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Published: Thursday, 4/15/2004

Free speech for some

U.S. Supreme Court Justice Antonin Scalia should heed his own words. The United States Constitution, he told an audience at a Hattiesburg, Miss., high school the other day, protects the rights of all. "It's a brilliant piece of work ... people just don't revere it like they used to."

How ironic that the justice's security detail then seized and erased recordings made of his speech by two reporters, one from the Associated Press and the other from the local Hattiesburg newspaper.

It seems that Justice Scalia, who has since apologized for the incident, has a personal "policy" that his public speeches not be recorded.

One problem is, very simply, that such a policy conflicts with the First Amendment to the Constitution the justice supposedly reveres. The other is that a 1980 federal law prohibits seizure of reporters' notes by government agents, in this case a deputy U.S. marshal.

In a broader context, the incident begs some important questions: Just who does Justice Scalia think he is anyway? Does he really believe that he is entitled to speak his mind under free-speech provisions of the First Amendment but that reporters are not entitled to record his words in a public setting under the free-press guarantee of the same amendment?

As one of the high court's "strict constructionist" conservatives, the justice should be embarrassed to flout the constitutional provisions he is sworn to uphold.

Unfortunately, Justice Scalia has a reputation for running off at the mouth, sometimes in speeches and sometimes with extreme vitriol in Supreme Court opinions, as when he accused his court brethren of "buying into the homosexual agenda."

The justice also has drawn deserved criticism as somewhat of a martinet, who apparently believes that the Constitution and federal laws should apply to others but not to him personally.

For example, he recently refused to recuse himself from the court's review of secrecy surrounding Vice President Cheney and the federal energy task force. Justice Scalia and Mr. Cheney are hunting buddies, but the justice blithely brushed aside federal conflict of interest strictures on judges.

The head of the U.S. Marshal's Service in southern Mississippi claims his agent was just providing customary security for the justice when the recordings were seized during a speech, despite the fact that reporters were invited to the event and no announcement of a recording ban was made in advance.

Even if such an announcement had been made, Justice Scalia's no-record "policy" has no foundation in the Constitution or in law if the event is a public one.

If a Supreme Court justice cannot abide the recording of his remarks, perhaps he should stay in Washington and confine his rants to the courtroom.

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