Scalia flouts the law again

[Gentle Giant]

This guy is outta control!

US marshal defends Scalia speech erasure
Justice spurs debate over press freedom
By Holbrook Mohr, Associated Press, 4/10/2004

JACKSON, Miss. -- The US marshal yesterday 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.

Flowers said the fact no announcement was made at the high school regarding Scalia's wishes, "could have possibly been a faux pas on our behalf."

"It would have been handled, on hindsight, a little bit different," he said.

Later yesterday, Dave Turner, a spokesman for the marshals service in Washington, said: "At this stage, ascertaining the facts of exactly what happened is important to anything the marshals service might do in the future."

In a letter to Flowers, US Marshals Service director Benigno G. Reyna, and Attorney General John D. Ashcroft, the reporters group said the deputy violated the Privacy Protection Act. The act says government officers may not seize journalists' materials.

"It is clear that the statute's purpose is to provide maximum protection for the news media against seizures of work product," the group said in a letter signed by the committee executive director, Lucy Dalglish, and two other staff members.

Justice Department employees should receive approval from the attorney general before ordering a journalist to turn over work materials, the letter said. Because the marshal did not do so, her actions should lead to a reprimand or other disciplinary action, according to the letter.

The Associated Press and three other organizations also sent a letter protesting the marshal's conduct. The letter demanded an immediate explanation, potential sanctions, and details of what steps that would be taken to ensure "that no such improper actions are carried out by US marshals in the future."

A spokeswoman for the Supreme Court said it is up to Scalia and his staff to set guidelines for coverage of his events. A spokesman for the Justice Department did not immediately respond to calls seeking comment Thursday.

At a reception following Scalia's speech at William Carey College, the justice told WDAM-TV reporters to leave. A member of his entourage also told newspaper photographers they could not take pictures, but a college official reversed the order after nonmedia guests started snapping photos.

Jeanna Graves, spokeswoman for William Carey, later apologized to the media, saying she was "embarrassed and angry" over the incident.

© Copyright 2004 Globe Newspaper Company.

[frankiepop]

i didnt peruse the article, but i dont see where scalia 'flouted' the law here. also when did scalia flout the law previously.

[Chris A]

i didnt peruse the article, but i dont see where scalia 'flouted' the law here. also when did scalia flout the law previously.

I think your blurred vision may be a symptom of Bushoma. We have noted evidence of this in previous posts.

[frankiepop]

that's very cute, chris a. now, i call. so, show your cards. just where does it suggest that scalia flouted the law..pull a line up there and quote it....and TH-EEEEENNNN tell me when scalia flouted the law previously......and i dont think i suffer from bushomia or scaliaomia either i hate bush. he's a pig....

it doesnt - does it?

[Gentle Giant]

Basically, he ordered his peeps to confiscate journalistic materials, which is against the law. Prior to this, he went on hunting trips with Dick Cheney, who has interests before the Supreme Court. Technically, he can - and so far has - weaseled his way out of clearly punishable offenses, but my point is that here is a Supreme Court justice with no fucking sense of propriety at all. He's basically a fascist who believes no rules, laws, or codes of ethics apply to him.

I'd like to sic Paul Anka on his ass!

[Ron Thorne]

I'd like to sic Paul Anka on his ass!

... singin' "You're Havin' My Baby".

[frankiepop]

what a lovely way of saying how much u love me..
now how does anka figure into all this...
and
facist?? i call and u up the ante...okay, now,
the article says that scalia asked
that no one be allowed to record his speech.
the article does not suggest that scalia
ordered anything. a deputy attempted to enforce scalia's request,
the article states, "'the deputy' violated the law."

(peeps?? what in the hell are his 'peeeps'?? his peeps)

oh yeah...the duck incident, which by weird washington sense or politics, may not clearly pose a conflict problem. go figure...weird..i will note scalia did recuse himself from a 1st amendment case this yr for prior remarks. so he may have 'some' sense of propriety.............a little sense of .... a smidgeon...maybe a scintilla...an atom...electron??..quark's worth of propriety... how bout that????????????? a quarks worth of propriety...

[Ron Thorne]

Damned profound.

[Tanager]

I hate to say it, but I don't see anything in the article about Scalia ordering anyone to do anything - it reads very much as if the Marshal acted on her own. As much as I dislike Scalia (and I do dislike him very much), he's not stupid by any stretch, and I doubt he'd have done anymore than ask to have the people stop immediately, etc. There's really nothing in here which impugns Scalia except by association.

