U.S. Marshal orders reporters to erase recordings of Scalia speech
News Media Update

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A federal marshal forced two reporters to erase audiotape recordings of a speech given by U.S. Supreme Court Justice Antonin Scalia at a private Mississippi high school.
April 8, 2004 -- Two reporters were ordered yesterday to erase their audiotape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia, given at a private high school in Mississippi. During the speech, U.S. Deputy Federal Marshal Melanie Rube demanded that an Associated Press reporter and a Hattiesburg American reporter erase their tapes.

According to an AP story today, the marshal said Scalia had asked that his appearance not be recorded.

The incident took place at Presbyterian Christian High School in Hattiesburg, Miss., where Scalia delivered a speech extolling the Constitution. While Scalia told an auditorium of students that "the Constitution is extraordinary and amazing. People just don't revere it like they used to," the marshal seized the recording device and erased its contents with the help of the reporter, according to the AP.

The Reporters Committee wrote a letter of protest to Attorney General John Ashcroft, U.S. Marshals Service Director Benigno G. Reyna, and Southern Mississippi U.S. Marshal Nehemiah Flowers. The letter states that the actions taken by Rube clearly violated the Privacy Protection Act, which prohibits government officers investigating a criminal offense from being able to "search for or seize any work product materials" possessed by a member of the news media.

The Reporters Committee also noted that the Department of Justice guidelines concerning interactions with the news media provide procedures that must be followed by all members of the department, including U.S. marshals. The guidelines provide that members of the Justice Department must negotiate with a member of the news media before seeking to subpoena the member, and must obtain the attorney general's approval before issuing a subpoena to a member of the news media.

"While the Mississippi situation did not involve a search warrant or a subpoena, it should go without saying that the protections granted for those situations apply with equal or greater force in situations of even less urgency," the letter urged.

At a reception following yesterday's speech, Scalia told television reporters from Hattiesburg station WDAM-TV to leave. In March 2003, he prohibited television coverage of his appearances at The City Club of Cleveland, where he received "The Citadel of Free Speech Award" in honor of his support of the First Amendment.

-- KM

Letter to Justice Scalia over marshal's interference with reporters at speech

Letter to Attorney General, U.S. Marshals over interference with reporters at Scalia speech


Justice Scalia issues apologies over destruction of tapes

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U.S. Supreme Court Justice Antonin Scalia has apologized to reporters for the actions of a U.S. marshal who forced them to erase their audiotape recordings during a public speech he made last week.
April 13, 2004 -- U.S. Supreme Court Justice Antonin Scalia wrote letters of apology to two Mississippi reporters who were forced by a U.S. marshal to erase their audiotape recordings of Scalia's remarks at a local high school last week.

In a letter dated April 9, two days after the incident, Scalia wrote to reporter Antoinette Konz of The Hattiesburg American , and reporter Denise Grones of The Associated Press' Jackson bureau. "I imagine that is an upsetting and indeed enraging experience, and I want you to know how it happened," Scalia wrote, according to copies of the letters obtained from both news organizations.

Scalia went on to explain his reasons for refusing to allow radio and television coverage of his public appearances. "It has been the tradition of the American judiciary not to thrust themselves into the public eye, where they might come to be regarded as politicians seeking public favor," he wrote.

Scalia also explained that the U.S. marshal's seizure of the tape recorders during his speech at Presbyterian Christian School in Hattiesburg was a mistake. "The marshals were doing what they believed to be their job" to enforce Scalia's policy of prohibiting video and audio recordings of his speeches.

"To tell the truth, even if [the ground rules] had been clarified and some reporter had broken them, I would not have wanted the tape erased," he wrote. "I have learned my lesson (at your expense) and shall certainly be more careful in the future. Indeed, in the future I will make clear that recording for use of the print media is no problem at all."

In a separate response to a protest letter sent by The Reporters Committee for Freedom of the Press on April 8, Scalia wrote, "You are correct that the action was not taken at my direction; I was as upset as you were."

In response to the Reporters Committee's request that he permit recording of his speeches, Scalia wrote that he is "undertaking" to revise his personal policy to allow print reporters to do so. He suggested, ironically, that he was misquoted in the reports of his speech in Mississippi, saying that he hopes his new policy will "promote accurate reporting, so that no one will quote me as having said that '[p]eople just don't revere [the Constitution] like they used to.' "

The Reporters Committee had also asked Scalia to change his long-standing policy against appearing on television or radio. In response to that request, Scalia wrote, "The electronic media in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue."

Barbara Cochran, president of the Radio-Television News Directors Association, objected to that policy in a letter sent to Scalia yesterday, and posted on the organization's Web site.

"There is no legal basis for such discrimination," she wrote. "To exclude television cameras and audio recording is the equivalent of taking away pencil and paper from print reporters."

