United States v. Cable News Network, Inc.

OPINION RE CRIMINAL CONTEMPT

THIS CAUSE comes before the court upon the filing of an Information pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure charging the Defendant, CABLE NEWS NETWORK, INC. (“CNN”), with willfully violating this court’s orders prohibiting it from publishing tape recorded conversations between Noriega and his defense team. It is alleged that on November 9 and 10, 1990, CNN broadcast such conversations acting in criminal contempt of the authority of the United States District Court in violation of 18 U.S.C. § 401(3). As this matter progressed towards trial, the court, though not required to do so in a case of this type, raised the question of whether counsel would prefer to have the matter proceed in another division. The suggestion was declined. As the matter got closer to trial, the court offered to empanel an advisory jury to try the issues of fact. Neither side accepted. On the morning trial was to begin, the court offered to empanel an advisory jury or, if desired, to empanel a regular jury to decide *1551 the issues to be presented. Neither side accepted. The court then commenced a non-jury trial on September 13, 1994. The trial continued through September 16, 1994, when the court took the matter under advisement.

BACKGROUND

On November 7,1990, General Manuel Noriega filed an emergency motion seeking to enjoin CNN from broadcasting tape recordings of Noriega’s attorney-client conversations. The recordings were made by officials at the Metropolitan Correction Center (“MCC”) where Noriega was incarcerated. Noriega learned that CNN possessed at least one attorney-client conversation when, after asking Frank Rubino, Noriega’s lead counsel, for an interview, CNN personnel appeared at Rubino’s office and played a tape of a conversation between Noriega and certain members of his defense team. The conversation involved, among other things, a discussion of two potential government witnesses in Noriega’s criminal prosecution. CNN notified defense counsel that it possessed seven tape recordings containing several of Noriega’s conversations made from MCC, and that it intended to broadcast these conversations on national television.

On November 8, at 8:30 a.m,, the court heard argument on the motion and subsequently entered a temporary restraining order prohibiting CNN from broadcasting Noriega’s attorney-client conversations until the court could review the tapes to determine whether the broadcast of Noriega’s conversations with his defense team would impair his right to a fair trial. Accordingly, the court ordered CNN to produce the tapes for the court’s review prior to making a determination on the merits of Noriega’s motion. CNN appealed the court’s restraining order to the Eleventh Circuit the same day, arguing that the order imposed an unconstitutional prior restraint on publication of newsworthy information. Between approximately 6:30 p.m. on November 9th and 3:30 p.m. on November 10th, and while its appeal to the Eleventh Circuit was pending, CNN repeatedly broadcast the attorney-client conversation identified by Noriega in his motion for an injunction. It was stated at trial, on September 13, 1994, that CNN broadcast the segment eleven times.

On Saturday, November 10, the Eleventh Circuit upheld the court’s temporary injunction and ordered CNN to turn its tapes over to this court for in camera inspection. CNN then filed an application to stay this court’s restraining order and a petition for writ of certiorari to the United States Supreme Court, both of which were denied on November 18, 1990. Two days later, CNN delivered copies of its tapes to the court.

In order to assist the court in reaching its determination, an order was entered directing the transcription and translation of the tapes by court-employed translators. On November 28, the court, at a brief hearing, received argument on the merits of Noriega’s motion for injunction. Noriega’s counsel withdrew the motion, stating that the issue was moot since CNN’s tapes contained only one attorney-client conversation, which had already been broadcast by CNN. The government stated that it also had no objection to CNN’s broadcast of its tapes.

The court’s own review led to the conclusion that CNN’s tapes contained two conversations falling within the attorney-client realm. As to the conversation already broadcast by CNN, the court agreed that the issue was moot and that a restraint on further publication of this conversation would serve no purpose. The court determined that the second conversation was so cryptic and disjointed that its publication could not reasonably be said to be prejudicial and certainly not of such a damaging nature as to justify a prior restraint. Accordingly, the court orally vacated its order restraining CNN from broadcasting Noriega’s attorney-client conversations.

