can impose a prior

restraint on CNN. Whatever authority a court may

have to regulate access to information about a judicial

proceeding, no court, absent the most extraordinary cir-

cumstances, may constitutionally restrain the press from

publishing information already received.

This Court repeatedly has distinguished between cases

pertaining to right of access to trials and documents and

those imposing prior restraints. See Richmond News-

papers, Inc. v. Virginia, 448 U.S. 555, 586 (1980) (dis-

tinguishing right-of-access cases from prior-restraint

cases, where “free speech protections are almost insur-

mountable”). As Justice Stevens stated in Press-Hnter-

prise, 478 U.S. at 17:

Although perhaps obvious, it bears emphasis that the

First Amendment right asserted by petitioner [to

have access to a preliminary hearing] is not a right

to publish or otherwise communicate information law-

fully or unlawfully acquired. That right, which lies

at the core of the First Amendment and which erased

the jegacy of restraints on publication against which

the drafters of that Amendment rebelled, may be over-

come only by a governmental objective of the highest

order attainable in no less intrusive way. The First

Amendment right asserted by petitioner in this case,

in contrast, is not the right to publicize information

in its possession, but the right to acquire access

thereto. (citations omitted) (Stevens, J., dissenting) .”

’ Accord Gannett Co. v. DePasquale, 4423 U.S. 368, 393 n.25

(1979); id. at 399 (excluding “members of the press from the

courtroom... differs substantially from the ‘gag order’ at issue in

Nebraska Press’’) (Powell, J., concurring).

8

With the exception of the Eleventh Circuit in this case,

the courts of appeals have uniformly recognized this dis-

tinction.”

The exacting standards for the imposition of prior re-

straints far exceed the showing required for denial of a

right of access: prior restraints are uniformly subjected

to more stringent (and almost always fatal) scrutiny.

In Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931),

this Court recognized that “it has been generally, if not

universally, considered that it is the chief purpose of |the

constitutional guarantee of freedom of the press] to pre-

vent previous restraints upon publication.” /d. at 713.

That a system of prior restraint is repugnant to the

First Amendment and therefore is presumptively un-

constitutional has been the unwavering position of

the Court ever since."" In New York Times v. United

States, 403 U.S. 713 (1971), the Court found that even

the most pressing concerns of national security urged by

the government in that case did not justify the imposi-

tion of a prior restraint. And in Nebraska Press, the

Court, noting that prior restraint of publication is ‘the

most serious and the least tolerable infringement on

First Amendment rights,” 427 U.S. at 559, struck down

a restraining order designed to protect Sixth Amendment

fair trial rights in a murder case, making clear that

9 See, e.g., Application of Dow Jones & Co., 842 F.2d 603 (2d

Cir. 1988), cert. denied, 488 U.S. 946 (1988) (order limiting access

of press to extrajudicial statements of counsel not a prior re-

straint); In re Gannett News Service, 772 F.2d 113, 116 (5th

Cir. 1985) (upholding district court’s order sealing evidence be-

cause “temporary denial of access such as involved here constitutes

no form of prior restraint”) ; United States v. Beckham, 789 F.2d

401, 409 (6th Cir. 1986) (denial of news media’s request to copy

tape recordings admitted as evidence in criminal trial upheld).

10 See, e.g., Bantam Books, Inc. v. Suilivan, 372 U.S. 58, 70

(1963); Carroll v. Princess Anne, 393 U.S. 175, 181 (1968);

Organization for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971)

(injunction imposing prior restraint is “an impermissible restraint

on First Amendment rights”).

9

such orders are rarely, if ever, permissible. The Court

noted that ‘“|t|he Court has interpreted {the guarantees

of the First and Fourteenth Amendments] to afford spe-

cial protection against orders that prohibit the publication

or broadcast of particular information or commentary—

orders that impose a ‘previous’ or ‘prior’ restraint on

speech.” /d. at 556.

Pricr restraints uniquely threaten protected expres-

sion. As the Court explained in Nebraska Press, sanc-

tions imposed after publication are subject to numerous

protections, and their impact does not become fully op-

erative until after appellate review. In contrast, a prior

restraint “has an immediate and irreversible sanction.

