STATE RECORD CO., INC. v. State

504 S.E.2d 592, 332 S.C. 346, 27 Media L. Rep. (BNA) 1193, 1998 S.C. LEXIS 122

• Court: Supreme Court of South Carolina
• Decided: August 31, 1998
• Docket: 24831
• Status: Published

Opinions

WALLER, Justice:

This is an appeal of a temporary restraining order prohibiting the media from disseminating the contents of a videotape containing a privileged communication between the defendant herein, B.J. Quattlebaum, and his attorney. The State-Record Co., Inc. (The State/Newspaper) appeals. We affirm.

FACTS

Quattlebaum was indicted for murder, armed robbery, assault and battery with intent to kill and possession of a firearm during commission of a violent crime; the State sought the death penalty. While he was imprisoned at the Lexington County Detention Center, a privileged conversation between Quattlebaum and his attorney was surreptitiously recorded.¹ The videotape was thereafter disseminated to WIS-TV, a Columbia television station.² Upon learning of the videotape and its dissemination to the media, Quattlebaum moved for a temporary restraining order (TRO) prohibiting dissemination or characterization of its audio content. On August 18, 1997, the circuit court granted an ex parte TRO, pending a hearing the following day, prohibiting all trial participants and all media from disseminating the substance and details of the privileged communication. Counsel for The State was notified by telephone and a copy of the order was served on it the same day.

After a hearing on August 19, 1997,³ the circuit court continued its order in effect until such time as a jury was empaneled and sequestered in Quattlebaum’s case.⁴ The circuit court’s order specifically notes that it does not “prohibit the reporting of the invasion of the attorney client privilege;” nor does it “restrain or prohibit [publication of] the identity of the individuals involved or the nature of the charges in the case.” It simply prohibits the “dissemination of the contents of the communication or the characterization of its contents.”

ISSUES

1. Did the circuit court have subject matter jurisdiction to issue the temporary restraining order?

2. Did the circuit court have personal jurisdiction over Newspaper?

3. Did the court err in imposing a prior restraint?

1. SUBJECT MATTER JURISDICTION

Initially, The State contends the court of general sessions is without subject matter jurisdiction to issue an injunction.⁵ We disagree.

The general rule that a court in a criminal case will not issue an injunction is subject to the exception that a court, once having obtained jurisdiction of a cause of action, has inherent power to do all things reasonably necessary to the administration of justice in the case before it. 42 Am.Jur.2d Injunctions § 11 (1969). The United States Supreme Court has recently recognized the inherent authority of a court to protect its proceedings. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (courts invested with judicial power have inherent authority to protect their proceedings in course of discharging their traditional responsibilities). We find it patent that a court of general sessions has subject matter jurisdiction to issue an injunction, if necessary, to protect its proceedings.

2. PERSONAL JURISDICTION

The State next argues the circuit court was without personal jurisdiction to bind it. We disagree.

Under Rule 65(d) of the South Carolina Rules of Civil Procedure (SCRCP), every order granting a restraining order is binding on the parties and “those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”⁶ Here, the only known media entity in possession of the videotape at the time Quattlebaum sought a TRO was WIS-TV, which was named and served with the motion for a TRO. We agree with the circuit court that The State was “in active concert” with WIS and had actual notice of the order so as to be bound by it. We find no error in the circuit court’s assertion of personal jurisdiction over The State.

3. PRIOR RESTRAINT⁷

The State next contends the circuit court erred in issuing a prior restraint as Quattlebaum failed to meet his burden of justifying its necessity. We disagree. Under the extremely limited factual circumstances of this case, we find the circuit court properly enjoined dissemination of the privileged communication between Quattlebaum and his attorney.

