Free press

Free press
: Justice Antonin Scalia has been brought to his knees by Lucy Dalglish of the Reporters Committee for Freedom of the Press. You’ll remember that thugs U.S. Marshalls forced two reporters to erase their tapes of a Scalia speech. Dalglish sent him a letter and sent out a press release that took no prisoners — and Scalia relented and said he didn’t want the tapes erased and even apologized to the reporters.

Dalglish’s original press release:

“Even assuming it was reasonable for Justice Scalia to prohibit recordings of his speech — which it was not — the law does not allow law enforcement officials to seize work product from journalists under these circumstances,” said Reporters Committee Executive Director Lucy Dalglish. “Perhaps one of these days, Justice Scalia will tell us why he has so little regard for electronic media. Certainly the only effect the tape recordings by two print reporters would have had on coverage of his speech would have been to make the reporting more accurate.”

Justice Scalia has a track record of banning electronic coverage of speeches where he addresses the majesty of the U.S. Constitution. In March 2003, he prohibited televised coverage of his appearance at The City Club of Cleveland, where he received “The Citadel of Free-Speech Award” honoring his support of the First Amendment. During Wednesday’s speech, Justice Scalia told students that the constitution’s true meaning must always be protected. Calling the constitution “a brilliant piece of work,” he told a full auditorium that “People just don’t revere it like they used to.”

Take that!

Scalia responded to Dalglish. The next press release:

In a letter addressed to Reporters Committee Executive Director Lucy Dalglish, Justice Scalia said he did not direct or approve of the marshal’s actions April 7 at Presbyterian Christian School: “You were correct that the action was not taken at my direction; I was as upset as you were. I have written to the reporters involved, extending my apology.”

In response to the Reporters Committee’s request that he change his policy of forbidding recordings at his public speaking events, Justice Scalia noted that he is “undertaking to revise [his] policy so as to permit recording for use of the print media.”

Scalia is still being a bozo about tapes appearing on broadcast.

Well, Judgey, just get used to a new world in which anyone and everyone is a reporter who can record you on any manner of device and broadcast that to the world on the Internet — and why the hell should you fear or try to stop that?

I’m glad that Dalglish is on the case. I met her at some industry thing and she’s impressive and dogged and when she fights for the rights of reporters she’s fighting for the rights of all citizens. So go get ‘im, Lucy!

  • bob

    You were complaining about the Ayatollah being stuffy a few posts ago .. now when a justice wants to give himself some breathing room, you flip.
    The apology was important, but I can understand the restriction.

  • Charlie (Colorado)

    Jeff, I’d be a little careful here: remember a while ago when you accused some senators — Brownbeck among them — of getting “subsidized” housing on Capitol Hill, and a few minutes research showed that the room rent was right in line with the market?
    Well, you’re letting your high dudgeon mislead you again: Scalia apologized on 9 April, some days before the story made the paper, and only the second day after the speech itself — and in immediate response to Dalgleish’s letter.
    You’ve got no support for the supposition that this was Scalia reversing a policy — and Scalia’s explicit statement that it wasn’t his policy and that it was wrong for the marshall to have done.
    Honest, Jeff, we believe you’re a liberal — you don’t have to resort to a joshmarshallesque guilt-by-innuendo to make us believe it.

  • Charlie: I was in the middle of writing an update on the main post regarding your comments. But I’m not sure we’re really that far off. I say that Scalia apologized (the full press release makes it clear it was on April 9). I still criticize him for not allowing tapes of him speaking to a public audience to be broadcast (he’s a frigging public servant and we be the public!). And I still think Lucy did a good job dogging him.

  • I just flashed on Lucy from the Lucy Show. That can’t be right. Waaaahhhhh!

  • James Sloan

    Are you by any chance writing with tongue in cheek in the last part?

  • MDP

    This is a Marshall.
    This is a Marshal.

  • Charlie (Colorado)

    I dunno, Jeff — you’re still saying Scalia “relented”, when Scalia says, and the Marshal service confirms, that Scalia never ordered the erasure in the first place.
    “Never ascribe to malice that which can be adequately explained by stupidity.”