If it can be said that a threat of criminal or civil sanc-

tions after publication ‘chills’ speech, prior restraint

‘freezes’ it at least for the time.” '' Those who might

otherwise publish and risk punishment will generally be

unwilling to defy an injunction and thus face the con-

tempt power."

In short, the party claiming that a prior restraint is

justified bears the ultimate burden of justifying the re-

straint, and this burden is an extraordinarily heavy

one.”

11427 US. at 559, citing A Bickel, The Morality of Consent 61

(1975).

12 Bernard v. Gulf Oil Co., 619 F.2d 459, 460 n.15 (5th Cir)

1980) (en banc), aff'd, 452 U.S. 89 (1981). Justice Brennan has

provided a catalogue of further reasons for presuming that prior

restraints on expression are unconstitutional. Nebraska Press,

427 U.S. at 589-90, quoting T. Emerson, The System of Freedom

of Expression 506 (1970).

13 See Nebraska Press, 427 U.S. at 561-65; see also Freedman v.

Maryland, 380 U.S. 51, 58 (1965) (burden of justifying restriction

of speech falls on the censor); Speiser v. Randall, 357 U.S. 513,

525-26 (1958); L. Tribe, American Constitutional Law § 12-39 at

1059 (2d ed. 1988).

10

B. There Has Been No Showing Of A Compelling Jus-

tification For the Injunction Issued Here.

This Court has never upheld a prior restraint as nec-

essary to protect a defendant’s right to a fair trial, and

the defendant in this case has not come close to estab-

lishing that this case qualifies as a first exception. Two

separate “fair trial’ justifications have been offered here

for the injunction—the need to protect the defendant’s

right to an impartial jury and the need to protect the

defendant’s right to counsel. Neither the Motion for In-

junction filed by defendant Noriega, nor the subsequent

hearings before the district court, came close to showing

that a prior restraint was justified on either ground.

1. The Injunction Cannot Be Justified As Designed

To Protect The Defendant’s Right To A Fair

And Impartial Jury.

Defendant Noriega’s Motion for Injunction did not pre-

sent any facts refuting his ability to secure a fair and

impartial jury. It did not address the number of indi-

viduals in the jury pool or the likelihood that they would

hear the particular CNN broadcast, nor did it show that

a broadeast of such material would make it impossible to

select an impartial jury. See Memorandum in Support of

Motion for Injunction at 5-7 (Nov. 1990) (hereinafter

“Mem. in Support of Injunction”). The motion also made

virtually no effort to show that alternatives were un-

available to protect Noriega’s right to a fair trial. It

simply noted that “exposure of potential jurors to the

defendant’s own statements and discussions of trial

strategy will make selecting an impartial jury proble-

matic.” Jd. at 6-7. Defendant Noriega in fact claimed

that many of the attorney-client communications would

not even be understandable without an explanation by

defense counsel as to the context of the communication,

which counsel was unwilling to provide. Tr. 66-67 (Nov.

8, 1990 Hearing).

The district court order and court of appeals opinion

are also largely silent on these issues. Although recog-

11

nizing that this Court’s “pronouncements on the doctrine

of prior restraint suggests that a factual inquiry is re-

quired,” the district court made no findings concerning

the potential for the broadcast to so taint the jury pool

as to make selection of an impartial jury impossible."

And the court of appeals itself recognized that, given the

state of the record, it was “required to speculate” as to

the threat posed by the broadcast to defendant Noriega’s

right to a fair trial. CNN slip op. at 17.

A similar absence of factual findings in Nebraska Press

led this Court to strike down a prior restraint. The prior

restraint before the Court in that case was prompted by

intense and pervasive publicity surrounding a mass sex

murder in a town of 850 people. The defendant was ar-

rested the day after the crime amid “widespread news

coverage, by local, regional, and national newspapers,

radio and television stations.” 427 U.S. at 542. Two days

later, the trial court, at the request of the prosecutor and

the defense attorney, entered an order restricting press

coverage to permit the impaneling of an impartial jury.

