The Justice in the Bubble

Supreme Court Justice Antonin Scalia lives in a place of such privilege that even his public statements may not be repeated. However, in apparently ordering a U.S. deputy marshal to confiscate and erase recordings made by two reporters invited to attend his speech to a high school crowd in Mississippi, he has gone too far.

The occasion is rich with irony, since Scalia was instructing students that “I am here to persuade you that our Constitution is something extraordinary, something to revere.” The students could certainly conclude that Scalia’s actions speak louder than his words. The U.S. marshal in charge of the region has defended his subordinate’s action, noting only that perhaps a prohibition on recording should have been announced beforehand. But why is it the job of federal law enforcement to carry out Scalia’s whim?

If Scalia failed to communicate that no members of the press were to be allowed at his speech, that was his problem, not the reporters’ or the school’s. Once the reporters were invited by Scalia’s hosts, attended the speech and recorded it, there was more than a whiff of the jackboot in ordering federal police to grab the recordings.

Supreme Court justices do have a legitimate sphere of privacy that extends to their deliberations and maybe even to public appearances. But Scalia has made an obsession of walling out the press. It reached its previous pinnacle a year ago, when he barred reporters from a ceremony in Cleveland where he accepted a free speech award.

Seizing tapes outright, as happened at Presbyterian Christian High School in Hattiesburg, is a more serious matter. Experts like Burt Neuborne, former legal director of the American Civil Liberties Union, and Jane Kirtley, a law professor at the University of Minnesota, say Scalia’s move appears to violate 1st Amendment rights as well as a 1980 privacy protection law that specifically defines protections for journalists who seek to disseminate information to the public. Whether or not Scalia wants to accept it, he is governed by the same laws that he interprets for others.

Scalia had already carved out his separate zone of ethics by refusing to recuse himself from a case involving Vice President Dick Cheney after spending a weekend duck hunting in Louisiana with Cheney, who arranged for Scalia to travel with him on Air Force Two. By imperiously ordering his federal law enforcement escort to seize reporters’ digital and tape recordings, he denigrates the U.S. marshals’ office, the students listening to him and the very U.S. Constitution he so copiously praises.