[Brian Olewnick]

You obviously don't understand the current political climate, T-Bird. If you disagree with someone (and, like you, I have plenty of issues with Scalia), then anything they do is unlawful (and usually evil) whether it actually is or not under the law. Get with the program!

[Gary Sisco]

Erasing a recording has nothing to do with providing security for Scalia and therefore the marshall was not in anyway performing a marshall's job by seizing the recording. I wish one of these punks would try their stunts with an American who is willing to defend his or her rights, if there are any left. Most have become so obsequious before authority and bred into hierarchy that the concept is receding into history.

He's a judge, not the Fuhrer. Whether he liked having his remarks recorded or not is irrelevant. The 1st Amendment still exists even if the fed marshalls and Scalia don't like it (and they don't).

[frankiepop]

tho what did scalia do wrong here?
scalia can have a marshall
at a speech and it's customary
and legal to restrict an audience
from recording a speech...the issue is
what did scalia do
that is 'fuhrer' like..., unless
he directed ordered
the marshall to confiscate
the already made recording ....
tho the article doesnt make that claim...

granted, scalia made have made a mistake by
not having the restriction clarified b4
the speech...still i dont see what you see
that scalia did which was illegal....or illegalesquey..
or violated the reporters rights.....

[Gary Sisco]

There's nothing "customary" about a Supreme's speech being "restricted." Whatever he says in public is public business and therefore protected by the 1st Amendment *because* he's a Supreme. In fact, because he's a public figure, period. If he doesn't want his words recorded, he ought to watch his mouth when in public, like anyone else in the world.

On the other hand, it seems from the article that the decision was made by the marshall, who was completely out of line, if so, but then, they often are. I've had more than one dealing with fed marshalls and they're pretty much all off the hook, in my experience, and they can go from stoically stonefaced behind their shades to violent force quicker than most of us can flip a light switch.

One even banned me from a public trial (they used to be quite common in the US, public trials) and when I objected on legal grounds (which were absolutely on my side), before I could even finish the first sentence he told me that if I didn't leave the building right then, "I will hurt you." Hey, thanks, pal. Mr Public Servant. I ended up leafletting outside the courthouse all day long. The defense team's lawyers eventually got an appeals court ruling that trials are public in the US and therefore the marshalls could not restrict citizens' access to the court rooms, regardless of their politics. Which of course is only constitution 101 and used to be a long recognized right of American citizens, back when they were aware of and cared about their rights. I know I'm being archaic, here, but, hey. I'm more conservative than they are, as I still insist that the Constitution is in force and that the people rule in this country. One of these days, that question will have to literally be fought over, again. I hope that day comes while I'm still able enough to participate, but I doubt it, given the bowing and scraping behavior of this and the coming generation when it encounters authority.

Another, who was in control of the third metal detector I'd passed through to get into the courthouse, told me that notebooks and pens weren't allowed in the courtroom and tried to seize mine. I objected that he didn't have the legal power to take them or to forbid them, either. He replied that only journalists were allowed to have them (wrong, legally and every other way). I shot back that I was a journalist and that I was there as a journalist to cover the trial. He fired back that only the "official press" was allowed to take notes. I asked him since when did the US have an "official press" and asked, What is this? The Soviet Union? That completely riled him up but by then he was embarassed and pissed off, as the long line being held up behind me was cracking up. He was forced to relent after making himself a laughing stock, but before then, he was armed (and absurdly heavily at that) and I was not, so if reason hadn't prevailed, he would have, having the monopoly on force at that moment. Guys like him sometimes encounter a day when they don't have that monopoly to protect them anymore.

Kingdom rise and kingdom fall, baby. Thus it's always been; thus it always will be.

[jesus marion joseph]

There's nothing "customary" about a Supreme's speech being "restricted." Whatever he says in public is public business and therefore protected by the 1st Amendment *because* he's a Supreme. In fact, because he's a public figure, period. If he doesn't want his words recorded, he ought to watch his mouth when in public, like anyone else in the world.

My reading of the article leads me to believe that Scalia asked that no *mechanical* recording of his speech be made, not that his words shouldn't be transcribed at all. The former would certainly be within his rights, while the latter probably wouldn't. I'm only guessing, though, since the article wasn't really clear on that point.

[Paul B]

I agree with Gary; I don't know why the reporters--especially the AP person; the other, according to Bob Herbert in today's Times, was just a high school student--didn't make a fuss. Creating a little ruckus would have put Scalia on the spot, forcing him to take a stand. But the reporters wimped out. Pretty lame.

Bye-ya

[lynn]

This was somewhat enlightening. I will add that this guy is a bad example of what I believe we need to stand as a Supreme Court Justice.