As ultimately modified and presented to this Court, the

order barred only the reporting of the existence and con-

tents of confessions or admissions by the defendant. /d.

at 545. The Court unanimously agreed that even this

limited order was unconstitutional, stating that there was

“little in the record” to support such an extraordinary

remedy. /d. at 563.

Under the present facts, there is no basis for a prior

restraint to protect the defendant’s right to an impartial

jury. The district court made no finding that the over-

14 United States v. Noriega, No. 88-0079-Cr, Supplemental Order

at 3-7 (S.D. Fla. Nov. 9, 1990) (hereinafter “Supplemental

Order”). The district court appeared to recognize that its decision

was inadequate in this regard, stating: “If the invasion or the

propogation of the invasion [of attorney-client communications |]

is not... in and of itself legally sufficient to justify enjoining,

certainly it would appear necessary to look te the surrounding facts

to determine the nature and extent of potential damage before

dissemination.” Supplemental Order at 5.

12

whelming majority of the jury pool would view the tele-

cast. The district court here never determined that, even

if the allegations made by defendant Noriega regarding

the contents of the tap recordings were true and the poten-

tial jurors were uniformly exposed to it, the telecast

would have led “surely” and inevitably to an unfair

trial.” A trial court is not entitled to presume that even

“intense and pervasive” publicity involving the disclosure

of information damaging to the defense would result in

an unfair trial. Nebraska Press at 562-65." Rather, the

triai court must rely on facts demonstrating that, beyond

doubt, “further publicity, unchecked, would so distort the

views of potential jurors that 12 could not be found who

would, under proper instructions, fulfill their sworn duty

to render a just verdict exclusively on the evidence pre-

sented in open court.” Jd. at 569. No such showing was

made here.

Moreover, even if such a showing of harm had been

made, the district court failed adequately to consider

whether there were alternative, less-restrictive, methods

of protecting the defendant’s right to an impartial jury.

Nebraska Press requires a trial court “to determine the

probable efficacy of measures short of prior restraint on

'5 See Supplemental Order at 4; United States v. Noriega, No.

88-0079-Cr, Order at 5-6 (S.D. Fla. Nov. 8, 1990) (hereinafter

“Nov. 8 Order”’).

16 As Nebraska Press makes clear, a trial judge is not entitled to

assume that the exposure of potential jurors to publicity makes

them incapable of rendering an impartial verdict:

[P]retrial publicity, even if pervasive and concentrated, cannot

be regarded as leading automatically ... to an unfair trial.

The decided cases “cannot be made to stand for the proposition

that juror exposure to information about a state defendant’s

prior convictions or to news accounts of the crime with which

he is charged alone presumptively deprives the defendant of

due process.”

Nebraska Press, 427 U.S. at 565, quoting Murphy v. Florida, 421

U.S. 794, 799 (1975). See also Calley v. Callaway, 519 F.2d 184,

205-06 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911

(1976).

13

the press and speech.” Jd. at 565.'7 In making this deter-

mination, the trial court must bear in mind that the Sixth

Amendment right to a fair trial is guarded by a formid-

able array of protective measures, including change of

venue, trial postponement, searching voir dire examination,

curative jury instructions, and sequestration. /d. at 563-

64. This Court has found these measures adequate to

withstand huge barrages of publicity adverse to the de-

fendant. Even where there has been ‘massive pretrial

publicity” in the trial court, the Court has concluded that

“these procedures would have been sufficient to guarantee

[the defendant] a fair trial ....” Sheppard v. Maxwell,

384 U.S. 333, 358 (1986). Accordingly, any benefits from

intruding upon First Amendment freedoms to protect fair

trial right here were “conjectural .. . in light of the alter-

native procedures available to the trial judge.” '*

The district court here did not address any of these

potential alternative measures for ensuring defendant

Noriega’s right to an impartial jury. That fact alone

makes the imposition of a prior restraint intolerable un-

der the First Amendment, as Nebraska Press and deci-

sions of other circuits following Nebraska Press make

clear. Nebraska Press, 427 U.S. at 563-65; Journal Pub-

lishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.

