Scalia v. Sound Bite News Coverage

Justice Scalia has a long and well-known policy of not permitting his public speeches to be recorded. The reasons for this go beyond the controversy over his statements about the Pledge of Allegiance case, and his recusal from that case - the fact is, it is difficult for a Supreme Court Justice to speak on any subject of public interest without somehow suggesting how he might ultimately rule on a matter or controversy that may ultimately come before the Court.

The latest controversy surrounding Scalia involves the seizure of tape recordings made by members of the news media, of a speech Scalia made at a high school. Apparently the reporters who made the recordings were informed before a morning presentation that no tape recording was permitted, but no similar announcement was made prior to an afternoon presentation. (Now, due to the legalities involved, there is disagreement over whether the tapes were seized and erased, or whether the Marshal who approached the reporters simply made a polite request for the tapes.)

While I do think the manner of seizure was heavy-handed, and I am a strong advocate of a free press and of the distribution of this type of information, I have to wonder what the reporters were thinking. Were they naive of Scalia's long-standing policy on recording, such that even after the morning's announcement they honestly believed that he would not object to their recording his afternoon presentation? Or were they hoping that the failure to give a second announcement in advance of the afternoon presentation would allow them to avoid what they knew to be the case - that Scalia would not approve of their recording his presentation? I would have a lot more sympathy for the reporters if I thought this was an innocent mistake, but my suspicion is that they were trying to avoid Scalia's well-known policy on what some might call a "technicality".

It seems that all parties involved in this latest controversy could have acted more responsibly.

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