A Justice's Sense of Privilege
By BOB HERBERT
April 12, 2004
NY Times

Antoinette Konz is a young education reporter for The Hattiesburg American, a daily newspaper with a circulation of about 25,000 in Hattiesburg, Miss. Ms. Konz, 25, has only been in the business for a couple of years, so her outlook hasn't been soiled by the cranks and the criminals, and the pretzel-shaped politicians that so many of us have been covering for too many years to count.

She considered it a big deal when one of the schools on her beat, the Presbyterian Christian High School, invited her to cover a speech that was delivered last Wednesday by Supreme Court Justice Antonin Scalia.

About 300 people, many of them students, filled the school's gymnasium for the speech. They greeted Justice Scalia with a standing ovation.

Ms. Konz and a reporter for The Associated Press, Denise Grones, were seated in the front row. They began to take notes. And when Justice Scalia began speaking, they clicked on their tape recorders.

What's important about this story is that Justice Scalia is a big shot. Not only is he a member in good standing of the nation's most august court, he's almost always among those mentioned as a possible future chief justice.

Compared with him, Ms. Konz and Ms. Grones are nobodies.

Justice Scalia, the big shot, does not like reporters to turn tape recorders on when he's talking, whether that action is protected by the Constitution of the United States or not. He doesn't like it. And he doesn't permit it.

"Thirty-five minutes into the speech we were approached by a woman who identified herself as a deputy U.S. marshal," Ms. Konz told me in a telephone conversation on Friday. "She said that we should not be recording and that she needed to have our tapes."

In the U.S., this is a no-no. Justice Scalia and his colleagues on the court are responsible for guaranteeing such safeguards against tyranny as freedom of the press. In fact, the speech Mr. Scalia was giving at the very moment the marshal moved against the two reporters was about the importance of the Constitution.

Ms. Konz said neither she nor Ms. Grones wanted to comply with the marshal's demand.

"It was very distracting, very embarrassing," she said. "We were still trying to listen to what he was saying."

The marshal, Melanie Rube, insisted.

The A.P. reporter tried to explain that she had a digital recording device, so there was no tape to give up. Ms. Konz said the deputy seemed baffled by that.

Eventually both recordings were seized.

If this had been an old-time Hollywood movie, the Supreme Court justice would have turned a kindly face toward the marshal and said, in an avuncular tone: "No, no. We don't do that sort of thing in this country. Please return the recordings."

But this is the United States in the 21st century where the power brokers have gone mad. They've deluded themselves into thinking they're royalty, not public servants charged with protecting the rights and interests of the people. Both recordings were erased. Only then was the reporters' property returned.

When agents acting on behalf of a Supreme Court justice can just snatch and destroy information collected by reporters, we haven't just thumbed our nose at the Constitution, we've taken a very dangerous step in a very ugly direction. The depot at the end of that dark road is totalitarianism.

I called Jane Kirtley, a professor of media, ethics and law at the University of Minnesota, and asked her what was wrong with what the marshal did. She replied, "Everything."

Not only was it an affront to the Constitution to seize and erase the recordings, Ms. Kirtley believes it was also a violation of the Privacy Protection Act, a law passed by Congress in 1980.

"It protects journalists not just from newsroom searches," she said, "but from the seizure of their work product material, things like notes and drafts, and also what's called documentary materials, which are things like these tapes, or digital recordings."

Ms. Konz told me: "All I was doing with that tape recorder was making sure that I was not going to misquote the justice. My only intention was to report his words accurately."

After the encounter with the marshal, she said, "I went back to the office and I just felt absolutely — I just felt horrible."

[Tanager]

Listen, I know this will get me branded as a shill for Scalia, when nothing could be further from the truth, but branding a US Marshal as an agent "acting on behalf of a Supreme Court justice," when every report indicates that the agent in question was acting on her own initiative, is about as simple-mindedly partisan as one can get in twisting the facts. You don't believe I'm a fierce Scalia critic? Fine. Think what you want. But let's be clear: the US Marshals don't report to Scalia. He's not their boss. He can make a request, like "I don't want any taping." And he's probably within his rights to request that, maybe not, but that hasn't been contested in the press, so let's assume for the sake of argument he is. But he can't order a US Marshal on security detail to do this or that specific task beyond the performance of his or her general duties. If one really wanted to take this thing to its logical extreme, then let's make this about Bush, hell, why not, b/c the US Marshals report up through Justice, which is under the Executive branch... I'm sorry, but there hasn't been a single report that in any way implicates him as being behind the seizure of the recordings - every indication is that this US Marshal made up her mind to take the recordings, and one of the reporters, being a student journalist, was probably too intimidated to resist. The AP reporter should be smacked by her boss for not standing up to the marshal, to be sure.. But the worst thing is, this sort of over-the-top and, to my mind, largely baseless criticism serves only as noise, static which obscures the many other and entirely legitimate criticisms one might (and should) make of Scalia.