1986): In re Providence Journal, 820 F.2d at 1351:

CBS, 729 F.2d at 1182; Levine v. United States District

Court, 764 F.2d 590, 595, cert. denied, 476 U.S. 1158

(1986); Bailey v. Systems Innovatien, Inc., 852 F.2d 93,

99 (3rd Cir. 1988).

17 In other contexts, as well, this Court has repeatedly held that,

where government action infringes upon First Amendment liber-

ties, the action is unconstitutional if the asserted government inter-

est may be adequately served by alternative measures less offensive

to the First Amendment. Shelton v. Tucker, 364 U.S. 479, 488

(1960). See also Louisiana ex rel. Gremillion v. NAACP, 366 U.S.

293, 296-97 (1961); Lamont v. Postmater General, 381 U.S. 301,

310 (1965) (Brennan, J., concurring) ; Martin v. City of Struthers,

319 U.S. 141 (1943).

18 ABA Standards at 30 (commentary to Standard 8-3.1).

14

In failing to make factual findings concerning the po-

tential taint of the jury pool and the availability of less-

restrictive alternatives to a prior restraint, the district

court and court of appeals made much of the fact that

CNN did not produce the tape recordings in its posses~-

sion for review. Supplemental Order at 2-5; CNN shp

op. at 16-17. The district court stated:

It seems fundamentally unfair to allow CNN to bene-

fit from its refusal to disclose the contents of the

tapes to the court—that is, to allow CNN to argue

that no prior restraint should issue because no clear

and immediate harm is apparent when the only rea-

son that no clear and immediate harm yet appears is

because CNN has so far prevented this court from

reviewing the content of the tapes in its possession.

Supplemental Order at 3. That CNN failed to produce

the tape recordings, however, cannot provide a basis for

the imposition of a prior restraint.

First, there was simply no need for the district court

to view the tapes. Even assuming that they contained

highly damaging information, there was no basis for a

prior restraint. The general subject matter of the tapes

was known to the district court. By focusing on the

content of the tapes, the Court ignored its obligation to

consider far more relevant factual questions, and the

defendant’s obligation to make a specific and compelling

factual showing tha‘. a prior restraint would be justified

even assuming the exposure of damaging information.

Second, by placing the onus on CNN to come forward

with information, the court improperly shifted the bur-

den to CNN to justify its broadcast. As noted above, the

burden of justifying a prior restraint rests always with

the movant.

Finally, the district court failed adequately to explain

why it could not obtain the tape recordings from the gov-

ernment. To be sure, the district court stated that

“(rjequiring Government production would require the

Magistrate to review all of the recorded phone calls be-

15

tween Noriega and his attorneys—potentially hundreds

of calls between Noreiga and his attorneys—in search of

damaging attorney-client communications.” Supplemen-

tal Order at 3.'° That review of the CNN tapes would be

“more efficient” than securing the tapes from the gov-

ernment—a step that will eventually be required in any

event to discover the extent of the government’s miscon-

duct—hardly justifies a prior restraint.°° It is not sur-

prising that other courts have rejected the claim that the

need for access to unpublished information justifies prior

restraints.*!

The district court’s order that CNN produce the tape

recordings for its review also raises the spectre of im-

permissible judicial censorship. Once a court commands

submission of proposed broadcast material for evaluation

of whether the material may properly be disseminated,

the power to edit the submission follows ineluctably.

With the materials in hand, the court no longer must

approve or disapprove the whole, but ean pick and

choose, approving and disapproving a particular broad-

cast sentence by sentence. As then Judge (now Justice)

'8 We note that the government has supplied a log of these tapes

to the district court, although the contents of this log were never

disclosed to petitioner CNN. See Tr. 105-06 (Nov, 9, 1990

Hearing).