This Court is faced with a profound dilemma: whether to uphold a prior restraint upon the media’s First Amendment⁸ right of free speech, a task which carries with it an extremely heavy burden upon the party seeking to limit the speech⁹; or whether to invalidate the prior restraint placing in jeopardy the fundamental right of a defendant to a fair trial pursuant to the Sixth Amendment.¹⁰ We are faced with the added quandary that the information sought to be disseminated by the media is a privileged communication between a criminal defendant and his attorney.¹¹

To date, the United States Supreme Court has declined to assign priorities between the First Amendment right of free press and the Sixth Amendment right to a fair trial.¹² In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 561, 96 S.Ct. , 49 L.Ed.2d 683, 699 (1976), the Court specifically declined to rule on the issue, stating:

The authors of the Bill of Rights did not undertake to assign priorities as between the First Amendment and Sixth Amendment rights, ranking one as superior to the other. In this case, petitioners would have us declare the right of an accused subordinate to their right to publish in all circumstances.... [I]t is not for us to rewrite the Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances.

Notwithstanding its reluctance to assign priorities between the competing interests, the Court has recognized that the right of a defendant to a fair trial is “the most fundamental of all freedoms — [which] must be maintained at all costs.” Estes v. State of Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543, 549 (1965). More recently, the Court noted that “No right ranks higher than the right of an accused to a fair trial.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629, 637 (1984).

The Nebraska Press Court recognized a trial court’s duty to protect the defendant’s constitutional right to a fair trial from the impact of pretrial publicity:

Due process requires that the accused receive a trial by an impartial jury free from outside influences.... [T]he trial courts must take strong measures to ensure that the balance is never weighed against the accused .... where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should [take such measures as continuance, change of venue, sequestration, or a new trial].... But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.

427 U.S. at 552-53, 96 S.Ct. at 2800, 49 L.Ed.2d at 694 (emphasis supplied) (citing Sheppard v. Maxwell, 384 U.S. , 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). See also Noriega, 752 F.Supp. at 1049-51.

Citing Learned Hand,¹³ Nebraska Press established a three-prong balancing test to determine whether a prior restraint is justified:

1. The nature and extent of pretrial publicity;

2. Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and

3. How effectively a restraining order would operate to prevent the threatened danger.

427 U.S. at 562-68, 96 S.Ct. at 2804-07, 49 L.Ed.2d at 699-703. Nebraska Press specifically noted that “[t]he precise terms of the restraining order are also important.” Id. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699.

We find the remedial measures employed by the trial court here were necessary to guarantee Quattlebaum’s right to a fair trial.¹⁴ Moreover, the restraint imposed by the trial court was as narrowly tailored, both in scope and duration, as was possible under the circumstances.

Here, as to the first element, although Quattlebaum’s case was not extremely “sensational,” it was a death penalty case which received media attention throughout the state due, in large part, to the videotape in question. We find sufficient evidence in the record from which to conclude the pretrial publicity in this case had the potential to impair the Quattlebaum’s right to a fair trial. Accord Nebraska Press, 427 U.S. at 562-63, 96 S.Ct. at 2804, 49 L.Ed.2d at 700 (notwithstanding impact of publicity is “of necessity speculative,” dealing as a court must with factors unknown and unknowable, court could reasonably conclude, based on common human experience, that publicity might impair defendant’s right to a fair trial).

Further, we find the third prong of Nebraska Press is met in this case. Undoubtedly, the prior restraint prevented prospective jurors from learning the contents of the privileged communication contained on the videotape. Clearly, it prevented the threatened danger to Quattlebaum’s right to a fair trial.¹⁵

The most troubling element of Nebraska Press is the second prong, whether “other measures would be likely to mitigate the effects of unrestrained pretrial publicity.” The problem with application of this factor is that it is simply untenable to suggest that other measures would not, in any case, be “likely to mitigate” the effects of pretrial publicity. It could always be argued that other measures would, to some degree, “mitigate” the effects of pretrial publicity.¹⁶ “Mitigate” is defined as “to make less severe, alleviate.... ” NEW WEBSTER’S DICTIONARY AND THESAURUS 640 (1993). Although alternate measures might “make less severe” the effects of pretrial publicity, they could not, in this case, ensure Quattlebaum’s right to a fair trial. Were we to premise our analysis solely upon whether other measures would be “likely to mitigate” the effects of pretrial publicity, then we can conceive of no situation which would meet the elements of Nebraska Press. We do not believe the Supreme Court intended the second prong of Nebraska Press to be read in isolation so as to foreclose the possibility, in all circumstances, of a prior restraint. Had it intended such a result, it would have imposed an absolute ban on prior restraints. Indeed, a majority of the Court specifically declined to do so,¹⁷ stating:

However difficult it may be, we need not rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint. This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.

