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Government concedes wrongdoing in tape seizure

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  1. Protecting Sources and Materials

    News Media Update         MISSISSIPPI         Confidentiality/Privilege    

Government concedes wrongdoing in tape seizure

  • 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

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© 2004 The Reporters Committee for Freedom of the Press

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