20 The district court also noted that it “is entirely possible that

CNN is in possession of communications between Noriega and his

lawyers ... which the Government did not record.” This finding is

entirely speculative, however. No suggestion was made at the hear-

ing before the district court to indicate that CNN had obtained

any recordings other than those made by the government. See Tr.

97-99 (Nov. 8, 1990 Hearing).

21 See Goldblum, 584 F.2d at 906 (holding production order of

film unconstitutional where “[t]he express . . . purpose of the dis-

trict court’s order . . . was to determine whether or not to issue

an injunction suspending its broadcast”); Jn re CBS, 570 F.Supp.

578, 581 (E.D. La. 1983) (holding unconstitutional a “production

order .. . to aid the court in deciding whether to enjoin the sched-

uled broadcast”), appeal dismissed, 735 F.2d 907 (5th Cir. 1984).

16

Kennedy explained in similar circumstances in Goldblum,

584 F.2d at 907:

The district court proceedings . . . intervened in the

editorial process by ordering .. . the broadcasting

company to produce a film just before its scheduled

broadcast so that it could be examined for inaccura-

cies. A procedure thus aimed toward prepublication

censorship is an inherent threat to suppression, one

that chills speech.”

The censor’s power to edit need not, and typically does

not, rest on formal autohrity to edit. Sufficient is the

power to block publication of the material as submitted,

while suggesting that if only suitable modifications were

made, the new text would receive the imprimatur. A

federal judge rests his editorial suggestions on the foun-

dation of power to order that the publication not issue on

pain of contempt sanctions.** Such editorial suggestions

are not easily distinguished from commands.”

2. The Injunction Cannot Be Justified As Protect-

ing Privileged Information or Defendant’s Right

To Counsel.

While the court below also sought to justify the in-

junction as designed to protect the defendant’s right to

counsel, Supplemental Order at 2-4, no showing was made

that the prior restraint imposed here was necessary to

preserve the privileged nature of Noriega’s conversations

with members of his legal defense team or his Sixth

Amendment right to effective assistance of counsel.

22 As Milton wrote more than three hundred years ago, the pub-

lication that emerges comes to the reader or viewer “under the

wardship of an overseeing fist.” J. Milton, Areopagitica: A Speech

for the Liberty of Unlicensed Printing to the Parliament of Eng-

land, in The Portable Milton 151, 180 (D. Bush ed. 1949).

*3 If the suggestions are followed and no injunction issues, the

censorship will almost certainly escape appellate review. Cf. Gold-

blum, 584 F.2d at 906 n.2.

24 See V. Blasi, Toward a Theory of Prior Restraint: The Central

Linkage, 66 Minn. L. Rev. 11, 80 (1982).

17

Governmental intrusions into private communications

between criminal defendants and their lawyers can in-

hibit free exchanges between defendant and counsel,

Weatherford v. Bursey, 429 U.S. 545, 554-55 n.4 (1977),

and potentially jeopardize constitutional values. Jd. at

562-63 (Marshall, J., dissenting).** They may, under cer-

tain circumstances, deprive defendants of their Sixth

Amendment rights and require vacation of their convic-

tions.”°

Here, however, there is a serious question as to

whether the attorney-client privilege has been waived.

The court of appeals recognized that there was no show-

int in the district court that Noriega’s attorney-client

privilege was violated since, among other things, Nori-

ega may well have waived his privilege so that “the

privilege may not be assertable.” CNN slip op. at 16.

Even if a showing had been made that the privilege

had been preserved, Noriega’s Sixth Amendment right to

effective assistance of counsel or the attorney-client

privilege has already been violated by the government’s

creation of the tapes, and that violation is already com-

plete. The district court clearly acknowledged as much,

stating that the interest in ensuring the confidentiality

of these communications “has already been frustrated by

the very fact of invasion [by the government].” Nov. 8

Order at 2-3. There is no evidentiary basis for a find-

ing that publication would have any incremental ef-

fect whatsoever on the freedom with which Noriega will

25Such intrusions can prejudice a defendant if information

gained from the interference is used against him at trial. Preju-

dice can also result “from the prosecution’s use of confidential

information pertaining to the defense plans and strategy, from

government influence which destroys the defendant’s confidence in

his attorney, and from other actions designed to give the prosecu-

tion an unfair advantage at trial.” United States v. Irwin, 612

F.2d 1182, 1187 (9th Cir. 1980).

