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The National Security Archive at George Washington University

CONSORTIUM NEWS - Edited by Robert Parry


April 10, 2004

Justice Scalia Illegally Uses Federal Marshalls to Force Reporters to Erase Audio Tapes of His Public Speech

Scalia orders reporters to erase Constitution speech (4/8/2004 - USA Today)

Scalia orders reporters to erase Constitution speech
AP via USA Today (4/8/2004)

Two reporters were ordered Wednesday to erase their tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia at a Mississippi high school.

Scalia has long barred television cameras from his speeches, but does not always forbid newspaper photographers and tape recorders. On Wednesday, he did not warn the audience at the high school that recording devices would be forbidden.

During the speech, a woman identifying herself as a deputy federal marshal demanded that a reporter for The Associated Press erase a tape recording of the justice's comments. She said the justice had asked that his appearance not be recorded.

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

The deputy, who identified herself as Melanie Rube, also made a reporter for The Hattiesburg American erase her tape.

Scalia gave two speeches Wednesday in Hattiesburg, one at Presbyterian Christian High School and the other at William Carey College. The recording-device warning was made before the college speech.

At a reception following Scalia's speech at William Carey, the justice told television reporters from Hattiesburg station WDAM-TV to leave. A member of his entourage also told newspaper photographers they could not take pictures, but a college official reversed the order after non-media guests started snapping photos.

William Carey spokeswoman Jeanna Graves later sent an apology to the media.

"I specifically asked for protocol and was told that the media would have access to Justice Scalia during the reception," Graves wrote in an e-mail. She said she was "embarrassed and angry" over the incident.

Supreme Court spokeswoman Kathy Arberg said that it is up to Scalia and his staff to set guidelines for coverage of his events.

"It's standard that his speeches are not televised," she said.

Last year, Scalia was criticized for refusing to allow television and radio coverage of an event in Ohio in which he received an award for supporting free speech.

Scalia, who was appointed to the bench by President Reagan in 1986, told students that the Constitution's true meaning must always be protected.

"The Constitution of the United States is extraordinary and amazing. People just don't revere it like they used to," Scalia told a full auditorium of high school students, officials, religious leaders.

He said he spends most of his time thinking about the Constitution, calling it "a brilliant piece of work."

Legal Experts Express Concern About Erasure of Scalia Tapes
NY Times 4/9/2004

A federal marshal who required two reporters to erase audiotapes of a speech by Justice Antonin Scalia at a Mississippi high school on Wednesday may have violated the law, legal experts said yesterday.

Justice Scalia does not typically allow audio or video recorders at his speeches, though he often allows print reporters to attend and take notes. Imposing such conditions ahead of time for speeches in private settings generally creates no legal problems, the legal experts said. But seizing or destroying a reporter's notes or tapes afterward in the absence of an announced ban may violate a federal law and the Fourth Amendment's prohibition on unreasonable searches, they said.

The reporters involved in the incident at Presbyterian Christian High School in Hattiesburg had been invited. They openly taped Justice Scalia's speech and were confronted by a deputy marshal, Melanie Rube, during a question-and-answer session afterward.

The journalists and the United States Marshals Service, which provides security for Supreme Court justices when they travel, offered differing accounts of precisely what happened next.

Antoinette Konz, who covered the speech for The Hattiesburg American, adamantly denied having been told of a taping ban. Her tape would confirm her account, Ms. Konz said, had she not been forced to erase it.

Ms. Rube, the deputy who confronted the reporters, declined to comment.

Nehemiah Flowers, the United States marshal in Jackson, Miss., said the reporters had been advised of the ban "intermittently, individually."

"It is my understanding that Deputy Rube did not touch anyone and asked politely if they would erase the tape," Mr. Flowers added.

He denied that such a request was coercive or unlawful. "We do have that authority," he said. "This is a justice of the Supreme Court, and as far as we're concerned, we're following the court's orders."

In a statement released by the Marshals Service in Washington, a spokeswoman said Ms. Rube's actions "were based on the justice's standing policy prohibiting such recordings of his remarks."

"That policy," the statement continued, "was most recently enunciated immediately prior to the first speaking venue attended by Scalia that morning." The speech at the high school was in a different place and later in the day.

Legal experts said the deputy's actions were legally questionable.

"The seizure and destruction of a reporter's tape recordings is remarkable, and I think it would be difficult to find any law that would justify it," said Luther T. Munford, a First Amendment expert at Phelps Dunbar, a law firm in Jackson.

A Supreme Court spokesman declined to comment beyond noting that Justice Scalia prefers not to have audio or video recordings made of his speeches and conveys that requirement to his hosts.

The Reporters Committee for Freedom of the Press protested the seizure yesterday in a letter to Attorney General John Ashcroft. The letter noted that the deputy's action appeared to violate a 1980 federal law prohibiting most seizures of journalists' resource materials.

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