The 1971 Pentagon Papers case tested the right of the press to expose government duplicity about important public business without submitting to prior censorship.

Now comes the Noriega tapes case, which tests (among other things) the right of a news organization to thumb its nose at the judiciary-to flout a temporary restraining order by rushing onto the air a leaked tape almost devoid of serious news value.

The Cable News Network appealed the restraining order to the Supreme Court on Nov. 15. And leaders of the media establishment took to the barricades in full First Amendment regalia to champion CNN’s right to broadcast wiretaps of Gen. Manuel Antonio Noriega consulting with his legal team.

Well they should. The lower courts’ prior restraint on CNN set a worrisome precedent. But CNN’s conduct raises troublesome questions too:

Was it wise to escalate this fight by violating the order without waiting a few days for a decision on appeal? Did the public have such an urgent need to hear this unremarkable tape without delay? If so, why did you promote the tape for a full day before putting it on the air?

Were you driven by the need to expose government misconduct? Or by the urge to flaunt your scoop for purposes of self-promotion? Was it really necessary so boldly to risk provoking the first Supreme Court ruling in history to uphold a prior restraint on news reporting?

By the way, have you noticed that this is not the same Court that decided the Pentagon Papers case-that all but two of the justices who laid down that robust precedent against prior restraint are gone?

And have you noticed that the newspapers complied with temporary injunctions in the Pentagon Papers case until the Supreme Court overturned them?

News organizations ought to have a better journalistic reason than CNN had before inviting the creation of bad law by throwing down the gauntlet to the courts as CNN did.

For better or worse, the longstanding presumption against prior restraints on publication has never been absolute. One reason it has so seldom been breached is that in most big cases, the facts have tipped the scales to the First Amendment side.

In this case, CNN claims a near-absolute right to broadcast leaked tapes of a defendant’s privileged conversations with counsel, regardless of how prejudicial they might be, and to do so even if that violates a court order. At this writing, it has struck out with four judges.

U.S. District Judge William Hoeveler of Miami has threatened to hold CNN in contempt for violating his Nov. 8 order not to broadcast any Noriega tape covered by the attorney-client privilege without first giving Hoeveler a chance to assess how much damage that might do to the defendant’s fair-trial rights. (The judge has stayed the contempt proceeding pending Supreme Court review of the underlying order.)

In upholding Hoeveler’s restraining order on Nov. 10, the U.S. Court of Appeals for the 11th Circuit criticized CNN’s defiance and suggested, ominously for the press, that the courts’ "primary responsibility of ensuring that the accused has a fair trial" outweighs the right of the press to publish.

CNN may yet emerge unscathed. It may turn out that, as the network contends, it did not violate Hoeveler’s order at all, because Noriega had somehow waived his attorney-client privilege.

And CNN may be correct that Judge Hoeveler had no power to delay the broadcast even temporarily, because Noriega’s claim that the broadcast would deny him a fair trial was speculative and implausible.

Indeed, CNN’s disclosure of what Noriega had said to his lawyers’ staff proved to be no more harmful to Noriega than it was newsworthy. But Judge Hoeveler had no way of knowing that when he entered his order.

The case has its roots in a legitimate scoop, one that raises the strong possibility of serious governmental misconduct: CNN learned that some of Noriega’s telephone conversations with his legal team had been taped, probably by his jailers.

CNN also obtained copies of some of those tapes, as well as unprivileged tapes of Noriega talking to associates in Panama, with apparent references to moving money around and rallying support.

The circumstances under which the tapes were made and found their way to CNN are murky. The Bureau of Prisons has a policy of taping all phone calls by inmates, with their knowledge, except for calls involving consultation with their lawyers. Noriega had signed an acknowledgment of this. The mystery is whether the government taped calls to his lawyers’ office with Noriega’s consent, or by inadvertence, or (as seems increasingly likely) by design.

The free press/fair trial drama began on Nov. 7, after CNN told Noriega’s lawyers that it had the tapes. The lawyers rushed into court, accusing the government of a "horrendous constitutional violation" and demanding an emergency injunction against any CNN broadcast of Noriega’s conversations with his lawyers or their staff.

Judge Hoeveler issued a temporary restraining order the next day. He barred CNN from broadcasting any privileged conversations until he could assess whether anything in them "presen[ed] a clear, immediate and irreparable danger to defendant’s right to a fair trial.”

This left CNN free to broadcast tapes of unprivileged conversations and to report that tapes of Noriega’s calls to his lawyers’ office had been made and that CNN had them. The network did so on Nov. 8.

Judge Hoeveler also ordered CNN to give copies of the attorney-client tapes to a magistrate so that he could assess how prejudicial they might be. CNN refused. It asserted that those tapes-which, by its own account, were simply copies of ones made by the government-were protected from disclosure as fruits of "the newsgathering and reporting process.”

In Hoeveler’s view, he "was in effect being asked to make a factual determination without being allowed to review the facts."

While appealing to the 11th Circuit, CNN took an ill-advised step: On Nov. 9, without waiting for the appeals court to act, it broadcast a tape of Noriega briefly discussing two possible witnesses against him with a secretary-translator at his lawyers’ office.

The conversation itself was neither newsworthy nor damaging to Noriega. But by airing it, CNN violated Judge Hoeveler’s order-unless indeed Noriega had waived his privilege.

If the conversation was privileged, then under the best precedent for CNN, it could defend against a contempt citation (if one comes) only by convincing an appeals court that the restraining order was not only unconstitutional but "transparently invalid.”

CNN stresses that there had been no proof that broadcasting whatever was on the tapes could deny Noriega a fair trial.

That may be a good argument for holding Judge Hoeveler’s order unconstitutional. But "transparently invalid"? Don’t bet the First Amendment on it.

It is hard to understand why the network courted a contempt citation for the sake of broadcasting a tape containing no newsworthy material other than the fact of its existence.

CNN argues that when the Justice Department denied "improperly" taping calls between Noriega and his counsel, it needed to broadcast the tape to document its report to the contrary.

But the department had not denied the taping; it had denied doing so "improperly." And CNN’s broadcast of one such tape shed little light on whether it had been made improperly.

The tape did add a bit of context, a bit of credibility, a bit of documentation of CNN’s investigative aplomb. And it did show that CNN was not about to let itself be pushed around by some federal judge. But at what cost?