26 See id. at 558; Black v. United States, 385 U.S. 26 (1966) (per

curiam); O’Brien v. United States, 386 U.S. 345 (1967) (per

curiam).

18

in the future discuss defense strategy and other issues

with his counsel. Either the recording will cease, or con-

tinued recording—whether or not the recordings are

published—will inhibit the defendant’s communications.

Publication of the tapes wili also have no constitution-

ally significant impact on the steps necessary to pro-

tect Noreiga’s Sixth Amendment right to effective as-

sistance of counsel at his eventual trial. To the extent

that the government, in creating the tapes, invaded

Noriega’s attorney-client privilege or violated his Sixth

Amendment rights, protective steps will be required

whether or not the tapes are published.*’ If the govern-

ment is found to have acted improperly in creating the

tapes, it will likely be required to show—by demonstrat-

ing lack of prosecutorial access, nonuse of the taped con-

versations, or otherwise—that there has been no prej-

udice to defendant Noriega.** Neither the district court

nor the court of appeals cited any authority for the prop-

osition that a private party’s publication of the tapes

would in any way preclude, or make more difficult or less

effective, a later assertion by Noriega of the attorney-

client privilege.” Surely a prior restraint cannot be jus-

tified, as the district court did, as merely a “symbolic

and prophylactic” act.*°

27 Weatherford v. Bursey, 429 U.S. at 554-56; see, e.g., United

States v. Kelly, 790 F.2d 130, 136-88 (D.C. Cir. 1986); United

States v. Mastroianni, 749 F.2d 900, 907-08 (1st Cir. 1984).

28 Neither Noriega nor the government has questioned the scope

of the district court’s authority to impose procedural safeguards

in the trial to preserve the privileged nature of Noriega’s com-

munications with his lawyers and to protect his Sixth Amendment

right to counsel. Noriega, in fact, expressly recognized the dis-

trict court’s ability to fashion “appropriate relief” for any invasion

of his Sixth Amendment rights. Mem. in Support of Injunction at

6 n.1. ‘

29 Cf. 18 U.S.C. § 2517(4) (“No otherwise privileged wire, oral,

or electronic communication intercepted in accordance with, or in

violation of, the provisions of this chapter shall lose its privileged

character.” ).

30 Nov. 8 Order at 3.

19

While the United States speaks of preserving defend-

ant Noriega’s right to a fair trial by the injunction," it

is obvious that the government supports the injunction

as necessary to enable it to go forward with the prose-

cution. No case of which we are aware has authorized

a prior restraint to protect the government’s right to

prosecute, to enhance its ability to prosecute, or to mini-

mize the procedural hurdles which the government must

overcome to present certain pieces of evidence in a crimi-

nal trial. Such a restraint would not be appropriate. The

government’s “right” to prosecute Noriega, of course, is

not protected by the Bill of Rights, and the government

has wholly failed to establish that an injunction for this

purpose is necessary on the facts presented here.

Publication may, to be sure, give rise to an additional

avenue of proseeutorial access to the conversations and

information contained in the tapes. To that extent, it

may impose an additional burden of rebuttal on the gov-

ernment.” But the potential additional burden of re-

buttal which publication of the tapes might create for the

government is a common problem. Evidence that origin-

ally came into existence or that came to light through

some form of police or prosecutorial misconduct often is

then widely disseminated in the media and through other

means. Prosecutors have thus had extensive experience

with the need to demonstrate that their evidenes is not

tainted by improper electronic surveillance,** by improper

31 Brief for the United States at 6, Cable News Network, Inc.

and Turner Broadcasting System, Inc. v. Manuel Antonio Noriega

and the United States of America, No. 90-5927 (11th Cir. Nov. 10,

1990).