-- KM

News Media Update MISSISSIPPI Confidentiality/Privilege

Government concedes wrongdoing in tape seizure

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The Department of Justice conceded in court documents that it violated federal law when it seized reporters' tapes of a speech by U.S. Supreme Court Justice Antonin Scalia, and that the reporters and their employers are each entitled to $1,000 damages and attorneys' fees.

Sep. 15, 2004 -- The U.S. Marshals Service violated federal law by seizing and destroying two reporters' tape recordings of an April 7 speech by U.S. Supreme Court Justice Antonin Scalia, the Department of Justice conceded Friday. The concessions were made in court documents filed in a civil rights lawsuit against the Marshals Service by the reporters, the Associated Press reported.

The Privacy Protection Act prevents government search or seizure of journalists' "work product materials" unless the journalist has committed a crime unrelated to the possession or withholding of the materials, or if search or seizure would prevent death or serious injury.

Reporters Antoinette Konz of the Hattiesburg (Miss.) American and Denise Grones of the Associated Press were ordered by Deputy U.S. Marshal Melanie Rube to erase audio recordings of a speech on the virtues of the Constitution Scalia gave at Presbyterian Christian High School in Hattiesburg, Miss. Scalia had a policy of not allowing his speeches to be recorded, but no announcement had been made at the event.

Rube erased Grones' tape and forced Konz to erase hers.

The following day, The Reporters Committee for Freedom of the Press filed letters of protest with Attorney General John Ashcroft, Marshals Service Director Benigno Reyna, Southern Mississippi U.S. Marshal Nehemiah Flowers, and Scalia. The letters argued that the seizure and destruction violated fundamental First Amendment press freedoms, the federal Privacy Protection Act and Department of Justice guidelines.

In letters to the reporters and to the Reporters Committee, Scalia apologized, writing that the action was not taken at his direction and that marshals mistakenly believed they were enforcing his policy. He also agreed to revise the policy, allowing recording for print but not electronic media.

On May 9, the Associated Press and the Hattiesburg American filed a civil rights lawsuit against the Marshals Service in federal court in Jackson, Miss. The suit alleged that the seizure and destruction of the tapes violated First Amendment guarantees of freedom of the press, Fourth Amendment protections against unreasonable searches and seizures, Fifth Amendment due process requirements, and the Privacy Protection Act.

In the documents filed by the Department of Justice Sept. 10, they conceded that the Marshals actions violated the Privacy Protection Act and that the reporters and their employers were each entitled to $1,000 damages and reasonable attorneys' fees. The news organizations had not decided whether they would accept the proposed settlement by late today.

(The Hattiesburg American v. U.S. Marshals Service; Media Counsel: Luther Munford, Phelps Dunbar, Jackson, Miss.) -- GP

News organizations file lawsuit over Scalia speech flap
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The Associated Press and a Mississippi newspaper allege that the U.S. Marshals Service violated two reporters' constitutional rights when a marshal seized and erased their tape recorders during a speech by U.S. Supreme Court Justice Antonin Scalia.

May 10, 2004 -- The Associated Press and The Hattiesburg American filed a civil rights lawsuit yesterday in Jackson, Miss., in response to an incident last month involving the seizure and erasure of two journalists' tape recorders by a U.S. marshal.

The federal lawsuit, filed against the U.S. Marshals Service, claims Deputy Marshal Melanie Rube violated the First, Fourth and Fifth Amendments to the Constitution, as well as the Privacy Protection Act of 1980, which protects the press against searches and seizures of work product materials. The First Amendment protects the freedom of the press, the Fourth Amendment protects against unreasonable searches and seizures, and the Fifth Amendment requires due process of law.

The incident that led to the claims occurred on April 7 during a speech by U.S. Supreme Court Justice Antonin Scalia at Presbyterian Christian High School in Hattiesburg, Miss. Reporters Antoinette Konz of the American and Denise Grones of the AP had their audio recorders seized by Rube in the middle of Scalia's speech. Rube erased Grones's recording and forced Konz to erase her tape.

Scalia, who has long forbidden the recording of his speeches -- although no announcement of his policy was made at the Hattiesburg event -- was speaking about the virtues of the Constitution at the time of the incident.

The lawsuit seeks a declaration that Rube's actions violated the Constitution and the Privacy Protection Act, and asks the court to bar the Marshals Service from a repeat of the incident. According to an article in today's American , Luther Munford, an attorney representing the newspaper and the AP, said the media companies are seeking "a judgment that tells the U.S. Marshals Service and, in effect, other law enforcement agencies, not to do this again." The lawsuit also seeks $1,000 in damages for Konz and Grones.

The American is owned by Gannett Co.

Rube's actions sparked a nationwide furor and prompted Scalia to apologize to the reporters. He also promised to change his personal policy against the taping of his speeches. Print reporters will now be allowed to record Scalia's remarks, although broadcast journalists will be asked to respect his right "not to speak on radio or television when I do not wish to do so," he said.

(The Hattiesburg American v. U.S. Marshals Service; Media Counsel: Luther Munford, Phelps Dunbar, Jackson, Miss.) -- KM