Erased tapes raise legal questions

Scalia's order may violate federal law, experts say

April 09, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - First Amendment experts yesterday questioned the legal basis for a deputy U.S. marshal - who was apparently acting on the orders of Supreme Court Justice Antonin Scalia - to confiscate and erase tape recordings made by two reporters invited to hear the justice speak at a high school gymnasium.

The experts questioned not only Scalia's practice of barring recordings of remarks made in public, but also whether the seizure 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 New York University law professor 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 the 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.

Experts in First Amendment law say it is generally understood that officials - including judges - cannot confiscate or destroy notes or records that journalists obtain in public events.

"This is a major embarrassment. And it is unsupportable as a matter of law," said Jane Kirtley, a University of Minnesota law professor and 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.'"

Kirtley also said the action by Scalia and the marshal appeared to violate the Privacy Protection Act of 1980, which says: "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 also says victims of such official confiscations may sue the violators.

The Los Angeles Times is a Tribune Publishing newspaper.

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