I'm sorry, Lynn, but that Herbert piece adds nothing to the dialog, IMHO.

[Captain Hate]

I'm sorry, Lynn, but that Herbert piece adds nothing to the dialog, IMHO.

Oh c'mon; that reporter "just felt horrible".

[Gary Sisco]

35 minutes into a speech is rather late for making the "off the record" announcement, never mind telling people no recording is allowed. By the way, judge or not, he still has not the right to that demand, being a public figure and a Supreme (no less) and it being a public speech. And the marshalls had no right at all.

It's not even a subject of discussion with me. All else is apologia for what is an emerging police state, with an extremely privileged and beyond the people's control class that runs thing now, however they like. Whether this is admitted or acknowledged or supported or opposed, changes nothing. It is anyway, on the objective level that has nothing to do with anyone's "opinion," including my own. An imperial power, by definition, has to become a police state, never mind one that is seeking global dominion.

But people do choose sides. And not choosing is also a choice. It's a choice for the state, rather than against it.

If you're not in opposition, you're in support, at least objectively.

Scalia has stepped completely outside the Constitution, at least since the fateful November when the Gang-In-Charge took over, with his greasing the skids in one of the worst decisions, ever, by any Supreme Court, at least since Plessy.

[Gary Sisco]

If the action taken was correct, why the apology? And note the twisted logic. Print reporters can tape but not "broadcast media"? Duh? He seems to have no understanding of basic logic (try reading his tortuous decision awarding Bush the presidency -- have you actually read it?) *or* the 1st Amendment (unless it's *his* 1st Amendment). What 1st Amendment right is there for public figures, never mind high state officials, to decline appearing on television or radio? In what clause can that be found? There is absolutely no precedent for such a "right." And this never minding that under the Constitution, the state has only *powers* (granted to it by the people). The people only have rights in the Constitution. The federal government has none. That's *why* the people's rights are *amendments.* Duh. All public figures are quotable, recordable, whatever you like, when in their public lives, which certainly a speech by a Supreme at a college is. Like I said earlier, if you're worried about your words being heard by many people, watch your mouth. Indeed, trying thinking ahead of time why you would be worried about it in the first place.

Is there anyone in any walk of life, who lives any kind of public life, who *hasn't* been misquoted or misrepresented by the media? I was so many times that I finally just stopped talking to reporters altogether. Once, after returning from El Salvador, I held what I thought would be a reporter-proof and idiot-proof news conference, in which I read a prepared commentary on what I'd seen there, gave a copy to every reporter and citizen who came, and refused to answer questions or say anything else that wasn't written down on the statement.

They still misquoted it, even when it was right in front of them.
And they still wildly distorted it, even when the words were right in front of them. So what? No one can control what another cat's going to write, or what the editor(s) will do to it afterwards. That's part of the price of a public life. You don't like it, don't lead a public life. Duh.

You have to pay the cost to be the boss. (BB King)

[Gentle Giant]

Look, Tanager (and fp), don't you think it's at all fucked up for a public official to not allow his public remarks to be recorded by journalists? Forget the marshall, the point is that here is a Supreme Court justice, already a controversial figure (which adds to his newsworthiness) restricting the First Amendment rights of his audience. Maybe he didn't specifically instruct the marshall to seize or erase those tapes, but he did set an inappropriate restriction (late no less; remember, at the high school event there was no notice or announcement given prior to the speech that recording was prohibited), and for what purpose? That he wouldn't get into more trouble if he happened to put his foot in his mouth? That's simply not a right of a public official. The First Amendment guarantees not only freedom of the press but ensures the free exchange of ideas. The same rights that allow him to say whatever he wants in a public forum, also allow journalists to record, report, and comment on his remarks. And to say, as the US marshall (who may not have a dotted line to the Supreme Court, but certainly has interests that are closely aligned with it) did, that these actions were taken as part of a security detail for Scalia, is absolutely absurd.

[Brian Olewnick]

I believe Scalia "requested" that his remarks not be recorded. He didn't "demand", he didn't "not allow". You can think what you like about his motives, but at least get the facts straight.

[Gentle Giant]

I believe Scalia "requested" that his remarks not be recorded. He didn't "demand", he didn't "not allow". You can think what you like about his motives, but at least get the facts straight.