  • Charlie: You’re right. “Relented” is the wrong verb, it would seem. I will say that there’s still something fishy here — why would a marshal go and just do this on his own unless it had been or he believed it to be for some good reason the justice’s order or desire? But barring hearing from the marshal, we don’t have that. So, you’re right, wrong very.

  • KMK

    The pdf version is very revealing, a lil cheekiness from our supreme justice.
    (That policy will, as you say, 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.”)
    He goes on the say, the marshals, do not operate at his direction, but he shall express it now as his preference that they not confiscate recordings – even ones made in violation of clearly announced rules.
    Which only begs more questions – What was his prior preference? Do the fundamental tenets of press freedom not apply to him?
    I think his response was cheeky. Sad day for our country when a supreme justice needs to be reminded of the difference between curtesy and law.

  • superfly

    Press freedom applies if you are in public but not on private property. Former president George Bush has the same standard. He spoke at my school when I was in college (a private university on private property) and either he or the school had a policy of no unofficial recording. One guy from the local community who always showed up at these sorts of speeches had brought a video camera and sat in the front row. After a public announcement that no outside recording was allowed the guy did not put away his camera and he started shouting “Freedom of the Press”. Then security escorted him out of the building and off campus.
    The press release says this all took place on private property and people in America still have the right to decide who records on their private property. This isn’t the government telling people what they can or can not record. Press freedom is not an issue here.

  • John B.

    Superfly, you forget something: Mr. Jarvis wants you to be able to say anything you want, anywhere you want, to anyone you want, while recording it whether the people involved want it recorded or not. Every attempt to curtail an expression of free speech is automatically a part of some evil plot by the FCC, John Ashcroft, or maybe even George Bush. Freedom of speech is total, and all-triumphant at Buzzmachine. All Hail Kind Howard the First!
    However no one can have a gun. Any gun. Not even a replica of a gun. Making the “Bang” sound while pointing a finger is even a no-no. As a matter of fact, no talk about guns. Ever.

  • MDP

    Charlie: “… you’re still saying Scalia ‘relented’, when Scalia says, and the Marshal service confirms, that Scalia never ordered the erasure in the first place.”
    Jeff Jarvis: “You’re right. ‘Relented’ is the wrong verb, it would seem. I will say that there’s still something fishy here — why would a marshal go and just do this on his own unless it had been or he believed it to be for some good reason the justice’s order or desire?”

    Scalia ordinarily has an agreement with his hosts that prohibits audio/video recording of his speeches, and the hosts ordinarily warn the public about the rule in advance. Under those circumstances, a security guard or Marshal who seizes (or demands erasure of) recording equipment conceivably has some grounds for doing so.
    The recent event was different because the school didn’t publicize any such rule, so reporters did nothing wrong by recording Scalia’s speech. Even so, a U.S. Marshal operating on autopilot might have assumed that reporters had been explicitly warned not to record the speech, which could explain her order to erase the tapes.

  • superfly

    To John B: The funny thing is that none of Scalia’s critics seem to care a whit about his first ammendment and free speech rights. He is under no obligation to speak at events like this and as such if he does choose to speak he has the right to set the terms. For whatever reason he chooses to not have recording devices present. That is his right. The Volokh conspiracy has a good post on this.

  • KMK

    I disagree.
    The marshals violated a 1980 federal law, the Privacy Protection Act that protects reporters’ notes, tapes and photos from seizure by federal officials. There are exceptions, a few and they require an OK from the attorney general. Since when does the definition of “security” mean protecting a justice from accurate news coverage of public remarks? There was no official request that it not be recorded. The Mississippi appearance wasn’t a small, private event but a big public affair in front of 300 people. Two local reporters had been invited by the school to cover Scalia’s speech and the press has a right to cover public officials appearing in public venues.
    I think his aversion comes from his own words coming back to bite him in the rear.
    “Speaking to a Catholic group in Fredericksburg, Va., in 2003, he criticized a lower court ruling that public schools shouldn’t require teachers to lead classes in pledging allegiance to “one nation under God.” When that case hit the Supreme Court last year the plaintiff asked him to recuse himself, and he complied. And there was that quacking incident.” See if you can follow his logic. “(W)hile friendship is a ground for recusal of a Justice where the personal fortune or personal freedom of the friend is at issue,” Scalia wrote, “it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or reputation of the Government officer.”

