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April 12, 2004
Scalia Apologizes.. Sort of

I didn't think this would happen.

Looking more closely, though, his apology is pretty thin. He denies that the confiscation was "not taken at his direction," and says to the reporters in a letter, "I was as upset as you were."

Ah, but then...

Justice Scalia said in the letter to the Reporters Committee that the controversy had caused him to revise his policy "so as to permit recording for use of the print media" to "promote accurate reporting." He suggested that he had been misquoted in some accounts as saying "people just don't revere" the Constitution "like they used to." But the letter did not set out his version of what he said, and a court spokesman declined to comment.

Justice Scalia indicated he would continue to ban the recording of his speeches by the broadcast press.

"The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so," he wrote, "and I am sure that courtesy will continue."

source

Several problems here. First, if it wasn't "his direction" that resulted in the confiscation of the tapes, why does he need to change his policy? If that was his policy, then it did occur "at his direction," whether he specifically told the Marshal to do it in that instance or not.

It's the same tactic the administration uses -- if something is not spelled out in the most specific terms possible, then no responsibility can be assigned. He had a policy forbidding taping of his speeches and a Marshal assigned to carry out his policies. But since he didn't specifically tell the Marshal to confiscate that particular tape from that particular reporter, he's off the hook.

Second problem: He argues that his much circulated ironic statement in the speech that "people don't revere the Constitution like they used to" was a misquote. Well here's an idea genius: If people can record your speeches, there will be a record of what you say, and presumably fewer misquotes.

The last problem is a big one: He asserts his First Amendment right to "not speak on radio or television." Maybe if he was speaking as a private citizen, at his son's Bar Mitzvah or something, I could see that. But if he is giving a speech in his capacity as Supreme Court Justice, where does he get the idea that the public has no right to know what he's saying?

The First Amendment does not only concern itself with Freedom of Speech, but also Freedom of the Press, remember? It in no way implies that Speech has precedence over Press.

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