32 In this case, for example, in order to enhance its ability to

show the absence of taint on the prosecution, the Department

of Justice has apparently already taken steps to keep the prosecu-

tion team from hearing or reading news reports of the contents of

the tapes, and the Department would be in a position to attest to

that fact by affidavit in further judicial hearings on this question.

Tr. 3-4 (Nov. 10, 1990 Hearing).

33 See Black, 385 U.S. at 27-29 (1969); Alderman v. United

States, 394 U.S. 165, 180-85 (1969); Sinclair v. Schriber, No. 89-

20

use of undercover agents,** by improper reliance on im-

munized testimony,” or by other types of police or prose-

cutorial misconduct.** And the courts have had corres-

pondingly extensive experience in evaluating the suffi-

ciency of the proof offered in such circumstances and

deciding whether the prosecution’s case is free from

taint. The fact that the original source of the taint has

become known to the public, through the media or other-

wise, has never been thought to necessarily preclude pros-

ecution, and the techniques employed by the prosecutors

and courts to avoid the taint in these analogous situa-

tions are equally applicable here.*

There was no evidence—and no finding—that the ju-

dicious employment of such procedures by the prosecu-

tion and the district court would be insufficient to pro-

tect both the defendant’s right to counsel and the possi-

bility that the government could pursue its case.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted, and the case should be set

for expedited briefing and argument.

1875, slip op. (6th Cir. Oct. 23, 1990) (1990 U.S. App. LEXIS

18468) ; Clark v. Wood, 823 F.2d 1241, 1249-50 (8th Cir. 1987),

cert. denied, 484 U.S. 945 (1987).

34 See Weatherford v. Bursey, 429 U.S. at 554-56; United States

v. Ginsberg, 758 F.2d 8238, 833-34 (2d Cir. 1985).

35 See Kastigar v. United States, 406 U.S. 441, 460-62 (1972);

Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52,

79 & n.18 (1964); United States v. North, 910 F.2d 8438, 853-55

(D.C. Cir. 1990).

36 See Segura v. United States, 468 U.S. 796, 804-05 (1984);

Nix v. Williams, 467 U.S. 481, 441-44 (1984); Silverthorne Lumber

Co. v. United States, 251 U.S. 385, 392 (1920).

37 See, e.g., United States v. Poindexter, 698 F. Supp. 300, 312-

13 (D.D.C. 1988) ; United States v. North, 910 F.2d at 855-56.

Of Counsel:

RICHARD M. SCHMIDT, JR.

COHN AND MARKS

21

Respectfully submitted,

TIMOTHY B. DYK

(Counsel of Record)

RICHARD I. WERDER, JR.

MICHAEL Doss

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005-2088

(202) 879-3939

Counsel for Amici

J. LAURENT SCHARFF

REED SMITH SHAW & McCLAY

1200 18th Street, N.W.

1333 New Hampshire Ave., N.W. Washington, D.C. 20006

Washington, D.C. 20036

Counsel for American

Society of Newspaper Editors

SAM ANTAR

STEVE SADICARIO

CAPITAL CITIES/ABC, INC.

77 West 66th Street

16th Floor

New York, New York 10023

Counsel for Capital

Cities/ABC, Inc.

GEORGE A. VRADENBURG, III

CBS INc.

51 West 52 Street

New York, New York 10019

Counsel for CBS Ince.

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for National

Association of Broadcasters

BRENDA L. Fox

NATIONAL CABLE TELEVISION

ASSOCIATION, INC.

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for the National

Cable Television Association,

Ine.

Counsel for Radio-Television

News Directors Association

JANE E. KIRTLEY

Suite 504

1735 Eye Street, N.W.

Washington, D.C. 20006

Counsel for The Reporters

Committee for Freedom

of the Press

BRUCE W. SANFORD

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for Society of

Professional Journalists

MARTIN P. MESSINGER

BRYAN T. MCGINNIS

WESTINGHOUSE BROADCASTING

Co., INC.

888 7th Avenue

39th Floor

New York, New York 10106

Counsel for Westinghouse

Broadcasting Co., Inc.