WASHINGTON — First Amendment experts on Thursday questioned the legal 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.
The experts questioned not only Scalia's practice of barring recordings of remarks made in public, but also whether the seizure may have 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 Burt Neuborne, a law professor at New York University and former legal director of the American Civil Liberties Union. "A marshal is there for security, not to censor what a justice has said."
Alone among the justices, Scalia forbids television cameras when he speaks in public, and he usually tries to clear the room of reporters. He strictly insists, usually in advance, that his words not be recorded.
On Wednesday afternoon, however, no warning of his rule was given to event hosts or reporters when Scalia spoke at Presbyterian Christian High School in Hattiesburg, Miss.
"This was our first effort at having a national speaker on campus. We assumed the public and reporters would want to be here," said Barrett Mosbacker, the headmaster.
Antoinette Konz, a school 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 Scalia entered the gym, 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.
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 works in the Hattiesburg area, confronted two reporters who were recording Scalia's comments.
"She came up and demanded the tapes," Konz said. "She told us that Scalia did not want the speech to be tape-recorded."