Splitting semantic hairs is a pretty weak defense. Since we ourselves weren't present, we don't know if he said "pretty please" or "if they're taping, I ain't talking." The fact is, he made an inappropriate request and its enforcement may have violated the law. I'm not suggesting that Scalia be publicly flogged, I'm just saying this incident advances the case against him as being someone who holds himself above the law and beyond propriety.

[Noj]

Not wanting to be recorded is the cowardly desire of a man who knows what he's saying isn't right.

[Brian Olewnick]

Splitting semantic hairs is a pretty weak defense. Since we ourselves weren't present, we don't know if he said "pretty please" or "if they're taping, I ain't talking." The fact is, he made an inappropriate request and its enforcement may have violated the law. I'm not suggesting that Scalia be publicly flogged, I'm just saying this incident advances the case against him as being someone who holds himself above the law and beyond propriety.

It's not a defense. I could care less about Scalia. But if news reports say he "requested" something, then it's only responsible to use that term or its synonyms instead of "demanded" or "didn't allow".

Like I should expect responsibility here.

[lynn]

It is the responsibility of the media to report on these events, especially the public remarks of a Supreme Court Justice. They were right to disregard any request that is in direct conflict with first amendment rights and freedom of speech. Scalia is meerly showing his true colors.

[frankiepop]

gg, to get on point, u typed that scalia flouted the law. i cant see where scalia flouted the law ...

[jesus marion joseph]

It is the responsibility of the media to report on these events, especially the public remarks of a Supreme Court Justice. They were right to disregard any request that is in direct conflict with first amendment rights and freedom of speech. Scalia is meerly showing his true colors.

I agree that it's the media's obligation to report. I disagree that their right to report is unfettered, even if the speaker is a public figure. In other words, I disagree that the reporters have the absolute right to mechanically record a speech, especially when they are asked specifically not to.

Whether the US marshal acted appropriately is another matter, though, since they are acting under the auspices of the government.

This thread reminds me of my administrative law final exam in law school. The professor took four or five stories from the previous Sunday's Boston Globe and we had to analyze them using a particular legal construct.

Steve(thelil)'s dad is a genuine constitutional lawyer. Maybe he (thelil) can jump in here with some clarification of where the constitutional boundaries are.

[Gentle Giant]

gg, to get on point, u typed that scalia flouted the law. i cant see where scalia flouted the law ...

Granted, "flouted" is a subjective term but I defend my usage. I purposely did not say that he BROKE the law, only that he waved his panties at it, as in "To show contempt for: SCORN <flout convention>; To be scornful: JEER; A contemptuous action or remark: INSULT" (Webster's II).

As for Scalia, this may not qualify as nolo contendre, but clearly he's aware that he ain't smelling like a rose these days:

Scalia: 'I have learned my lesson'
By Ron Harrist, Associated Press, 4/14/2004

JACKSON, Miss. -- Antonin Scalia, in a letter to an Associated Press reporter received yesterday, said he learned his lesson over an incident in which a federal marshal forced journalists to erase their recordings of a speech the Supreme Court justice gave to high school students.

Scalia also vowed he would make it clear in the future that recording his remarks for use by the print media would be permitted.

"I have learned my lesson (at your expense), and shall certainly be more careful in the future," Scalia wrote in the letter, which was dated Friday.

The AP reporter, Denise Grones, said yesterday that she was "happy Justice Scalia understands the value of a reporter doing his or her job. Print reporters usually depend heavily on their recorders to ensure accurate quotes, and that's what I was doing that day."

During the April 7 speech in Hattiesburg, a deputy federal marshal demanded that Grones and Antoinette Konz, a reporter for The Hattiesburg American, erase recordings of the justice's remarks.

When Grones resisted, the marshal, Melanie Rube, took the digital recorder out of her hands. Grones then showed Rube how to erase the recording.

Rube then demanded that Konz hand over her tape. Konz surrendered the tape and, after the speech, was able to get it back only after she erased the recording in front of the marshal.

The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

"As I understand it from press reports, a United States Marshal erased, or caused you to erase, the tape recorder that you were using for the purpose of assuring the accuracy of your press report," Scalia wrote in the apology to both reporters. "I imagine that is an upsetting and indeed enraging experience and I want you to know how it happened."

Scalia explained that in a speech earlier that day, he had asked that his appearance not be recorded. Scalia normally bars television cameras from his appearances, but his policy on the use of small audio recorders has not been clear-cut.

[jesus marion joseph]

There ya' go.