Right or wrong?

Off Topic
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[i]Associated Press - Saturday, April 10, 2004

U.S. marshal defends Scalia speech erasure

Justice spurs debate over press freedom

By Holbrook Mohr, Associated Press

JACKSON, Miss. – The US marshal Friday defended the erasure of two journalists? recordings of a speech by Supreme Court Justice Antonin Scalia but suggested that Scalia?s request that his remarks not be recorded should have been publicly announced.

During Scalia?s speech Wednesday in Hattiesburg about the Constitution, a woman who identified herself as Deputy Marshal Melanie Rube demanded that a reporter for the Associated Press erase a digital recording of the justice?s comments.

The reporter, Denise Grones, initially resisted, but later showed the deputy how to erase the recording after the officer took the device from her. Rube also made a Hattiesburg American reporter erase her tape.

The Reporters Committee for Freedom of the Press said Thursday that the deputy violated the law and ?the fundamental tenets of press freedom.?

But Rube?s boss, Nehemiah Flowers, the US marshal for the Southern District of Mississippi, defended the deputy?s actions, saying yesterday that one of the service?s responsibilities is to provide a traveling Supreme Court justice with security.

?The justice informed us he did not want any recordings of his speech and remarks and when we discovered that one, or possibly two, reporters were in fact recording, she took action,? Flowers said. ?Even with hindsight, I can?t think of what other steps she could have done.?

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.[/i]

The rest is at: http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/04/09/national1316EDT0552.DTL

So, did the Justice have the right to prevent the recording of what he had to say? I think he did, just like any of us do. What do you think the law says?

I’m really looking forward to what Boston Barister has to say on this one.

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I can understand if it was announced ahead of time, and I maybe agree that he should have a right to prohibit recording his speech. Although a Supreme Court Justice is a public official and I think that any speech he gives should be public anyway.

I kind of have a problem with seizing recording devices when you haven’t expressly forbidden them, though. You start to run into free speech issues at some point. Of course the fact that I really dislike Scalia anyway might have some influence on my opinion, though.

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I suppose that if Anthony Robbins were to have been speaking instead, I’d have to say that he has some legal protection against “unlawful reproduction” of his speeches. At the same time, Scalia is a public official, and it seems a bit shady that he could prevent his words from being recorded. To be honest, I don’t think this is that big of a deal. Were Scalia to prevent a supreme court case from being recorded, it would be a big deal. He should’ve warned them beforehand, but oh well.

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My opinion is that there might be some parallel between the artists who prohibit recording devices at concerts, or professors who prohibit recording of their lectures without prior consent. However, I think using federal marshalls to seize the tapes, rather than private security (as at a concert) goes over the line.

I’m going to defer to UCLA 1st Amendment Professor Eugene Volokh on this one:

http://volokh.com/2004_04_04_volokh_archive.html#108138698631645701

…

If this report is accurate, then I don’t see any legal justification for the marshal’s demand, or the marshal’s seizing the tape recorder (which therefore sounds like a Fourth Amendment violation to me). To my knowledge, there’s no law – it would presumably have to be a Mississippi law – prohibiting tape recording of public events, even ones on private property. Even if the reporters had refused to abide by the Justice’s request, it seems to me that at most the marshals could have insisted (presumably on the property owner’s request) that the reporters leave the property. …

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Here’s my take on it, and I might be wrong. Scalia may have agreed to speak but in order to feel secure that any off the cuff statements weren’t taken to the bank by the press he added the stipulation that no recordings would be made. That seems to be the case since in one instance advance notice was given.

So the organizers at one venue screwed up and didn’t give notice. Who should have to deal with any negative repurcussions? If the Justice tossed out an ill thought out comment, or put some words together that didn’t mean what he intended he’s the one that’s going to suffer the consequences in the headlines, not the organizers of the venue. “You can’t unring the bell” comes to mind here.

I didn’t get that any property was siezed. From the way it’s worded the agent had the recorder and was just trying to figure out how to erase the recording, not confiscate the recorder.

The end result of this whole thing may very well be that public figures won’t be letting their hair down and saying anything in a relaxed and more informal setting for fear of their speech being recorded and the less flattering parts of it being used to “make news”.

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SteelyEyes: For the most part, I agree with you. But keep in mind that confiscating the recorders does NOT prevent journalists from quoting whatever he says. If Scalia misspoke, it would still be reported. My guess is that he was more interested in retaining rights to the speech.