Subsequently, Special Attorney Robert Dunlap was appointed pursuant to Federal Rule of Criminal Procedure 42(b) to prepare an Order to Show Cause why CNN should not be held in criminal contempt for violating the court’s order temporarily prohibiting the broadcasting of Noriega’s attorney-client conversations. On March 30, 1994, CNN was charged by information with violating this court’s order in Criminal Contempt of the authority of the United States District *1552 Court for the Southern District of Florida, in violation of 18 U.S.C. § 401(3).

ANALYSIS

Criminal contempt is a sanction that is used to assert the authority of the court. It is a form of judicial self-defense, imposed upon those who interfere with the orderly business of the court or who disobey a court order. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796-98, 107 S.Ct. 2124, 2131-32, 95 L.Ed.2d 740 (1987) (“The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority ... ”). The power to hold a defendant in criminal contempt for disobeying an order of the court arises under 18 U.S.C. § 401, which states:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

To support a criminal contempt conviction for violating a court’s order, three elements must be established. The government must prove:

1. that the court entered a lawful order of reasonable specificity;

2. that the order was violated; and

3. that the violation was willful.

United States v. Robinson, 922 F.2d 1531, 1534-35 (11th Cir.1991). In addition, criminal contempt is considered a “crime in the ordinary sense,” and as such, a defendant must be afforded the constitutional protections required in all criminal proceedings. United Mine Workers v. Bagwell, — U.S. -, -, 114 S.Ct. 2552, 2556, 129 L.Ed.2d 642 (1994). Thus, to sustain a conviction the government bears the burden of proving each of these three elements beyond a reasonable doubt. United States v. Burstyn, 878 F.2d 1322, 1325 (11th Cir.1989).

1. Specificity of the court’s order.

To be found in violation of a court’s order, that order must have been specific enough to have put the defendant on notice as to what actions the court was trying to prohibit. In this case, the court entered a restraining order prohibiting CNN from playing certain tape recorded conversations made by Noriega while a prisoner at MCC.

CNN argues that the court’s order was either unclear or did not encompass the tape recorded conversation between Noriega and members of his defense team, Christina Ma-chín and Frank Hawkins (Noriega-Hawkins tape), a portion of which CNN broadcast on November 9 and 10, 1990. CNN argues that the court’s restraining order was limited to “privileged conversations,” and that this conversation was not privileged because either Noriega or Rubino had waived that privilege. CNN further argues that it believed that the court had deferred to CNN the authority to determine which conversations between Noriega and his defense team were privileged and which ones were not.

The court rejects this tortured interpretation of its order. United States v. Greyhound Corporation, 508 F.2d 529, 532 (7th Cir.1974) (defendant may not avoid criminal contempt by tortured or twisted construction of the court’s orders). The specificity of an order is a question of fact that must be evaluated in the context and setting in which it was entered. Burstyn, 878 F.2d at 1324. Thus, to determine the clarity of an order, the court should first examine the circumstances in which it was entered.

The court first entered a temporary restraining order at the request of Noriega’s counsel after argument on the morning of November 8, 1990. As stated earlier, Noriega’s request for an injunction had been prompted by CNN’s playing for Noriega’s counsel, Frank Rubino, the very tape that was later broadcast on November 9, 1990. CNN now argues that Mr. Rubino’s outrage after hearing the tapes, and his listening to them a second time after which he did not immediately object to the proposed broadcast, constitute an irrevocable breach of General Noriega’s attorney-client privileges; this, in spite of his vigorous opposition to the broadcast evidenced thereafter both by his calls to CNN and the filing of his Motion.

*1553 At the hearing on the request for an injunction, Noriega argued that the conversation between Noriega and Hawkins, at least, was privileged. See, e.g., Hearing Transcript 11/08/90, page 7 (“There is no question, and ... I believe CNN will concede today ... that these conversations are protected by the attorney-client privilege. These are conversations by our client, General Noriega, to the staff of Frank Rubino ... ”).

