"Scalia tape-erase order raises First Amendment questions
By David G. Savage, Los Angeles Times, 4/9/2004

WASHINGTON -- First Amendment specialists questioned the legal basis yesterday for a deputy US marshal -- apparently acting on the orders of Supreme Court Justice Antonin Scalia -- to confiscate and erase tape recordings made by two reporters invited to hear the justice speak at a high school gymnasium.

The specialists questioned not only Scalia's practice of barring recordings of remarks made in public, but whether the seizure may have violated a federal law intended to shield journalists from having notes or records confiscated by officials.

"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 New York University law professor Burt Neuborne, former legal director of the American Civil Liberties Union. "A marshal is there for security, not to censor what a justice has said."

Alone among the justices, Scalia bars television cameras when he speaks in public, and he usually tries to clear the room of reporters. He insists, usually in advance, that his words not be recorded.

On Wednesday afternoon, however, no warning of his rule was given to event hosts or reporters when Scalia spoke at the Presbyterian Christian High School in Hattiesburg, Miss.

"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, the headmaster.

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."

Soon after Scalia entered the gym, a marshal told a television reporter to stop recording. The justice spoke to the assembly of students, faculty, and parents about the importance of the Constitution.

The Constitution protects the rights of all, he said, according to a reporter's account. It is a "brilliant piece of work. . . . People just don't revere it like they used to," he said. Near the end of the talk, deputy US marshal Melanie Rube, who works in the Hattiesburg area, confronted two reporters who were listening to and taping Scalia's comments.

Specialists in First 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 University of Minnesota law professor Jane Kirtley, a press law specialist."

CHECK OUT THE SOURCE

"Specialists in First Amendment law say it is generally understood that officials -- including judges -- cannot confiscate or destroy notes or records that journalists obtain in public events."

Guess we are already in transition from America to AMERIKA!

Yet they violate this very thing every day...

The New US Constitution

Amendment One.

How much freedom and civil rights can you afford? That is how much you will be given!

There will always be other copies to hand out.

anyone got a copy to share, I'd like to share it!?!

Long live P2P!!!

Interesting article. Does the First Amendment give anyone the right to record what someone else doesn't want recorded? What about the rights of the speaker?

Perhaps this is a question of Public speech vs. Private speech.

Scalia is a government official speaking at a public university in an event open to the public. I believe that clearly falls under public speech. Additionally it has been made very clear that people in the public eye enjoy less privacy protection so that cannot be used as the basis for Scalia's argument.

I find it incredibly ironic that a Supreme Court justice that holds the Constitution in such reverence would wish to prevent people from sharing his speeches with others.

Wait a minute, friends and neighbors.

If it was a concert and there was a sign that said "No photos or recording devices" and you tried to sneak one in anyway, you would expect it to be confiscated.

Scalia does this before the start of his "show."

I think the guy is simply afraid he will say something stupid. If his speeches are never recorded, it's merely his word against the 1000 or so people at the speech.

"Specialists in First Amendment law say it is generally understood that officials -- including judges -- cannot confiscate or destroy notes or records that journalists obtain in public events."

And here's a little sneak peek at the flip side. When I was a newspaper writer, our "specialists in the First Amendment" encouraged the reporters to systematically destroy all notes from completed stories.

Nothing to confiscate. Nothing to hide.

It makes me wonder how much longer Congress and the Senate will tolerate this rougue judge's action.

It is obvious that the Supreme Court itself is incapable of bringing this individual into the mainstream.

where can I get a copy, please?

Millions of people are buying tuners and reception devices for their computers. The Administration is being hoisted on their own petard, because the Orwellian duckspeak is a cynical shallow public relations ploy to spin at all costs. Even having a long-range policy plan is impossible for the "Television President," (President Cheney I menat to say)

So the upshot is---a million miles of tapes, and Tivo files are available to prove, indeed, Bush and Conee did say what they are now saying that they didn't say!

We might be alarmed to think that the Constitution will soon be suspended. Don't believe for a minute, folks, given the fear-mongering by the White House, that the public would not vote RIGHT NOW to suspend the Bill of Rights.

