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Can You Hear Me Now?

Posted by Rick · April 10th, 2004 · 9 Comments

The Las Vegas Review-Journal, on page 11A of today’s paper, reports that a U.S. marshal Friday confiscated recorders from two reporters and erased them after they recorded remarks made by Justice Scalia during a public speech. The reporters had no advance warning — although one wonders what Scalia fears in having his accurately-recorded remarks reach a wider audience — that recording devices were not allowed. Officials calls this “an oversight.”

Others note that it is a violation of the Privacy Protection Act, not to mention “the fundamental tenets of press freedom.”

Scalia was speaking at a Christian high school about the Constitution. Given the level of involvement between the government and Christian groups in pushing anti-Constitutional agenda, one wonders just exactly what Scalia said that he’s so afraid of that any evidence he said it has to be erased.

Nehemiah Flowers, the U.S. Marshal of the Southern District of Mississippi notes that it is one of the Marshal’s services to provide security for a Supreme Court Justice. Thanks to the quick-thinking, quick action and able work of the U.S. Marshal, Scalia can rest secure from the worry that Americans will ever hear what he said to his Christian audience about the Constitution he and they sometimes seem to be working so hard to defend…against.

Categories: Law and Legal Issues


9 responses so far ↓

  • 1 YesIHearYou // Apr 10, 2004 at 5:02 pm

    Rick, you’re starting to sound paranoid…

    Ask one of the attendees what he said. Ask the reporters… it’s not like they were mind-blanked after all. 🙂

    There may have been a contract with a local station for exclusive coverage… there are lots of possibilities. Not to mention the fact that as a general rule, it is only common courtesy to get permission to record someone’s speech before they give it – the law professors require it before you can record their classes… so why is a Justice not entitled to the same respect?

  • 2 Rick // Apr 10, 2004 at 9:22 pm

    Some of what you said is true, as far as it goes. Some people don’t allow recordings and some have exclusive deals with others that preclude allowing just anyone to do the recording.

    According to the news story, there was no notification given that reporters were not allowed to make recordings before this Christian audience.

    And, of course, you’re without a doubt also right that no one was “mind-blanked.”

    It was known that reporters would be in the audience. The reason reporters tape record things is not to safe-guard against being “mind-blanked.” It is so that a) they can make sure the quotes they use are accurate (well, those who care about that, anyway) and b) in case someone denies having said what they’re quoted as having said, there is a recording to back the reporter’s story.

    Additionally, there are laws (guessing from your post that you’re a law student, you should know about this) that control things like when police can confiscate a reporter’s work product. The tape recordings qualify as work product. Even if, somehow, the reporter recorded the public statements of a Supreme Court Justice where he had not been told in advance that such recording was not allowed in the mistaken belief that these might be newsworthy, there are proper procedures in the United States, as opposed to some Third-World countries, for government agents taking things away from reporters.

    Maybe I am paranoid. But Scalia has a habit of making comments that appear to show his Catholic beliefs shade his interpretation of the Constitution, thus driving his rulings, rather than the other way around. He’s also shown himself to be willing to ignore the doctrine of stare decisis when he thinks that it doesn’t jive with his personal “correct” interpretation of the Constitution.

    I think it’s interesting to hear what a Supreme Court Justice with such a record is saying during a speech at a Christian school before a largely Christian audience. I think it’s also interesting that a Supreme Court Justice’s recorded speech in such circumstances might be improperly confiscated from reporters in a non-police state with an Administration as open and friendly as the current one.

    At the time I wrote this post, I didn’t know there was another story printed the day before in the same newspaper (also on page 11A) that mentions that First Amendment experts are questioning the legality of the seizure. The story appears to indicate that Scalia sanctioned the seizure. It points out that he, alone among all the Supreme Court Justices, “forbids television cameras when he speaks in public, and he usually tries to clear the room of reporters.” These reporters were invited to be there by the school. The U.S. Marshal forcibly took the tape from the reporter after he refused to turn it over. The tape had other information from other stories, which the reporter needed. The Marshal only agreed to return it after taping over 40 minutes of the tape.

