Scalia and His Speeches   

A little-known federal statute should have protected journalists from having their recordings confiscated.

When he's not busy haranguing some hapless advocate from his perch on the U.S. Supreme Court bench, Justice Antonin Scalia likes to give speeches. But he expects to give them on his own terms. One is that he doesn't want any cameras or tape recorders on the premises.

Scalia's policy is longstanding. Apart from a few appearances on PBS, he's been camera-shy for most of his career. Whether he's speaking before schools, bar associations or civic groups, the rule is always the same. In March 2003, with exquisite irony, the City Club of Cleveland acceded to Scalia's demand that broadcast journalists, including C-SPAN, be barred from covering his acceptance of the club's "Citadel of Free Speech" award.

So it wasn't a big surprise when, before Scalia spoke at William Carey College in Hattiesburg, Mississippi, in early April, it was announced that video and audio recording would be prohibited. But somehow or other, no similar announcement was made when Scalia gave a second talk at Presbyterian Christian High School later that day (see Drop Cap, June/July).

In fact, school officials had sent Antoinette Konz, a reporter for the Hattiesburg American, a written invitation to cover Scalia's speech. When she arrived, she was seated in the front row, primed to listen to Scalia talk about the importance of the Constitution. Both she and Associated Press reporter Denise Grones were using recorders. Near the end of the speech, Deputy U.S. Marshal Melanie Rube approached the two journalists and demanded the tapes. When the journalists demurred, the marshal grabbed the recorders and erased their contents. She later agreed to return them, but only after making sure that the 40 minutes memorializing Scalia's remarks had been recorded over.

The incident sparked a wave of outraged news reports, columns and editorials. The Reporters Committee for Freedom of the Press sent angry letters of protest to Scalia and to the Justice Department.

But Scalia probably does have the right to keep recorders out, at least as long as he's acting in his private capacity and giving speeches to non-government groups. The problem here was that no announcement was made at the outset, turning an ill-advised policy into an unconstitutional prior restraint. And when the federal marshal enforced the justice's policy by grabbing the journalists' recorders, it was a clear violation of the Privacy Protection Act of 1980, a rare example of legislation that singles out the press for preferential treatment.

In 1978, the Supreme Court ruled that law enforcement searches of newsrooms and seizures of journalists' materials don't violate the First Amendment. The high court also found that they don't even violate the Fourth Amendment, which protects everyone from unreasonable searches and seizures, as long as the search warrant was properly issued and executed.

Congress responded by passing the Privacy Protection Act. It forbids federal or state officials to search for or seize newsgathering materials, such as tapes and film, except under very limited circumstances, such as to prevent death or bodily harm. As a result, newsroom searches and seizures are so unusual that most American journalists are barely aware that the statute exists.

A few days after the incident, Konz received a letter from Scalia. He apologized, asserting that, although his policy is to "refuse radio and television coverage of [his] public appearances," he would never have countenanced the seizure of a tape made "for the purpose of assuring the accuracy" of a news report. The marshals, Scalia said, were only doing their jobs, and what occurred was his own fault for not making sure that the ground rules were clarified at the outset. Scalia added that even if a reporter had violated the policy he wouldn't have wanted any tape to be erased. "I abhor as much as any American the prospect of a law enforcement officer's seizing a reporter's notes or recording," he wrote. And in a separate letter, he assured the Reporters Committee that "the action was not taken at my direction."

And yet, this isn't the first time something like this has happened. The Los Angeles Times reported a similar incident in 1997, at another of Scalia's speeches. That one was sponsored by Town Hall, a civic organization whose programs are generally open to the public. An unidentified reporter who managed to cadge a ticket to the sold-out event brought a tape recorder along. At the conclusion of Scalia's speech, according to the Times, "two security personnel saw the reporter's tape recorder and attempted to confiscate the tape, saying Scalia had given orders that he did not want the speech taped. The tape was not relinquished."

Of course, overly zealous security personnel may have been the problem then, too. Or perhaps the problem was an overly sensitive justice.