But it's already happened. This has been the bloodthristy blind goal of "the Coproration" since 1972 to pack the important judgeships to throw out ALL regulations whatsoever restricting coprorations, including workplace or environmental hazards. Supremo Scalia is acting increasingly crazy. He is frustrated that he has been marginalized and shunned by his own contemporaries on the Bench.

Please note that an obscure regulation of the Secret Service allows them to erect barricades for three blocks to keep Bush from seeing any protestors. A little problem with the Right to Assemble, I'd say.

Those kids with the tape recorders need to sue Scalia. Paul Krugman of the NY Times was the earliest (and bravest) journalist to squawk. His statement, was, "I was reading Henry Kissinger's masters thesis from 1947 and it struck me how contemporary was his quote: "The moderates of the Weimar Republic did not estimate how ruthless were the methods that the Nazis intended to employ. Revoltionaries, in fact, hate deomocracy."

I fully believe Bush is going to win the election. That means that words such as I am typing now will require people "like us" to live in safe-houses next year. Just like the French farmers hiding the Resistance Fighters in barns and haylofts.

John Kerry is not ruthless enough to stop the destruction of fragile Democarcy.

See you in the hedgerows and back streets.

The word needs to go out. All Scalia speeches must surreptitiously taped and all of them must released on p2p networks.

Im serious. Reward money should be offered.

I was very surprised to hear this story covered by Peter Jennings/ABC News.
I defer to the lawyers among us: Does a judge have the authority to stifle coverage (i.e. audio recording) of a public appearance?
He rehearsed a speech. It was not "off the cuff". What is he afraid of? (Excuse my French) Having his words bite him in the ass?

Generally, a public figure, employed by the government, who is making a public speech, should EXPECT that their picture will be taken, their words recorded in some fashion (videotape, audiotape, notes taken,etc.)....this really is crazy....this kind of thing where law enforcement or the military takes away journalists cameras or destroys their recordings is something we expect in the communist countries of the 60s or Nazi Germany in the 30s...not in 21st century USA...but, given the zeitgheist...maybe this is just the thing we should expect.

Yes, Code, generally. People in the public eye or in public service expect the cameras and microphones. Why the need for privacy or secrecy? Does he just want the "exclusive" footage for his upcoming documentary? Is it all about the copyright?

What a HYPOCRITE!!! How dare he talk about our constitutional rights and proceed to violate them so obviously and obnoxiously!! He deserves to be removed from the court for such moronic actions.

How about POMPOUS ASS as a description?

Well, tomsong, Abe Lincoln ran roughshod over the Constitution, too. Now he is considered a hero. Go figure.
Habeas Corpus? What's that?

However, since reporters were there, tape or no tape, I think if Scalia had said anything outrageous, it would have been reported.

There are legitimate reasons for not wanting to be recorded. And fair warning was apparently given beforehand. I'd like to hear both sides of this story before making a judgment about why Scalia forbids recordings.

As for the authority to confiscate tapes, yes, I'd like a good legal answer to Lachette's question, too.

I agree with Code & autodidact at the same time.

I think autodidact is right in wanting to hear more about it and how fair warning was given before hand. I am also with code in that, well.. freedom in this coutry is in bad shape and we need to keep an eye on our leaders.

A side note:

Citizens have always (always) felt that their rights were being violated or infringed upon during times of war or concerns about national security.

Yes, Hitler used this as an excuse, which is exactly why we must keep an eye on our leaders. Citizens felt the same way during WWII.

I think it is very important to realize that citizens have always kind of cried wolf about the government taking away rights during times of war, especially in this country.

It's nice to think that nothing can ever take away liberty ever, but the bottom line is in reality, sometimes it happens even when you have leaders with good intent (who even achieve good results). It is a byproduct of living in a society which must defend itself.

Could the Patriot Act be used for only good? Will it be lost among thousands of other archaic laws when terrorism is finally elminated in a decade or two? When globalization is firmly in place.. when we live in an entirely different world?

Will Brussels have even worse authoritarian type laws? Better? Will it all be good again until the next time of war and concern about national security, when citizens start screaming that war is being used to take away their rights?

Certainly our country is in the shitter right now. I think the issue of copyright reform may (and I'm serious) be a bigger threat to our liberty than the patriot act.