At the end of the hearing on November 8th, the court explicitly ordered CNN not to disclose the contents of any tapes which were in CNN’s possession until the court ruled at 6:00 p.m. that day. In response, CNN’s attorney asked whether the court’s order included “[a]ll tapes or simply any tapes which allegedly include attorney-client privilege?” Hearing Transcript 11/08/90, page 79, lines 24-25 (emphasis added). At this point in the proceeding, there was only one tape that Noriega had specifically alleged contained attorney-client information, the Noriega-Hawkins tape. No others had been played for Mr. Rubino. Thus, even if the court’s order was restricted to prohibiting the playing of any “alleged attorney-client privileged” conversations as CNN’s attorney suggested, the order would have precluded the playing of the Noriega-Hawkins conversation. The court went further, however, explaining that the court’s restraining order:

would apply to any tapes that disclose the attorney-client information. If there are other tapes that don’t have anything to do with the attorney-client situation I don’t think they are before the Court. And you can do what you want to with them.

Hearing Transcript 11/08/90, page 80 (emphasis added).

In response to the court’s statement, Mr. Rubino then asked whether the court was leaving it up to CNN to decide what was attorney-client privileged information and what was not. In response the court stated: “Well, I don’t know that I have any choice under the circumstances_” Hearing Transcript 11/08/90, page 81. CNN argues that this statement represents the court’s intention to defer to CNN the question of whether or not any particular statement was privileged. CNN’s position, however, is unsupported by the exchange which immediately followed that statement and by the total circumstances preceding the broadcast:

MR. RUBINO: Because I have heard only a portion of one tape. May I ask you to modify your order and restrict [CNN] from revealing the contents of any tape that involved General Noriega and his lawyers or their associates?

THE COURT: Well, in so far as the conversations are between General Noriega and the lawyers and their associates, that seems to me to come within the attorney-client privilege situation.

MR. RUBINO: I believe so too.

THE COURT: Yes. Other tapes I make no ruling on.

MR. RUBINO: We don’t have a problem with that. Thank you, Your Honor.

Hearing Transcript 11/08/90, page 81. Thus, the court explicitly defined the boundaries of the restraining order to include any tape recorded “conversations ... between General Noriega and the lawyers and their associates .... ” From this colloquy, it is clear that the court’s order encompassed at least the-very taped conversation which was the impetus of the motion and to which Mr. Rubino referred, if not every conversation between Noriega and his defense team. The court was allowing CNN to broadcast taped conversations between Noriega and anyone but his defense team.

It is interesting to note that while today CNN claims that the court’s order was unclear, CNN accurately reported the court’s actions at the time. At 1:46 p.m. on November 8, 1990, CNN reported that:

The Judge in the case has ordered a temporary injunction against CNN to prevent us from airing any recordings of Noriega talking to his attorneys....

Government’s Exhibit 6, page 500. Thus, CNN reported that it understood the injunction to prohibit CNN from playing any tapes with conversations between Noriega and his defense team.

The court reconvened at 5:55 p.m. that same day. The lawyers were immediately informed that the purpose of the hearing was *1554 to extend the injunction issued earlier that day.

In as much [sic] as ... CNN, may want to know what to do, I am entering a restraining order at least until tomorrow.... But I think they [CNN] ought to know that if those tapes are aired it will be in violation of the court’s order.

Government’s Exhibit 7, page 83. The court then announced its written order extending the “temporary injunction imposed on CNN at the hearing this morning ... until such time as the court can review the contents of the tape recordings in CNN's possession.” Government’s Exhibit 8, page 6. Thus, the first written order merely continued the restraint that had been imposed on CNN that morning. The court subsequently supplemented its order, further emphasizing that the court’s position was not a decision on the merits, but rather a temporary injunction to last until a magistrate could review the tapes.

CNN argues today that the written restraining orders did not apply to the Noriega-Hawkins tape as the restraining orders only prohibited “recordings containing privileged telephone communications,” 1 and the Noriega-Hawkins tape did not contain privileged conversations. Moreover, CNN presses its point that the court intended to leave it up to CNN to decide what tapes contained privileged information.

