Monday, April 12, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: A U.S. marshal breaks the law

During Scalia speech on constitutional rights -- how embarrassing

It's ironic, because in his votes on the court, U.S. Supreme Court Justice Antonin Scalia has largely been a friend and defender of the First Amendment.

But the behavior of U.S. marshals -- apparently acting at Justice Scalia's behest in a high school auditorium in Mississippi on Wednesday -- betrayed America's proud tradition of press freedom; appeared on their face to violate the very law such officers are sworn to uphold; and constitute an embarrassment and a stain on the reputation of the court itself.

Alone among the justices, Justice Scalia forbids television cameras when he speaks in public. He usually tries to clear the room of reporters. He strictly insists, usually in advance, that his words not be recorded.

That's a bit goofy -- and increasingly harder to enforce, in this technological age -- but if the justice wants to set this as a condition of his willingness to speak in a private forum, that's his right.

On Wednesday afternoon, however, no warning of Justice Scalia's rule was given to event hosts or reporters when he spoke at the Presbyterian Christian High School in Hattiesburg, Miss.

Antoinette Konz, a reporter for the Hattiesburg American, said she received a written invitation to cover the event. "They called back to make sure we would be there Wednesday," she recalled. "And when we arrived, they gave us a place to sit in the front row."

Soon after Justice Scalia entered the gym, a U.S. marshal told a TV reporter to stop recording. The justice then spoke to the assembly of students, faculty and parents about the importance of the Constitution.

The Constitution protects the rights of all, he said, according to a reporter's account. It is a "brilliant piece of work. ... People just don't revere it like they used to," he said.

Near the end of the talk, deputy U.S. marshal Melanie Rube, who is evidently among the irony-deprived, confronted two reporters who were listening to and taping Justice Scalia's comments.

"She came up and demanded the tapes. She told us that Scalia did not want the speech to be tape-recorded," Ms. Konz said. When The Associated Press reporter balked, "the marshal grabbed the tape recorder."

After the AP reporter's digital tape was erased, Ms. Konz said, the marshal removed the tape from her recorder and walked away with it.

"This is a major embarrassment. And it is unsupportable as a matter of law," responded University of Minnesota Law professor Jane Kirtley, an expert on press law. "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."

Professor Kirtley said the action by Justice Scalia and the marshal appeared to violate the Privacy Protection Act of 1980, which stipulates: "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 even says victims of such official confiscations may sue the violators. Which sounds like a good idea, in this case. Who knows -- it might even reach the Supreme Court.

Marshal Rube's boss, U.S. marshal Nehemiah Flowers, defended the deputy's actions Friday, saying one of the service's responsibilities is to provide a traveling Supreme Court justice with security.

But, "A marshal is there for security, not to censor what a justice has said," responded New York University Law Professor Burt Neuborne, former legal director of the American Civil Liberties Union. "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."

"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," Ms. Flowers told the AP of his subordinate. "Even with hindsight, I can't think of what other steps she could have done."

How about this: She could have told Justice Scalia, "I'm sorry sir, but even you and I are not above the law."

Couldn't she?