427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704.

Rather, as we view the Nebraska Press test, it must be viewed in its entirety, with a view toward ensuring a defendant’s fundamental right to a fair trial, and not merely with an eye toward “mitigating the effects” of pretrial publicity. As noted previously, the Nebraska Press Court specifically noted that such invasion of free speech as is necessary to avoid the danger is permissible. See supra note 13.¹⁸ We find the limited prior restraint imposed here was necessary to avoid the potential prejudice to Quattlebaum as would ensue from disclosure of the videotape. Were we to hold otherwise, the contents of the videotape in question could have been disclosed and the substance of the privileged communication with his attorney divulged. Once disclosed, although other measures might have alleviated the prejudice to Quattlebaum, his right to a fair trial could not have been guaranteed.¹⁹ In our view, the United States Supreme Court did not intend such a result in establishing the Nebraska Press test. Accordingly, we find the threat of prejudice to Quattlebaum’s right to a fair trial justified the prior restraint here.

Our decision to affirm the circuit court’s issuance of a temporary restraining order is bolstered by the uncertainty of the precise standard necessary to justify a prior restraint in cases in which the defendant claims, not only that pretrial publicity threatens his right to a fair trial, but also that his attorney client privilege has been violated, thereby jeopardizing his right to effective assistance of counsel.²⁰ We refer to the uncertainty created by the decisions of the District Court, and the Eleventh Circuit Court of Appeals, in United States v. Noriega. See supra note 11.

As noted in Footnote 11, the Noriega cases involved the recording of Manuel Noriega’s privileged telephone calls with his attorneys while in prison in Florida. The United States District Court for the Southern District of Florida temporarily restrained CNN, which had gained possession of the tapes, from broadcasting the recordings until it could determine whether broadcasting the tapes would prejudice Noriega’s trial. 752 F.Supp. 1082 (S.D.Fla.1990) (Noriega 1). Clearly, this does not comport with the Nebraska Press three-prong test as that test requires a showing of prejudice in the first instance before a prior restraint is ever justified. Nonetheless, the Eleventh Circuit upheld the restraining order. 917 F.2d 1543 (11th Cir.1990) (Noriega 2 ).²¹ In doing so, the Eleventh Circuit noted that “the determination of whether the telephonic communications between Noriega and his defense counsel are privileged, while not necessarily dispositive of whether such communication should be publicly broadcast, would be relevant to the District Court’s assessment of potential harm to Noriega’s right to a fair trial.” Id. at 1551. The Supreme Court denied certiorari, over the dissent of Justices Marshall and O’Connor. 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990).

In light of the opinions in Noriega 1 and Noriega 2, it is uncertain precisely how the Supreme Court would rule if faced directly with the issue of a prior restraint in the context of the media’s threatened disclosure of confidential conversations obtained in violation of the attorney client privilege. At least one commentator has speculated that the denial of certiorari in Noriega leaves open the possibility that the Nebraska Press standard is open to revision. See Splichal and Bunker, The Supreme Court and Prior Restraint Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol’y 9, 11, 12 (1994) (speculating that alarm expressed in dissenting opinion in Supreme Court’s denial of certiorari suggests a majority of the Court might be willing to give judges a freer reign in balancing First Amendment principles with fair trial concerns). Accordingly, in light of the confusion surrounding the Noriega cases,²² we find the matter is better left to the United States Supreme Court for resolution. Should that Court wish to establish an alternative standard from that set forth in Nebraska Press, or to adopt an absolute ban on prior restraints, it is free to do so.

