Legal experts question the 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 in Mississippi, reports the Los Angeles Times. Experts questioned both Scalia’s practice of barring recordings of remarks made in public and whether the seizure 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 law Prof. Burt Neuborne of New York University. “A marshal is there for security, not to censor what a justice has said.”
Soon after Scalia entered the gym of Presbyterian Christian High School in Hattiesburg, a marshal told a TV reporter to stop recording. The justice spoke to the assembly of students, faculty and parents about the importance of the Constitution. Near the end of the talk, Deputy U.S. Marshal Melanie Rube confronted two reporters who were recording Scalia’s comments. “She came up and demanded the tapes,” said Antoinette Konz of the Hattiesburg American newspaper. “She told us that Scalia did not want the speech to be tape-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.
“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. “They could have said, ‘No Press Allowed.’ But if they let the reporters in and there are no ground rules announced in advance, they can’t then say you can’t report that or you can’t use that.” Kirtley said the marshal’s action 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.