Monthly Archives: April 2004

Two Reporters Told to Erase Scalia Tapes. Justice Scalia gave a speech today in which he said “The Constitution of the United States is extraordinary and amazing. People just don't revere it like they used to.” Meanwhile, a federal Marshal was ordering two reporters to erase tapes of the speech, even though there had been no notice of a no-taping policy. In one case she went so far as to grab a digital recorder from a reporter who, unfortunately, whimped out:

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

I'm curious as to what law authorizes a federal marshall — or any police officer — to enforce such a policy at a Justice's request (as opposed to the property owner's, where it might in some states be a form of trespass) outside federal property anyway. (There may well be one, but not doing criminal law, I don't know of it.)

As an administrative lawyer I'd especially like to know how formalist Scalia would explain that when he fails to give proper notice, his new no-taping policy (an addition to his longstanding no-cameras policy) is nonetheless binding on all present. I'm certain he would not apply this nunc pro tunc reading to most other contracts. Indeed, Justice Scalia is the Justice most strongly identified with questioning the government's right to take any retroactive decisions that harm well-founded expectations, e.g. in his concurrence in Bowen v. Georgetown University Hospital.

And, oh yes, since this is a (small) Takings, it's a Fifth as well as a First Amendment violation, isn't it?

Yes, it's a lovely Constitution. Could its current disrepute have anything to do with the nature and quality of its custodians?