The Des Moines Register weighs in on the Scalia tape issue. Last Wednesday, Justice Scalia was giving a public speech at a Mississippi high school. When it came to the attention of some federal marshalls that the speech was being taped by reporters, the marshalls seized the tapes and had them erased, indicating that recordings weren't allowed. The Register points out this could be an unconstitutional seizure under the 4th Amendment, and at the very least acts as a poor example of the value of free speech under the 1st Amendment.



At least they got it right, unlike the NY Times editorial, which stated:



"Most unwelcome, though, and offensive to the First Amendment, was his suggestion that he retains a "First Amendment right" to bar audio and visual coverage of his public speeches by the electronic media. There is no such right, as any person charged with safeguarding America's cherished free speech rights should easily see. With due respect, Justice Scalia, this is about something larger than being camera shy."



Actually, as David Bernstein of Volokh Conspiracy points out, because the judge had no obligation to speak under those circumstances, he did have the right to condition his agreement to speak on a guarantee there would be no recording devices allowed, just like anyone else. In other words, he can't stop someone from broadcasting a tape that had been made, but he could refuse to speak if he saw someone was recording the presentation.



Where it becomes sticky is using federal marshalls to seize the recordings after they were being made. The situation changes from a person enforcing his private contractual right not to speak, into an improper government seizure of property that implicates the 4th Amendment.



According to the article, Scalia says that he didn't authorize the seizure. Let's just say I seriously hope not.