Understanding Justice Scalia

From the Spring 2004 issue of The News Media & The Law, page 4.

It's not every day that a heavy, cream-colored, embossed letter of apology from a U.S. Supreme Court justice lands on your desk. Leave it to Justice Antonin Scalia to write a charming letter that unfortunately is hostile to the broadcast media.

In April, Scalia made headlines when a U.S. Marshal in Hattiesburg, Miss., confronted two print reporters midway through the justice's speech on the majesty of the U.S. Constitution. The marshal took their recorders and erased them.

Scalia has a long, colorful history of banning electronic coverage of his speeches. At this speech, however, officials did not make the usual announcement banning recordings.

At The Reporters Committee for Freedom of the Press, we seldom hear of a reporter harassment case that is this clear cut. Not only did the marshal interfere with the reporters' First Amendment rights to cover the news, she probably violated the Fourth Amendment's prohibition against illegal searches and seizures, and the Privacy Protection Act of 1980, which specifically bans seizures of journalists' reporting materials.

We fired off a letter to the Justice Department as well as to Scalia, pointing out all of the conceivable ways the law had been broken and the public's right to know compromised. Scalia promptly responded with a letter to me.

"I was as upset as you were" about the episode, he wrote. "I have written to the reporters involved, extending my apology and undertaking to revise my policy so as to permit recording for use of the print media."

The justice thanked me for my expression of "well justified concern over the incident," and agreed that changing his policy to allow tape recording by the print media would "promote accurate reporting." Scalia concluded, "The electronic media have in the past respected my First Amendment right not to speak on radio and television when I do not wish to do so, and I am sure that courtesy will continue."

I was not familiar with this particular First Amendment right. Nonetheless, if anyone can craft such a right from the Constitution, it's probably Justice Scalia.

Leaving aside the obnoxious failure to recognize the right of broadcasters to cover his speeches, the brouhaha over the Hattiesburg incident prompted conversation at the Reporters Committee over how journalists should behave when law enforcement officials confront them and grab their reporting materials.

In a conversation with Pete Weitzel, retired managing editor of The Miami Herald who is working out of the Reporters Committee offices these days on behalf of a coalition of journalists working for open government, we came up with some suggestions:

• Despite laws that specifically say reporting materials cannot be seized, state and federal law enforcement officials sometimes do it anyway. Any remedy for the journalist is "after the fact." In other words, you can sue once they've violated the law. For that reason, don't resist the police officer unless you're prepared to go to jail.

In most instances, photographers have gotten film back, reporters have gotten their notes and tapes back, charges were dropped and apologies have been issued by the agency that screwed up. Some news organizations have been successful in having their legal fees paid by the agency that violated the law.

• Editors should have conversations with their staff about how to respond in these situations. It makes sense to have a procedure worked out with counsel, based on federal and state law and any local precedents.

• Know whom to notify — your editor or local counsel, for example — if you are asked to surrender a tape. Have that phone number memorized or programmed into your cell phone.

• Be polite and respectful at all times. Do not physically resist, but if possible put the offending recorder in a pocket or purse before the officer can physically seize it.

• If requested to erase the tape, or give up the recorder and/or tape, ask under what legal authority the officer is acting and indicate you would like to talk to your editor or attorney before surrendering "the newspaper's" property. (As Pete points out, that immediately elevates the issue. It's no longer a matter of bullying or intimidating a single reporter, and the potential of a lawsuit is clearly implied.)

• If none of that works, politely tell the officer you will not physically give up the recorder or the tape unless put under arrest. If arrested, and the recorder or tape is physically taken, caution the officer against erasing the tape, noting that would be both destruction of property and of evidence in the case. It wouldn't hurt to mention the "Privacy Protection Act of 1980" to let them know that you know the law, even if they don't.

Finally, if this happens to you or one of your journalists, call the Reporters Committee. We're here to help.