Scalia's Tape Tactics at Issue
Los Angeles Times, April 9, 2004
Experts question legal basis for confiscation--
apparently on justice's orders-- of recordings.
By David G. Savage
Times Staff Writer
WASHINGTON-- First Amendment experts on Thursday questioned the legal
basis for a deputy U.S. marshal-- apparently acting on the orders of Supreme
Court Justice Antonin Scalia-- to confiscate and erase recordings made by two
reporters invited to hear the justice speak at a high school gym.
The experts questioned not only Scalia's practice of barring recordings of
remarks made in public, but also whether the seizure may have violated a federal
law intended to shield journalists from having notes or records confiscated by
"I don't think any public official-- and I don't care whether you are a
Supreme Court justice or the president of the United States-- has a right to
speak in public and then say, 'you can't record what I have said,' " said Burt
Neuborne, a law professor at New York University and former legal director of
the American Civil Liberties Union. "A marshal is there for security, not to
censor what a justice has said." .....
"This was our first effort at having a national speaker on campus. We
assumed the public and reporters would want to be here," said Barrett Mosbacker,
Antoinette Konz, a school reporter for the Hattiesburg American, said she
received a written invitation to cover the event. "They called back to make sure
we would be there Wednesday," she recalled. "And when we arrived, they gave us a
place to sit in the front row." ....
Near the end of the talk, Deputy U.S. Marshal Melanie Rube, who works in
the Hattiesburg area, confronted two reporters who were recording Scalia's
"She came up and demanded the tapes," Konz said. "She told us that Scalia
did not want the speech to be taped-recorded."
When Associated Press reporter Denise Grones balked, "The marshal grabbed
the tape recorder," Konz said, and erased the digital recording.
Konz said the marshal then removed the tape from her recorder and walked
away with it. "I said, 'I need that tape,' she said. I tried to explain there
was stuff on the other side that I needed." After the event, the marshal agreed
to return the tape, but only after taping over the 40 minutes that covered the
time of Scalia's appearance.
Konz said she was surprised by Scalia's actions, since she had met him four
years ago when he gave a speech at a local college where she was a
"I had my picture taken with him," she said. "I certainly wasn't expecting
something like this. What was this about? Why was he so upset?"
Experts in 1st Amendment law say it is generally understood that
officials-- including judges-- cannot confiscate or destroy notes or records
that journalists obtain in public events.
"This is a major embarrassment. And it is unsupportable as a matter of
law," said Jane Kirtley, a law professor at the University of Minnesota and an
expert on press law. "They could have said 'No Press Allowed.' But if they let
the reporters in, and there are no ground rules in advance, they can't then say
you can't report that or you can't use that."
She said that that principle was invoked recently in Mississippi when a
judge tried to punish a reporter for writing a newspaper article about a
defendant's juvenile record, which had been described in an open court
hearing. The state Supreme Court ruled that the information, once made
public, could not be declared confidential afterward.
Kirtley also said the action by Scalia and the marshal appeared to violate
the Privacy Protection Act of 1980, which says: "It shall be unlawful for a
government officer or employee... to search for or seize any work product
materials possessed by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast or other similar form of
public communication." The law also says victims of such official confiscations
may sue the violators.
Neuborne said he was disappointed by Scalia's action in light of his past
decisions upholding the 1st Amendment. "This is very surprising coming from him,
since he has a good grasp of the 1st Amendment," Neuborne said. "This doesn't
live up to the ideals of the 1st Amendment. He should know he can't use a U.S.
marshal as a private police force to enforce his will." ....
Last year, Scalia's aversion of the press made headlines in Cleveland. He
was given the annual Citadel of Free Speech award by the City Club of Cleveland
in honor of his efforts on behalf of the "preservation of the 1st
Well spoken were the words of Lord Acton, "Power tends
to corrupt, and absolute power corrupts absolutely." The actions of U.S. Supreme
Court Justice Antonin Scalia is indicative of the entire judiciary in the United
States, to wit, the law is for peons to obey, not for judges, and certainly not
for U.S. Supreme Court Justices. After all, the words come forth out of
their mouths "Is the Law of the Land! They spoke, and it was so! And they
saw that it was good! And the evening and the morning was the first
What does it take to convince all American's that only
through the passage of J.A.I.L shall integrity reign in this nation, and without
the passage of J.A.I.L. there shall be no integrity? - Ron