CONCLUSION

It is difficult to conceive of a situation in which the rights of a defendant to a fair trial were more at jeopardy than the instant case.²³ If Quattlebaum’s Sixth Amendment rights were insufficient to justify imposition of the prior restraint in this case, we can think of no situation in which a prior restraint would ever be justified or in which alternative measures would not be found sufficient to mitigate any threatened prejudice. Since Nebraska Press did not foreclose the possibility that there may be situations in which a prior restraint is justified, we find the egregious circumstances of this case sufficient to warrant imposition of the extremely limited temporary restraining order imposed by the circuit court.²⁴ Any contrary holding would potentially have denied Quattlebaum’s fundamental right to a fair trial and have been shocking to the universal sense of justice; such a result will not be endorsed by this Court. Accordingly, the judgment below is

AFFIRMED.

FINNEY, C.J., MOORE and BURNETT, JJ., concur. TOAL, J., concurring and dissenting in separate opinion.

1 . It is undisputed that the conversation is in fact a privileged, attorney-client communication.

2 . The manner of its distribution is unknown and is not an issue on appeal.

3 . The State attended the hearing.

4 . The order on appeal has effectively expired since Quattlebaum was tried, convicted and sentenced to death while this appeal was pending. However, the fact that Quattlebaum has now been tried does not render our decision moot. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (court’s jurisdiction is not defeated simply because the order attacked has expired, if the underlying dispute between the parties is one capable of repetition, yet evading review).

5 . The State premises this contention upon the holding of State v. Franks, 214 S.C. 525, 53 S.E.2d 608 (1949). Franlcs relied on Section 565, Code of 1942, later codified at S.C.Code Ann. § 15-55-10, which was repealed upon enactment of the South Carolina Rules of Civil Procedure (SCRCP) (in effect at the time of this action). Accordingly, Franks and section 15-55-10 are inapplicable.

6 . Under Rule 65(b), a temporary restraining order, as was initially issued in this case, may be issued without notice.

7 . Some courts draw a distinction between a "gag order” restricting merely trial participants, which is not characterized as a prior restraint, and one directly restraining the media itself. See, e.g., United States v. Davis, 904 F.Supp. 564 (E.D.La.1995); Application of Dow Jones & Co., 842 F.2d 603, 609 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988). The order on appeal directly enjoins the media. Accordingly, it is clearly properly characterized as a prior restraint.

8 . U.S. CONST, amend. I; S.C. CONST, art. I, § 2.

9 . See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556-59, 96 S.Ct. 2791, 2801-03, 49 L.Ed.2d 683, 695-98 (1976); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (setting forth presumption of unconstitutionality of prior restraints).

10 . U.S. CONST, amend. VI; S.C. CONST, art. I, § 14.

11 .We note, at the outset, that there is very little precedent regarding a balancing of the competing interests in this regard. Only one case, United States v. Noriega, has involved violation of the attorney client privilege. There have been a series of opinions in Noriega. The first was issued by the United States District Court for the Southern District of Florida. United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990) (Noriega 1). In Noriega 1, the district court temporarily enjoined Cable News Network (CNN) from broadcasting tape recordings of privileged telephone conversations between Manuel Noriega and his defense team, until such time as the tape recordings could be reviewed by a federal magistrate to ascertain whether the defendant’s right to a fair trial would be jeopardized by publication of the contents. The Eleventh Circuit affirmed the grant of the temporary injunction on the ground that CNN’s failure to produce the tape recording had prevented the district court from balancing the defendant’s right to a fair trial with CNN’s First Amendment rights. United States v. Noriega, 917 F.2d 1543 (11th Cir.1990) (Noriega 2). The United States Supreme Court denied certiorari. Cable News Network, Inc. v. Noriega, 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990). Thereafter, the district court held Noriega had not met his burden of demonstrating the necessity of a permanent injunction, in part because a portion of the privileged attorney-client conversation had already been broadcast by CNN (such that it was moot), and that the remaining portion of the privileged conversation was simply not so prejudicial as' to warrant a prior restraint. United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990) (Noriega 3 ). The court in Noriega 3 also found Noriega’s claim that his Sixth Amendment right to effective assistance of counsel was jeopardized insufficient to justify the continued prior restraint, since alternative measures were available through which to prevent prosecutorial tainting. Id.