    New York University law professor Burt Neuborne, former legal director of the ACLU, said:

    “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.” He also noted, “A marshal is there for security, not to censor what a justice has said.”

    The article also notes that “[e]xperts 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, of course, it’s illegal under federal law.

    Of course, it could all be perfectly innocent and just because a few laws were broken, that may be nothing. I could just be on a duck-hunting expedition here.

  • 3 Bob // Apr 12, 2004 at 2:17 pm

    Scalia has apologized to the reporter.

    Witness the power of The Unspun Zone™!


  • 4 Rick // Apr 12, 2004 at 2:32 pm

    Yeah, he called me to say that he was amazed at how worked up my readers could get over something like this.

    Ha! The power of The Unspun Zone™, indeed. You shudda bin a Comedian, Mr. B!

    Scalia has also said he’s going to revise his policy regarding handheld recorders for reporters. He agreed that allowing the recorders would “promote accurate reporting.”

    As I implied before, Scalia needs to overhaul his ENTIRE policy regarding public appearances. He, alone of all the Justices, refuses to allow his public appearances to be documented by the press. And as noted in the Neuborne quote in my previous comment above, NO public official should be able to speak in public and refuse to have his remarks recorded. This, I think, is one of the things that would be fundamentally important in a democratically-oriented Republic.

  • 5 Bob // Apr 12, 2004 at 2:44 pm

    As open minded as YesIHearYou’s comment was, the act of expressing an apology does make it look like even Scalia thought the actions of the Marshalls were over the line.

    By the way, you can read this message but its my policy that you have to reformat your hard drive when you’re done. Just a privacy issue of mine, I know you all understand ….

  • 6 Rick // Apr 12, 2004 at 2:57 pm

    In fairness to YesIHearYou, Scalia’s apology doesn’t mean that YesIHearYou was wrong or that I’m somehow vindicated as respects his comment about my being paranoid.

    Presumably, YesIHearYou meant that I’m paranoid to think that Scalia is hiding something by not allowing recordings which would permit accurate reporting and evidence in case of denials. It’s still possible for Scalia to have thought that the marshall was wrong and that he stepped over the line — even possible for Scalia to admit that laws were broken — and for me to still be paranoid.

    In fact, some people might say that makes it MORE likely that I was being paranoid. After all, in the end, Scalia presumably agreed that taking the recordings should not have been done, thus indicating a willingness for those recordings to have been allowed.

    Or at least that’s what he WANTS us all to think! (Me, paranoid?)

  • 7 Rick // Apr 12, 2004 at 3:30 pm

    For those who care, Scalia’s written apology is available here:


    Much more information on the whole affair is available here:


  • 8 Lisa // Apr 13, 2004 at 4:59 pm

    Here is a quote from today’s paper. FWIW, it indicates that the marshall erased the tapes without Scalia’s knowledge. It also said, though, that the exchange between security and the reporters happened in the first row, so I’m not sure how he could have not known. In either event….

    “As I understand it from press reports, a United States Marshal erased, or caused you to erase, the tape recorder that you were using for the purpose of assuring the accuracy of your press report,” Scalia wrote in an apology to both reporters. “I imagine that is an upsetting and indeed enraging experience and I want you to know how it happened.”

    Scalia explained that in a speech earlier that day he had asked that his appearance not be recorded.

    “That announcement was not repeated at the high school, but the marshals believed (with good reason) that the same policy was in effect,” Scalia wrote.

    “The marshals were doing what they believed to be their job, and the fault was mine for not assuring that the ground rules had been clarified.”

  • 9 Rick // Apr 13, 2004 at 5:07 pm

    The quote from Scalia is interesting. How are we to interpret this?

    “[T]he fault was mine for not assuring that the ground rules had been clarified.”

    Which ground rules? The First Amendment? The Fourth Amendment? The federal law contained in the Privacy Protection Act?

    Usually, we assume that law enforcement officers understand these kind of “ground rules.” I doubt anyone would accept a police officer’s shooting a shoplifter at a 7-Eleven because he didn’t understand the ground rules.

    Oh, wait…it must be this one: “Even though I’m a Supreme Court Justice, you still have to follow the laws when trying to prevent someone from doing something I don’t like (just in case it ends up being reported).”

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