As indicated, the court finds this interpretation of its order to be completely unconvincing. First, this limited interpretation of the court’s order conflicts with CNN’s own understanding of the order at that time. After the second hearing on November 8, 1990, CNN prepared a press release regarding the court’s injunction which stated in part:

The Judge, however, extended an order he issued earlier today which purports to enjoin CNN from telecasting tapes of conversations between Noriega and his defense team.

Government’s Exhibit 9, page 509 (emphasis added). At this point, CNN clearly states that it understands that the court’s prohibition applies to all conversations between Noriega and his defense team. There is no indication that CNN understood the court’s order to be limited to actually “privileged” attorney-client conversations or that the question of waiver for conduct never brought to the court’s attention was in fact part of the court’s thinking. Similarly, CNN’s newscast on November 9, 1990 at 1:08 p.m. broadly describes the court’s order as “prohibiting CNN from airing tapes containing telephone conversations between Manuel Noriega and his defense team.” Government’s Exhibit 13, page 523. CNN’s final press release similarly described the court’s restraining order as prohibiting “telecasts of the actual content of General Noriega’s recorded conversations _” Government’s Exhibit 18. These public statements indicate that CNN was aware that the court’s order prohibited more than technically privileged information.

Second, such a limited interpretation ignores the order’s stated purpose and the interests that the court was trying to protect. In the original order, it was manifest that the primary concern was not merely any violation of the attorney-client privilege that may have occurred. Instead, the court intended to “prevent the disclosure of information damaging to the defendant’s case — information which, though damaging, is privileged.” Government’s Exhibit 8. In this way, the court characterized the problem as one involving the potential “conflict between Noriega’s right to a fair trial and the First Amendment prohibition against prior restraint.” Government’s Exhibit 8. The court reasoned that, based on what was said to be contained on the Noriega-Hawkins tape, Noriega’s right to a fair trial could be hampered by publication. The court concluded that absent some method of determining the factual issue, the potential harm to Noriega’s right to a fair trial justified the restraining order.

... [I]t is impossible to determine, at this stage, the precise extent to which Noriega’s right to a fair trial would be hampered by disclosure. What is known at this point is that at least some of the tapes contain discussions of witnesses, evidence, and cer *1555 tain other aspects of Noriega’s defense. Perhaps this alone is enough to sustain an interim injunction during the course of the trial.

Government’s Exhibit 8, page 6. Thus, not only did the restraining order include the Noriega-Hawkins tape, but the order was based upon the court’s understanding of what that tape contained.

In addition, CNN’s contention that the court was trying to let CNN, itself, decide what tapes could be broadcast directly contradicts the process that the court outlined. CNN was directed to produce the tapes, which were to be reviewed by Magistrate Turnoff. Although the court did stay the order requiring CNN to produce the tapes, it did so to allow CNN to meaningfully pursue an appeal on the merits of the temporary restraining order. The suggestion that the stay of production of the tapes was in some way a signal to CNN that it was to decide the importance of those tapes is a self-serving twist at best. The court was simply and obviously attempting to protect CNN’s first amendment position pending the Eleventh Circuit’s determination of the merits of CNN’s appeal. Such an appeal could have been rendered moot by the court’s subsequent action once it had possession of the tapes. The very purpose of the temporary injunction was for CNN to allow the court, not CNN, to determine what attorney-client information would harm Noriega’s right to a fair trial. See Government’s Exhibit 16, page 3 (“The more efficient alternative would be for CNN to provide the specific conversations in its possession for expedited review.”)

CNN also argues that the fact that the court held four hearings and issued two written orders during the two day period contributed to its alleged “confusion.” The court’s intent was to the contrary, however, as each hearing was held for the explicit purpose of explaining to the parties what the court was prohibiting CNN from doing and because CNN refused to turn over the tapes. Indeed, CNN had four opportunities at these hearings to raise waiver of the attorney-client privilege as an issue. Moreover, the emergency hearing held at 6:30 p.m. on November 9th was prompted by belated information provided the court that CNN was going to play the Noriega-Hawkins tape regardless of the court’s orders. At that hearing, the court explicitly admonished CNN, threatening contempt sanctions if it played the tape:

Now, I want to make it clear that the order that I have stayed is only the order relating to the production of the tapes, that the order enjoining CNN from publishing those tapes, the temporary restraining order remains in effect, and that if they publish those tapes they will be doing so in contempt and violation of that order and in contempt of court.

