April 09, 2004
U.S. Marshals: What First Amendment?
by Chris Geidner
April 9, 2004 03:17 PM
A U.S. marshal's forced erasure of two reporters' tapes at a speech Justice Scalia gave Wednesday in Jackson, Mississippi, should outrage the justice, the Department of Justice, and anyone who values the First Amendment. To read some of the news reports, check How Appealing's links here.
The latest AP story on the snafu reports that the Reporters Committee for the Freedom of the Press is on the case. They sent a letter (pdf here and news release here) to Attorney General John Ashcroft and the head of the U.S. Marshals Service decrying this act on constitutional, statutory, and regulatory grounds.
According to the AP, the group "said the deputy violated the Privacy Protection Act. The act says government officers may not seize journalists' materials."
On a regulatory front, the group also noted in its letter that "[o]f particular emphasis and importance is the guidelines' requirement that all Department employees obtain the approval of the Attorney General before seeking to compel a journalist to turn over materials."
The group also sent a letter (pdf here) to the justice himself (with the letter to Ashcroft attached), urging that "marshals never again destroy the newsgathering materials of reporters covering his speeches." Let's hope he listens.
Isn't it a longstanding policy of Scalia's that most of his speeches aren't to be recorded? I wonder why he cares? This is exactly the kind of fodder his opponents need to paint him as a whack job.
I think this is more like "What Fourth Amendment?" thing, but I don't know much about the Press Clause, and what rights they have to tape things when people request that they not do so.
Justice Scalia's record on defending the right of free speech is unblemished. He may privately insist that his speeches not be recorded, but that "insistence" does not constitute a 1st Amendment violation, and I highly doubt he would ever endorse the tactics used by these marshalls. Their conduct betrayed everything Scalia has been writing about in his judicial opinions for years.
UCL ... I agree that this is not at all the sort of conduct Scalia would find appropriate, and that's why I think it's good the RCFP sent a different letter to Scalia than the others (with the presumption implicit that he would not find such actions to be appropriate).
Matto ... The right would apply to all people. We have court systems to take care of such issues, not unilateral actions by law-enforcement officers. There wasn't even any "irreparable harm" at issue sufficient for an injunction, let alone some "clear and present danger" necessitating police(-type) action. Thus, while the statutory and regulatory issues involved pertain to reporters specifically, the constitutional issues raised relate to all persons. (There might be more constitutional problems under a "freedom of the press" analysis, but I think the generally applicable freedoms are enough to make the case that this action constituted a severe restriction of rights.)
I didn't say there wasn't a first amendment violation, but I'm pretty sure it would come through a "freedom of the press" argument, which I am not too familiar with. Even your post refers specifically to "journalists' materials."
If you want to argue a generally applicable right under the First Amendment that was violated, then you need to identify something that was supressed because of its communicative impact, and it would bolster the argument by noting any content or viewpoint basis for the restriction. As Volokh notes, there was no speech-restricting law at issue here, so it would have to be that the federal marshalls were implementing a speech restriction, rather than just seizing property wrongly. This sounds like it would require a First Amendment right to video tape events, which I don't think is a right possessed by all.
It looks like the unilateral actions of law enforcement unreasonably seized property, a right that indeed applies to all, but not through the First Amendment.
There could potentially be a Bivens action (if I recall my torts ["the law is a seamless Web"] class) against the marshal based on the press-restrictive action taken under color of law of erasing a recording to be used by the press. This is a particularly valid complaint in light of statutory and regulatory authority leading officials to take the opposite (non-press restrictive) action. That is a possible way a "freedom of press" claim could go forward.
As for this not being speech restrictive, I have this gut feeling that it is quite enormously speech restrictive. I do admit, however, that I am not quite sure how and that my analysis in comments could easily (and perhaps better) apply to the Fourth Amendment protection claimed when the government tried to seize the tape.
My initial thought, though, is that it has potential as a symbolic speech claim. Try this analogy out for size: If burning an American flag is sybolic of your hatred of this country or its policies, then isn't tape recording the words of our leaders an even more strong symbolic action (that we don't trust them, that government leaders must be held accountable for their words, etc.)?
Also, FYI, Scalia didn't request that the first speech not be tape recorded; that is the only reason why the reporters taped the speech.
Also, these were audio -- not video -- tapes.