I am not making judgement either way, and I regret voting for George Bush because I honestly don't trust him. Will I look back in 15, 25, or 35 years and see that this wasn't as bad as it seemed?

Just some thoughts to think about. I may or may not be in my right mind when I say this. I'm sure the questions would be answered quite aggressively on this site. But I think they are important questions, some of which may not have a real answer for 20 or 30 years.

"Wait a minute, friends and neighbors.

If it was a concert and there was a sign that said "No photos or recording devices" and you tried to sneak one in anyway, you would expect it to be confiscated.

Scalia does this before the start of his "show."

A concert is explicitly a for profit enterprise. The performers in question are exhibiting their copywritten works for the purpose of entertaining AND financial gain. Scalia is not doing this for the same purposes, or at least, I hope that he isn't.

A band placed in the same situation should expect the same thing. It's one thing to give a performance and another to give a speech.

This is just an example of how little our rights mean to some. Such issues as we are seeing today are the very ones we fought the Revolutionary war for. But pardon me for saying that...the gov't might think I'm a terrorist now...(I'm not)

I'm with the minority here in wondering why Scalia won't allow taping. I'd like to know. If its just because of his own ego, then he needs to be removed. I do believe he shouldn't be allowed to do this w/o some real good reason, merely saying "I don't want it" won't be good enough for me.
There are levels and levels here, but what it boils down to is one man is trying to rewrite laws using what power is granted him by the people. I know, justices are appointed, but the laws were created by people.
There's so much in the news lately about the Constitution, that maybe it does deserve looking at. We can't depend on it now as much as we did even 30 years ago, because companies and justices like this one are finding loophole after loophole, legally mind you, to justify their own agendas. Maybe what's needed is an "Anti-Loophole" Ammendment. That could say if a loophole is found, it must go before Congress, the President AND the public before being used? Na, that wouldn't work, since Congress and the (current) President are the ones that create and use em in the first place.
ttmmm

There are quite a few articles about Scalia's antics. "Scalia spoke Wednesday at Presbyterian Christian High School and at William Carey College. He did not warn the high school audience that recording devices would be forbidden, but issued a warning before the college speech.
Later Friday, Dave Turner, a spokesman for the marshals service in Washington, said: "At this stage, ascertaining the facts of exactly what happened is important to anything the marshals service might do in the future."
In a letter to Flowers and to U.S. Marshals Service Director Benigno G. Reyna and Attorney General John Ashcroft (news - web sites), the reporters group said the deputy violated the Privacy Protection Act. The act says government officers may not seize journalists' materials. "
http://news.yahoo.com/news?tmpl=story&u=/ap/20040410/ap_on_re_us/scalia_reporters_11

"Barbara Cochran, president of the Radio and Television News Directors Association, sent a letter Friday to Benigno G. Reyna, director of the U.S. Marshal Service, and Nehemiah Flowers, U.S. Marshal for the southern district of Mississippi.
'This high-handed and unlawful seizure of a journalist's work product without any regard whatsoever for the rights and responsibilities of the news media product is totally unacceptable,' she wrote in the letter published on the group's Web site.
There exists no legal precedent to support the conclusion that it is permissible for government officials to seize and destroy recordings reporters have made in the course of covering a public event. Actions such as those taken by Deputy Marshal Rube, which are designed to prevent reporters from disseminating information that has been lawfully acquired, amount to nothing short of censorship.' "
http://www.cnn.com/2004/LAW/04/09/scalia.tapes/index.html

Gdziemann, regarding your comment:
"If it was a concert and there was a sign that said 'No photos or recording devices' and you tried to sneak one in anyway, you would expect it to be confiscated."

Hehe, a friend of mine brought in a camcorder to an unnamed concert, in the second row!! Tickets clearly said, "No photos or recording devices... blah blah blah." Everything was fine for about 30 minutes until a stage roadie/label hack saw my friend. The guy ran down and in a stern voice said, "put it away or lose it!!" It was very funny to see how fast my friend reacted. Later, at the bands afterparty, my friend saw the label hack and tried to make peace with him, but that guy was still PISSED. The footage has been kept private.

Expect martial law, either after Bush loses this November, or before his second term expires. He's not leaving.