12 . Although the Supreme Court has declined to do so, a number of lower courts have held that a defendant’s Sixth Amendment right to a fair trial is superior to the right of free speech and that, where the two rights collide, the latter must give way to the former. Application of Dow Jones & Co., 842 F.2d 603 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988) (when exercise of free press rights actually tramples on Sixth Amendment rights, former must yield to the latter); United States v. Davis, 904 F.Supp. 564 (E.D.La.1995); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir.1991) (when First Amendment claims impinge on Sixth Amendment right to trial by impartial jury, asserted First Amendment freedoms must yield to the 'most fundamental of all freedoms,’ the right to a fair trial for the accused); Mockaitis v. Harcleroad, 938 F.Supp. 1516 (D.Or.1996), rev’d on other grounds, 104 F.3d 1522 (9th Cir. 1997).

13 . "[T]he gravity of the 'evil' as discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” 427 U.S. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699 (emphasis supplied) (citing United States v. Davis, 183 F.2d 201, 212 (2d Cir.1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)).

14 . Although other measures may have, as discussed below, mitigated the effects of pretrial publicity, the only measure certain to ensure Quattlebaum’s fundamental right to a fair trial was imposition of the prior restraint.

15 . Unlike the situation in Nebraska Press, the prior restraint here was manageable because the only known media sources in possession of the videotape were local media television stations and newspapers. Since all parties and media in possession of the tape were restrained from disclosing its contents, the territorial problems espoused by the Court in Nebraska Press were much less troublesome. The fact that people may have speculated as to the contents of the videotape in question is simply insufficient to rule that Quattlebaum had not met his burden of demonstrating a prior restraint would prevent the threat to his right to a fair trial. On the contrary, this is one of those "unknown and unknowable” ramifications which, we find, justifies the trial court’s conclusion that the prior restraint would prevent the harm in this case.

16 . Under a literal application of the second prong of Nebraska Press, it is questionable whether the test could ever be met. See L. Tribe, American Constitutional Law 858-59 (2d Ed.1988) (Supreme Court’s confidence that alternatives to prior restraints on media will adequately deter any adverse impact of publicity suggests that Nebraska Press acts as "a virtual bar to prior restraints” on the press); Bemabe-Riefkohl, Prior Restraints on the Media and The Right to a Fair Trial: A Proposal for a New Standard, 84 Ky.L.J. 259, 290-91 (1995-96) (standard of Nebraska Press is almost impossible to meet as a defendant cannot demonstrate that twelve impartial jurors cannot be found or that alternative measures will not eliminate risks).

17 . At least four of the justices in Nebraska Press advocated a position that a prior restraint on the press could, in no circumstances, be justified. See 427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704 (Justice White concurring); Id. at 572, 96 S.Ct. at 2809, 49 L.Ed.2d at 705 (Justices Brennan, Stewart and Marshall concurring). See also Peterson, A First Amendment-Sixth Amendment Dilemma: Manuel Noriega Pushes the American Judicial System to the Outer Limits of the First Amendment, 25 J. Marshall L.Rev. 563, 579 (1992) (noting that concurrences in Nebraska Press test makes prior restraints on publication of information already obtained an impossible order to justify); Bernabe-Riefkohl, supra note 16, at 267 (suggesting standard set forth by Supreme Court is inoperable and confusing, and courts should adopt absolute rule against the use of prior restraints).

