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Scalia extols free speech -- and betrays it
by Leonard Pitt
Miami Herald
April 16, 2004

I'm sorry, but I still want my pound of flesh.

Granted, apologies have been given and promises made. Still, the transgression was so profound, so antithetical to the letter and spirit of the Constitution, that it's hard to let it go at that.

For those who missed it: Last week, Supreme Court Justice Antonin Scalia went to Hattiesburg, Miss., to speak at Presbyterian Christian High. Scalia typically does not allow video or audio recordings to be made of his speeches, but no such prohibition was announced at this particular appearance, which was open to the public. Two reporters covering the event recorded the speech in order to quote it accurately in their stories. Web Vote Do you agree with Leonard Pitts Jr. that the recent Scalia incident indicates an erosion of civil liberties? Yes -- Government officials seizing reporters' tapes does not bode well. No -- This was an isolated incident and Scalia has even apologized.

Afterward, both were confronted by a deputy of the United States Marshals Service, which provides security for Supreme Court justices.

The deputy seized a digital recorder from Denise Grones of The Associated Press and erased its contents. She also confiscated a cassette tape from Antoinette Konz of the Hattiesburg American and later returned it, erased.

Now me, I have a tendency to go overboard when things like this happen. I start raving about jackboots and making unflattering comparisons to North Korea and other bastions of freedom.

So instead of subjecting you to me ranting, "Oh, my God. That boggles the mind," I decided to seek a sober, reasoned response from an expert. I turned to Robert Beatty, an authority on the First Amendment who is vice president and general counsel for this very newspaper.


"Oh, my God," he said. "That boggles the mind."

Donald Jones, a professor of constitutional law at the University of Miami, agreed. He called it "outrageous."

"If the First Amendment means anything," said Jones, "[It means] the public has a right to know. The right to information is a key right, along with the right to express one's ideas. Our ability to function as citizens, our ability to vote intelligently, everything depends on the free flow of information."

"It is chilling of the First Amendment," Beatty said. "It is chilling of the need of news gatherers to gather the news."

And it is galling, too, given that we're talking about a Supreme Court justice whose speech -- hello? -- reportedly extolled the virtues of the Constitution. Can you spell irony, boys and girls?

As noted, Scalia has written a letter of apology to the Reporters Committee for Freedom of the Press, which had criticized the seizure. While promising to allow future speeches to be recorded, he also said, "The action was not taken at my direction."

The justice's claim of blamelessness is undermined, if not flat contradicted, by Nehemiah Flowers, the U.S. marshal in Jackson, Miss., who told The New York Times, "This is a justice of the Supreme Court and as far as we're concerned, we're following the court's orders."


A spokeswoman for the Marshals Service in Washington added that the confiscation was "based on the justice's standing policy."

You might write it off as an isolated example of a judge's bad judgment, except that there is a context here, isn't there? It's a context that finds the government's powers of surveillance expanded, Americans of Arab heritage detained indefinitely without access to counsel, John Ashcroft legally empowered to poke into our reading habits.

Now there's this: government officials seizing what amounts to a reporter's notes. There can be few things more intimidating or less likely to instill confidence in government's respect for constitutional guarantees. This is, to the contrary, a troubling reminder that there is nothing foreordained about civil liberties, and that the rights we take for granted can be eroded, snatched away.

These are ominous times for freedom. You might want to speak out while you still can.

Posted: April 18, 2004


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