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Tape recording Scalia

Does anyone find it disturbing that Antonin Scalia, Associate Justice of the Supreme Court, Public Servant, and one of the most powerful individuals in America, does not consent to the recording of his public appearances?

Justice Scalia isn't objecting to the paparazzi taping his dinner conversations with his wife at a restaurant. His objections aren't to recording his private statements. He's not objecting to reporters taping his discussions with his law clerks in his chambers, and possibly interfering with the performance of his duties as a Justice.

Justice Scalia objects to reporters taping his public comments, made in his capacity as a Supreme Court justice, to an audience of high school students. Actually, we don't know this with certainty, since the federal marshall who ordered the tapes erased may have been acting more on his own initiative than Scalia's.

In either case, the press should not tolerate this. Scalia's public comments should be fair game.

Howard Bashman has links.


I find myself pretty much disturbed by *anything* Scalia does these days. He may as well -- that's probably why he doesn't want these things taped.

I kindly disagree. Why should they be fair game? I don't agree that these were "public comments"- they were private comments given to a selected audience. Just because the audience happened to be members of a PUBLIC school does not make his comments PUBLIC comments.

Now, I know you will post some long and scholarly sounding rebuttal to this, using some profound and pedantic twists of logic. So go ahead. Make my day. Shout from your ivory tower.

By the way, lots of law professors similarly forbid any taping of their comments in most venues. Of course, those requests aren't supported by the U.S. Marshalls.

Whether or not Scalia is allowed to forbid taping of his comments at such venues, he probably should have allowed it in this circumstance. What would the harm have been? And the harm of not allowing it was way worse because of the negative press...

You know, I just re-read what I wrote in that first comment and it sounds a lot more caustic than I intended it to. Sorry.

How, exactly, are his comments to a selected audience "made in his capacity as a Supreme Court justice"? Certainly he's been invited to speak because he's a Supreme Court justice. But either you have a much more expansive view of what the duties and obligations of a justice are, or that's a careless statement. Unless the tapes revealed that he was handing down some impromptu judgment, or hearing an unscheduled oral argument?

And are you now saying that any public speaker has no right, when speaking in front of a limited audience, to prevent his speech from being taped? Or is it limited to government officials? Or merely government officials one doesn't like? (Unless I'm mistaken, Clinton's address in Rhodes House when he received his degree from Oxford couldn't be taped.)

What is the rule here, or is it simply that we don't like Scalia?

We don't like Scalia? Great! I thought I was the only one.

You're not the only one.

I hear him speak or give interviews or do forums like Ethics in America or what have you and I think to myself, "Wow self, that guy's really with it."

Then I read some of his decisions and wonder where the other guy (the with it guy) ran off to. Scalia would be a much better News Analysis Host than a judge.


I'm not suggesting either that what Scalia does is illegal, or that Scalia is the only one doing it.

The way I see it, public figures (especially powerful governmental figures) ought not to restrict how listeners treat their public utterances. Part of a vibrant democracy is accountability, and part of accountability is the ability to record an official's public statements for the sake of making it easier to evaluate them at a convenient time.

As for caustic, I don't mind caustic. That's what blogs are for. :)

I don't think that Scalia's remarks were made in his capacity as a justice; nevertheless he is one of the most powerful and influential men in the country and his remarks are newsworthy. All the news reports do suggest that he allowed the reporters into the room and told no one, except the Marshalls, that his remarks were not to be recorded. The reporters should have been allowed to keep their recordings, imho.

However, I have no idea what the legal precedent for allowing or disallowing a recording of public remarks is (I would argue that if reporters were allowed to be present, the remarks are public).

I hope he generates a lot of negative reaction and press and crawls back into the hole from whence he came. Oh. Did I say that? I guess you should put me into the camp of people that can't stand Scalia. :)

I simply suggest that when the great Scalia is in residence here at Michigan next fall you simply follow him around tape recording everything he says. Or at least you could wear a t-shirt to each one of his speeches that says "Are you sure no one in this room is taping right now?"

Great idea. I mean, he is a Justice and all, and what he says is really really important, and I might forget a word or two along the way...

If we sold those T-shirts, do you think we'd get a visit from the Marshall??

Over at Volokh Conspiracy, David Bernstein has made an interesting argument in terms of the value of anonymity for Supreme Court justices. Compared to other public officials, judges are required to give a detailed explanation for their decisions. How much more do we want or need and would the additional information be helpful. The URL linked is to the article on the Volokh Conspiracy.