Hearing Transcript 11/09/90, page 126. No mention of the alleged waiver argument was made at any of the four hearings; rather, CNN focused on the unconstitutionality of the court’s order and its right to air the tapes if the court’s prior restraint order was reversed. See Hearing Transcript 11/09/90, page 127 (“... if the order is reversed and on First Amendment ground (sic) that the contempt is reversed as well”). CNN’s counsel also acknowledged that CNN was fully aware of the judges’ position and that they had made their position fully known. Hearing Transcript 11/09/90, page 127 (“We understand the court’s position, Your Honor. I believe we have stated ours”). At the 5:30 p.m. hearing, CNN had a full opportunity to state its position, but there was no mention of CNN’s current argument that Mr. Rubino had waived General Noriega’s privilege and as such playing these tapes was not a violation. As stated above, CNN argued that any contempt violation would be overturned when the restraining order itself was overturned. To say the least, it is disconcerting that CNN now asserts that the court’s orders were so unclear that it was not aware that playing the tapes was a violation, when it assured the court on November 9, 1990, that it understood the court’s position with respect to what the order required.

Moreover, CNN’s awareness of the extent of the court’s order was confirmed by its own telecast immediately following the hearing. During the 6:00 p.m. broadcast lead-in, the following exchange occurred:

*1556 Katherine Crier: Well John, CNN is about to air those very tapes. What action can the court take against CNN?

John Zarrella: Well, Judge Hoeveler apparently is aware that CNN will be airing those tapes momentarily and has told CNN attorneys that they risk contempt of court and other legal measures including monetary action against the network.

* * * # * *

Bernard Shaw: And just a little bit later on The World Today John Camp of our special assignment team with those very tapes CNN has been ordered not to broadcast.

Government Exhibit 20(b). It is ironic that CNN argues that its own reporting of the story should be ignored and disregarded as inaccurate. To the contrary, the court has the utmost respect for CNN’s journalistic ability and has been impressed by the accuracy and completeness of its reporting.

Thus, as evidenced by CNN’s own story, the court finds that the temporary restraining order was sufficiently clear to put CNN on notice that playing the Noriega-Hawkins tape would be a violation. It was clear to the court, to the litigants present, to the CNN reporters, to the 11th Circuit, 2 and to anyone in the American public who viewed the newscast, that the court had ordered CNN not to play the tape in question and that CNN intended to defy the court’s order because it believed the order violated its First Amendment Rights.

Defendant, through its counsel, either concluded that the court was simply entering an order which was essentially unnecessary— giving defendant considerable running room (in which case no appeal was necessary) or that the order was clear and incorrectly prevented the broadcasting of non-privileged conversations and an appeal was necessary. Whatever the basis, defendant’s lawyers were clear on the directions of the court and appealed immediately. The position taken by the defense suffers from a paucity of logic. Whether counsel then concluded that the court’s order was erroneous because of an incorrect conclusion regarding privilege or because it was clearly an unconstitutional prior restraint, it is apparent that counsel were clear on the directions of the order. So clear were the terms of the order that an appeal was taken immediately (November 8, 1990). The principal thrust of that appeal was the uneonstitutionality of the court’s directions.

The defense also argued that the court’s second order (November 9,1990) made more clear the right of CNN to decide the question of privilege and thus to broadcast the content of the tapes. This position scarcely requires response. Not only was the appeal not dismissed, CNN was taking no chances with that appeal and played the tapes the evening of November 9th. In the context of the attendant events of the two days in question, it is clear that the privilege waiver argument was a makeweight.

2. Violation of the court’s order.

As discussed above, the court finds as a matter of fact and law that the restraining order explicitly precluded CNN from playing the Noriega-Hawkins tape. Moreover, CNN was put on specific notice that playing the Noriega-Hawkins tape would be a violation. Despite the express warnings by the court, CNN aired portions of the Noriega-Hawkins tape eleven times on November 8 and 9, 1990.