  • Andy Freeman

    > Mr. Jarvis wants you to be able to say anything you want, anywhere you want, to anyone you want, while recording it whether the people involved want it recorded or not.
    That’s not Jarvis position.
    Jarvis only objects to media censorship. He doesn’t object to govt censorship applied to political speech by “not media”.

  • superfly

    KMK I can understand the problem with having government agents doing the erasing and the complaints that it was not announced poublically. But would Jeff and others have been OK with it had they announced the policy beforehand and had it been done by private security people instead? If those conditions would have been met how is this any different from Major League Baseball prohibiting the recording and rebroadcasting of games without their express written consent?

  • ech

    Doesn’t Scalia (or anyone else) have the right to prohibit recording of a speech they make under the copyright laws? Fair use only allows limited excerpts to be used by news organizations, IIRC, and is silent on whether they are entitled to use recorders.

  • KMK

    Superfly – Would it have been OK with you if they had announced it publicly beforehand and private security confiscated and erased the reporters tapes? I think the reporters would have put up one hell of a fight against private security as opposed to US Marshals. The fact remains it was not announced beforehand. The reporters were invited and were in the front rows too. Must have been one heck of a sight.
    Same day second public reception he ordered a television crew to leave before the speech, and newspaper photographers were initially told not to take pictures. However, when people in the audience started snapping pictures the photographers were permitted to snap a few shots. He has the right as a supreme justice to throw out camera crews and reporters and I’m not disputing that but if he’s going to let the reporters stay let them record it. I mean think about, reporters have to stand there with pen and paper and take notes.
    He has apparently changed his mind on this and today announced he was changing his policy to allow recordings of his public speeches by members of the print media. The two Hattiesburg journalists deserve a public thank you.
    As far as MLB goes they are a business organization protected by copyright laws.
    Justice Scalia is a public servant, who was at a public function, speaking to the public. He allowed the reporters to stay. Copy rights would not apply in this instance.

  • superfly

    KMK: Yes I would be ok with it if it were done by private security and the policy had been announced earlier. This was not a public function! It was held at a private presbyterian high school according to the press release criticizing Scalia. It is irrelevant how public of a figure Scalia is. The organizers of private events have a right to determine what rules of behavior to expect from their guests including the use of recording devices. This includes members of the press, whether lone bloggers pr major reporters. If the audience or press does not like the rules they can leave and invite Scalia to their own event where they get to set the rules. See the George Bush example from above that I cited. I think that example was handled perfectly with warnings given and then private security escorting the “press” out the building when those warnings were ignored.

  • KMK

    Superfly –
    How Appealing has a nice round up of the articles generated about the incident. By all accounts it was a public appearance. And as I’ve said the school officials invited the press.
    Scalia went out of his way to say he would allow recordings of – public – speeches.
    Again a supreme court justice alone has the law on their side to either speak to reporters or not. If he allows reporters to stay, what does he or you think they are doing there? What is the difference between recording it and taking notes (aside from the obvious). Accuracy. As Scalia pointed out, tongue in cheek, in his apology.
    A private speech is different no argument there. A case of private security taking tapes at a public event and erasing them would wind up in court. I don’t think in that example Scalia would lay down ground rules telling private security to take those actions. He says in the link I provided above

  • Andy Freeman

    > when she fights for the rights of reporters she’s fighting for the rights of all citizens.
    Not really. The media has special rights when it comes to political speech. It has pushed for those rights by insisting on restricting the political speech rights of other citizens.

  • KMK

    Volokh has an update on the copyright angle.