WASHINGTON -- First Amendment specialists questioned the legal basis yesterday for a deputy US marshal -- 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 specialists questioned not only Scalia's practice of barring recordings of remarks made in public, but 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 New York University law professor Burt Neuborne, 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 bars television cameras when he speaks in public, and he usually tries to clear the room of reporters. He 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.
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 television 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 US marshal Melanie Rube, who works in the Hattiesburg area, confronted two reporters who were listening to and taping Scalia's comments.
Specialists 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 University of Minnesota law professor Jane Kirtley, a press law specialist. "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."