In any event, whether or not the Noriega-Hawkins tape was privileged is irrelevant in light of the fact that the order in question prohibited the publication of all tapes which contained attorney-client conversations and which were thus arguably privileged. The Noriega-Hawkins tape contained a conversation between Noriega and members of his defense team and involved discussions of two potential witnesses. Thus, the tape comes within the realm of this court’s order because of its content and implicates the court’s con *1557 cern over potential violations of Noriega’s Sixth Amendment Right to a fair trial.

Even if the order could be narrowly construed as applying only to legally privileged attorney-client conversations, the court did not defer that legal determination to CNN. In fact, CNN counsel, Terry Bienstock, recognized that the order applied to any conversations that could be privileged when he asked the court if the restraining order applied to the contents of all the tapes or only those “allegedly including] attorney-chent privilege?” Hearing Transcript 11/08/90, page 79 (emphasis added). CNN was fully aware that Mr. Rubino had repeatedly asserted that the conversations were privileged. Moreover, CNN did not dispute this assertion until after the Noriega-Hawkins tape had been played. See, e.g., Government’s Exhibit 17, Supplemental Memorandum to the 11th Circuit at page 19 (“[Noriega] seems to be concerned that there be (sic) an implied waiver of the attorney-chent privilege. But any dispute on that subject hes between Noriega and the government, not with CNN and CNN’s telecast of tapes already heard by persons not within the privilege [who] will have no claim on that dispute.”)

In addition, the court rejects any argument that Mr. Rubino waived the privilege by identifying Noriega’s voice on camera. It is a fundamental principle of law that only the ehent, not the attorney, may waive the attorney-chent privilege. Wigmore on Evidence, § 2321 (1993 Supp.) Thus, an attorney may not waive the privilege without his Ghent’s consent. In this case, there is no evidence that Noriega himself waived the privilege or that he consented to Rubino’s actions.

Instead, CNN argues that Rubino, by agreeing to play a portion of the tape on camera and to identify the speaker, “authoritatively waived” the privilege. This argument is without legal foundation. In support, CNN cites In re von Bulow, 828 F.2d 94, 101 (2d Cir.1987), a case in which the ehent challenged a district court’s determination that his privilege had been waived. Despite CNN’s assertions, that court did not hold that von Bulow’s attorney had the authority to waive his client’s privilege. Instead, the court concluded that von Bulow himself had impliedly waived the privilege by his own actions.

By allowing pubheation of confidential communications in his attorney’s book Reversal of Fortune, petitioner was held to have waived his attorney-chent privilege- First, petitioner knew of, consented to, and actually encouraged attorney Dershowitz’s plans to -write a book providing an “insider look” into his case. Second, petitioner was warned before pub-heation that such an act might trigger a waiver and, yet, took no active measure to preserve his confidences. Third, after pubheation, petitioner joined his attorney in enthusiastically promoting the book on television and radio shows. Based on these key facts, the district court determined that von Bulow had waived his attorney-chent privilege.

Id. at 100. In von Bulow, the court actually emphasized the fact that “the privilege belongs solely to the ehent and may only be waived by him.” Id. at 100. In the case before the bar, there is no indication that Noriega knew of or consented to Rubino’s interview. In fact, there is no evidence that Noriega took any actions which could be construed as “impliedly” waiving his privilege.

CNN’s reliance on Brimmer v. Appleton, 628 F.Supp. 1249 (S.D.N.Y.1986) is similarly unfounded. In Drimmer, a ehent failed to object to his attorney’s in-court revelations regarding previously privileged conversations. The court held that the chent’s presence in the courtroom and his failure to object to the testimony operated as an implicit waiver of the attorney-chent privilege. In this case, Noriega was not present at Rubino’s interview and was not given the opportunity to object to Rubino’s actions. Thus, Rubino’s actions cannot constitute a waiver of Noriega’s rights, because there is no indication that Noriega consented to the disclosure.