Looking at Prof. Volokh's post you referenced, he wrote:
To my knowledge, there's no law -- it would presumably have to be a Mississippi law -- prohibiting tape recording of public events, even ones on private property. Even if the reporters had refused to abide by the Justice's request, it seems to me that at most the marshals could have insisted (presumably on the property owner's request) that the reporters leave the property.
In the absence of a law or a request to the contrary, why shouldn't there be a presumption (if not a right) to audio record the speeches of our leaders in accordance with the First Amendment's Speech, Press, Assembly, and Petition clauses, which strongly suggest that we have a right to hold our public leaders accountable as to their public actions?
My mistake on the video. But I still think this is a press right, if anything. I don't think symbolic speech would fly: most people are not expressing anything by taping a conversation or speech. Perhaps if some protesters were holding a "tape-in" to protest Scalia's lack of transparency by not allowing tape recordings, then it could be expressive conduct. But again, if it were expressive conduct, the free speech question would turn on whether it was supressed because of its expressive element, rather than as non-speech conduct.
Also, even assuming a general right to tape, it would depend on the forum: if Scalia were on a soap box in the park, then it would be more difficult to restrict people's conduct around him. Other fora may not be so lenient.
My reason for relying on the press is as follows: recording itself is not speech (my assumption), so the only suppression is of the press's future ability to report on Scalia's words using audio tape, which would certainly be speech. This right to report seem peculiar to the press, and newsgathering would seem only as valuable and protectable as it leads to news disseminating speech (again, I don't know anything about press-specific law on this). I don't know how strong this is, especially given that the press could still gather news and report it, just not in the medium they choose. If the goal of tape recording is to promote accountability in our leaders by watching their words, then this goal is still furthered by allowing the press to enter, take notes, and report.
"Justice Scalia's record on defending the right of free speech is unblemished."
While I wouldn't call this a boil, surely it comes to the level of a zit or, at least, a pimple.
This is an interesting discussion you guys are having, and I Hope you don't mind if I opine on what you are discussing. I have a little to add to what you are discussing and two additional questions...
(A) The is almost certainly a Fourth Amendment violation. At least one of the reporters objected to the taking of her tape and it was taken at any rate. There is no federal crime to which the officer had probable cause to believe the reporter was comitting, and even in the unlikely event that there was probable cause to believe that she was violating state law, i don't think that federal marshals are supposed to be investigating purely state crimes. Moreover, I am just assuming for the purposes of argument that the situation fits into one of the 715 "narrowly delineated, well defined" exceptions to the "near universal warrant requirement".
(B) Because the Marshal violated the Fourth Amendment, she also violated the First Amendment...maybe. This is not Gospel, mind you, but I read Zurcher v. Stanford Daily to implicitly state that, that at the very least, a search or seizure violates the First Amendment when the government conducts a search or seizure of a news organization's news gathering related resources in violation of the Fourth Amendment. Moreover, it also seems to indicate that such searches must be pursuant to a valid warrant, whether or not the warrant would be required for a valid search under the Fourth Amendment.
Zurcher actually holds that the search of a newsroom is permissible, if there is a valid Fourth Amendment search and seizure pursuant to a valid warrant. The court held that the "preconditions to a warrant were enough (probable cause, reasonableness, specificity)" to protect the rights of the press. This was true even if the search and seizure was to collect evidence against someone other than the newspaper. As I said, the case does not necessarily mean that if the search violates the Fourth Amendment it necessarily violates the First as well, but it seems to suggest as much, since if one of the "warrant preconditions" was not satisfied, then it would no longer seem to be enough to protect the rights of the press, as the court puts it. Indeed, it even seems to suggest that a search that complies with the Fourth Amendment, dispite being done without a warrant (or with a warrant that does not in fact meet a necessary precondition to obtaining one), might violate the First Amendment even if it does not violate the Fourth. There is no First Amendment good faith exception either (though I am sure the Cheif Justice would support the idea), so if the seizure violates the First and Fourth Amendments, it might stay out of evidence under the First though it would have been permitted under the Fourth (though this would only come up in a trial where the defendant actually broke the law).
(C) Privacy Protection Act The search also pretty clearly violates the the Privacy Protection act, for the same reason it violates the Fourth Amendment: no probable cause to believe a a crime has been committed.
(D) Could the confiscation of the tape, and destruction of its content constitute a compensable taking under the Fifth Amendment?
(E) If this case ever makes it to the Supreme Court, would Scalia recuse himself?