1318
Opinion in Chambers
Federal has not met this burden here. The Circuit Court no doubt is correct that broadcast of the videotape "could" result in significant economic harm to Federal. Even if economic harm were sufficient in itself to justify a prior restraint, however, we previously have refused to rely on such speculative predictions as based on "factors unknown and unknowable." Id., at 563; see also New York Times Co. v. United States, supra.
Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the "calculated misdeeds" of CBS. In New York Times Co., the Court refused to suppress publication of papers stolen from the Pentagon by a third party. Subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context. Even if criminal activity by the broadcaster could justify an exception to the prior restraint doctrine under some circumstances, the record as developed thus far contains no clear evidence of criminal activity on the part of CBS, and the court below found none.
I conclude that the decision below conflicts with the prior decisions of this Court, that there is a reasonable probability that the case would warrant certiorari, and that indefinite delay of the broadcast will cause irreparable harm to the news media that is intolerable under the First Amendment. Entry of a stay therefore is appropriate under the All Writs Act, 28 U. S. C. § 1651. See INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, ante, at 1301 (O'Connor, J., in chambers). If CBS has breached its state-law obligations, the First Amendment requires that Federal remedy its harms through a damages proceeding rather than through suppression of protected speech.
The Circuit Court's injunction is therefore stayed.
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