3. Willfulness of the Violation.

In the criminal contempt context, willfulness is defined as “ ‘a dehberate or intended violation, as distinguished from an accidental, inadvertent, or neghgent violation *1558 of an order.’ ” United States v. Robinson, 922 F.2d 1581, 1535 (11th Cir.1991), cert. denied, Jackson v. United States, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986) (quoting United States v. Baldwin, 770 F.2d 1550, 1558 (11th Cir.1985)). Willfulness has also been described as a volitional act done by someone who “knows or should reasonably be aware that his conduct is wrongful.” United States v. Greyhound, 508 F.2d 529, 532 (7th Cir.1974) (quoting United States v. Seale, 461 F.2d 345, 368 (7th Cir.1972)). In determining whether or not a Defendant’s conduct was willful, a court should consider the entire background behind the order. Id. at 532.

CNN argues that it lacked the requisite willfulness because it maintained a reasonable belief that its conduct did not violate the court’s order. It further asserts that it maintained a reasonable belief that the court’s order applied only to privileged conversations and that it reasonably believed that the Noriega-Hawkins tape either did not contain privileged material or that the privilege had been waived by Rubino’s conduct. CNN asserts therefore that it was reasonable to assume that the airing of the Noriega-Hawkins tape would not constitute a violation.

Thus, CNN argues that if it failed to comply with the court’s orders, its failure was a result of this reasonable, yet mistaken, construction of the court’s order. CNN asserts that there is “no evidence that CNN ever understood it was violating the orders because CNN and its lawyers understood that CNN was acting within the proscriptions of the orders.” CNN’s Trial Memorandum, page 33. CNN argues that it lacked the requisite willfulness to be found in contempt because the violation of the court’s order was based on a reasonable assumption.

The court finds CNN’s argument specious and suggests it misrepresents the events as they occurred. I lay this not so much at the door of present counsel but more in relation to the information they have been provided. Contrary to current assertions, the court finds that the clear evidence shows CNN’s actions were based upon a belief that the court’s order was invalid. Thus, in voluntarily choosing to play the Noriega-Hawkins tape on November 9 and 10, 1990, CNN committed a volitional act which they [those for whom CNN will be responsible] knew was wrongful or recklessly disregarded circumstances which made that apparent.

In evaluating CNN’s actions, it should be noted first that CNN President, Tom Johnson, acted as a responsible journalist. When CNN first obtained copies of the tape, nothing was broadcast until the voices on the tape were verified. In addition, Mr. Johnson consistently sought legal counsel as to CNN’s right to play the tapes. Referring to his final discussion with the lawyers, Mr. Johnson stated:

I think it was my third check of the day to make sure that I was behaving responsibly and legally within the context of your order ...

Trial Transcript, page 526.

In fact, at approximately 5:50 p.m. on November 9, 1990, CNN local counsel, Mr. Bienstock, conveyed to CNN the court’s final admonition. With just minutes left before the story was to air, Mr. Johnson again asked for legal advice regarding CNN’s authority to play the tapes. Considering the fact that the court had specifically warned CNN not to play the tapes, it is unfortunate that CNN’s chief legal advisor, Mr. Pierson, did not exhibit the same degree of concern.

Question: ... And following that colloquy with Mr. Bienstock, what did Mr. Johnson do, if anything, in regard to the question of telecasting it.

Pierson: He raised again the question of whether CNN could telecast this actuality [the Noriega-Hawkins tape]. It surprised me a little bit since I thought that matter had been laid to rest.

Trial Transcript, page 206 (emphasis added).

Although CNN decided to play the tape upon the advice of its attorneys, such advice does not abrogate CNN’s liability for willful misconduct. The majority of courts have explicitly held that good faith reliance on the advice of counsel does not constitute a defense to willful disobedience. United States v. Remini, 967 F.2d 754 (2nd Cir.1992). See also, United States v. Under *1559 wood, 880 F.2d 612 (1st Cir.1989); United States v. Monteleone, 804 F.2d 1004, 1010 (7th Cir.1986) cert. denied. Monteleone v. United States, 480 U.S. 931, 107 S.Ct. 1567, 94 L.Ed.2d 759 (1987); United States v. Armstrong, 781 F.2d 700, 706 (9th Cir.1986); United States v. Seavers, 472 F.2d 607 (6th Cir.1973). Thus, it is not a defense to willfulness for CNN to claim that it was merely acting upon advice of counsel. A corporation acts through one or more of its employees. When considering the alleged criminal contempt of a corporation, no distinction will be made between or among the “group” which caused the act or acts which constitute the contempt. The judicial exposure which would exist in contempt cases, upon permitting the defense of lawyers’ advice, is apparent.