18 . A number of courts and commentators have recognized that the "alternative measures” suggested by Nebraska Press are, in reality, insufficient. As one court has noted, "[e]mphatic jury instructions to disregard prejudicial publicity is an unsatisfactory solution.” Davis, 904 F.Supp. at 569. See also KUTV v. Wilkinson, 686 P.2d 456 (Utah 1984) (finding neither sequestration nor voir dire were sufficient alternatives to imposition of restraining order). Additionally, it has been argued that other alternatives do not sufficiently safeguard the right to a fair trial:

Postponement may encroach on the accused’s right of a speedy trial and may actually increase publicity in a case of great public interest; change of venue involves delay presenting the problems associated with postponement, local communities have an interest in local adjudication, and a highly publicized criminal case likely will cause prejudicial information to be disseminated nationally, rendering change of venue ineffective; voir dire cannot remove individuals who have read previous newspaper accounts and a larger jury pool may result in a greater number of people who have been exposed to prejudicial publicity or to a delay in voir dire with an enhanced opportunity for improper publicity to occur; jury sequestration is not only a drastic measure, requiring the jurors to compensate for the publicized actions of trial participants, but also lengthy jury sequestration can cause the bias of resentment, the desire to end deliberation, and cannot remove prejudice from publicity prior to impanelment and jury instructions may be ineffective regardless of pretrial publicity because the great detail present in jury instructions in a highly publicized criminal trial may not highlight precisely the issues the jurors are being instructed not to consider.

Stabile, Free Press-Fair Trial: Can They Be Reconciled in a Highly Publicized Criminal Case, 79 Geo.L.J. 337, 343-45 (1990). See also Isaacson, Fair Trial and Free Press: An Opportunity for Coexistence, 29 Stan.L.R. 561 (1990) (recognizing inadequacy of alternative measures set forth in Nebraska Press and Sheppard v. Maxwell); Davis, 904 F.Supp. at 568-69.

19 . Once a privileged communication has been disclosed to the public, it can never be recalled and the right to a fair trial may have been forever jeopardized. Accord United States v. Davis, 904 F.Supp. 564, 569 (E.D.La.1995) (it is difficult, if not impossible, to "unring a bell”).

20 . In Noriega 3, the District Court, on remand, analyzed the claims as two separate prongs: the defendant’s Sixth Amendment right to a fair trial, and his Sixth Amendment right to effective assistance of counsel. It applied the three prong Nebraska Press test to both rights.

21 . A number of commentators have recognized misapplication of the Nebraska Press test in Noriega 1 and Noriega 2. See Peterson, supra note 17, at 563; Splichal and Bunker, The Supreme Court and Prior Restraint Doctrine: An Ominous Shift?, 3-SPG Media L. & Pol’y 9 (1994); Schweiker, United States v. Noriega: Conflicts Between the First Amendment and Rights to a Fair Trial and Privacy, 1993 U.Chi. Legal F. 369, 374 (1993).

22 . Although the Eleventh Circuit ultimately concluded Noriega was not entitled to continuation of the restraining order, 752 F.Supp. 1045 (S.D.Fla.1990) (Noriega 3 ), that decision was based in large part on the fact that the tapes in question contained only two conversations falling within the attorney client ambit, one of which had already been broadcast by CNN, and the other of which was so "cryptic and disjointed” that Noriega’s counsel conceded it was not prejudicial insofar as impaneling an impartial jury was concerned. Id. at 1053. Noriega 3 sheds no light on the appropriate standard to be applied in cases such as that presently before the Court.

23 . Unfortunately, both this Court’s and the lower court's hands are somewhat "tied” in this case in that it is impossible, without disclosing the contents of the videotape, to accurately portray the potential prejudice to Quattlebaum.

24 . As noted previously, the order on appeal does not prohibit publication of the existence of the videotape, or the fact of the invasion of the attorney client privilege. It does not even prohibit the videotape itself from being aired by the media; it merely restricts dissemination of the contents of the privileged communication itself, or the characterization of the contents.