CNN argues that these cases can be distinguished from the ease at bar because the court’s order used legal terminology, thus requiring a lawyer’s advice. As a result, CNN argues that the court must look to the lawyers’ conduct to determine whether they acted in good faith when they advised CNN that the Noriega-Hawkins tape was not privileged and thus outside the court’s restraining order. CNN argues it did not willfully violate the court’s order because its attorneys reached the conclusion that the tape was not privileged in good faith.

The court rejects this argument on several grounds. First, the court disagrees with CNN’s legal distinction. Whenever an attorney advises his client regarding a court’s order, implicit in that advice is a legal judgment concerning not only the legality of that order but also its scope and application to the client. See, e.g., Monteleone, 804 F.2d at 1010 (court rejected defense of good faith reliance upon advice of counsel that reading a prepared statement would comply with a court’s order to testify). Thus, the general rule that an attorney’s advice does not insulate a defendant from criminal contempt should apply to CNN on the facts before the court.

Taking the several hearings in context, and giving particular attention to CNN’s refusal to permit a review of the tapes by the court and the court’s plain language before the broadcast on the evening of November 9th, there seems to be little question as to what CNN was ordered not to do.

I have little difficulty, in any event, in accepting the defendant’s suggestion that the lawyers’ conduct should be evaluated. Indeed, it is principally on the basis of that conduct and advice that the court’s decision is based. A review of the testimony and the exhibits make it rather clear that CNN’s attorneys felt that this court’s orders were unconstitutional and that pursuant to the teaching of Providence Journal, 3 they could ignore the order and avoid contempt if, indeed, they were as right as they thought they were. They were not right and now cannot avoid the consequences by shifting the emphasis for their decision. A study of the development of the events at CNN, shown by the testimony and the exhibits, presents a most interesting demonstration of the desire to air a hot story — aggravated by the government’s denials — leading to advice fitted to accommodate but weak on protection. Despite CNN’s continued assertions to the contrary, 4 the court’s restraining order was valid and has been upheld by the Eleventh Circuit. Thus, as candidly conceded by CNN, any violation based upon an assumption of invalidity constitutes contempt. See Trial Transcript, Closing, pages 575, 583 [QUESTION:] (“if [CNN] thought it violated the order, but they had a First Amendment right to do so ... would that be contemptuous in nature and I said, “Yes, I agree with you.’ ”) The court finds as a matter of fact and beyond a reasonable doubt that CNN primarily relied upon this assumption, and concludes that CNN willfully violated the order not to broadcast.

*1560 In determining whether CNN’s counsel knew or recklessly disregarded a clear instruction that playing the Noriega-Hawkins tape would be a violation, the entire background of the court’s order should be considered. Greyhound, 508 F.2d at 532. Thus, the court may look beyond the two written orders and consider the numerous hearings and specific admonishments CNN received. At the final hearing before the tapes were played, the court explicitly warned CNN not to play the tapes:

if they (CNN) publish those tapes they (CNN) will be doing so in contempt and violation of that order and in contempt of court.

Hearing Transcript 11/09/90, page 126. The defense concedes that CNN’s local counsel, Mr. Bienstock, accurately conveyed this message back to CNN.

[W]e (CNN) don’t challenge the fact that Mr. Bienstock reported to us accurately [the court’s] concerns the afternoon of Friday the 9th.... We were before the court. We were told through him essentially of your colloquy.

Trial Transcript, pages 560-561. Thus, CNN was accurately informed of the colloquy and the court’s admonition.

Despite this explicit warning, CNN asserts three “different analyses [were] used to approach the question of the risk of playing the [Nor