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WASHINGTON — In a surprising move, Supreme Court Justice Antonin Scalia expressed regret Monday over the episode last week in which a deputy U.S. marshal ordered two reporters to erase their tape recordings of a speech he was giving in Hattiesburg, Miss. “I was as upset as you were” about the episode, Scalia wrote in a three-paragraph letterto Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who had written him in protest. “I have written to the reporters involved, extending my apology and undertaking to revise my policy so as to permit recording for use of the print media.” The letter was a quick effort to defuse growing criticism of what happened April 7 when Scalia gave a talk before students at Presbyterian Christian High School in Hattiesburg. When Scalia speaks off the bench, he ordinarily makes it clear to his host that he has a policy against his speeches being video- or audiotaped. The policy was not announced before his speech at the school, and two reporters –one for the Associated Press and one for the Hattiesburg American — began taping his speech to assist in their note taking, not for broadcast purposes. A deputy U.S. marshal, assigned to provide security for Scalia, approached the reporters during the speech and confiscated their recorders. They balked at first but then complied. Their recorders were returned after the speech had been erased and was over. Scalia’s letter on Monday did not end the dispute. His distinction between print and broadcast media — allowing taping by the first but not the second — drew a sharp rebuke from Barbara Cochran, president of the Radio-Television News Directors Association. “I am deeply disturbed by your decision, disclosed today, to allow newspaper reporters to use their electronic recording devices while continuing to prohibit television and radio journalists from using theirs,” Cochran wrote in a letter to Scalia. “Your policy of excluding electronic media from your public appearances has been extremely troubling to our members for years, but this decision compels us to protest in the strongest possible terms.” Cochran added, “To exclude television cameras and audio recording is the equivalent of taking away pencil and paper from print reporters. Your policy puts television and radio journalists at a distinct disadvantage.” Justice Scalia in his letter thanked Dalglish for her expression of “well justified concern over the incident,” and agreed with her that changing his policy to allow tape recording by the print media would “promote accurate reporting.” He went on to suggest that he had been misquoted by the tape-deprived journalists in Hattiesburg when they reported his lament that “people don’t revere the Constitution like they used to.” In her letter last Thursday, Dalglish said the actions likely violated federal laws and U.S. Department of Justice policies regarding the confiscation of reporters’ work product. She also urged Scalia to direct his security personnel not to confiscate recordings from the media. Noting that security personnel at the court and in the U.S. Marshals Service “do not operate at my direction,” Scalia nonetheless replied that he would “certainly express that as my preference.” Scalia concluded, “The electronic media have in the past respected my First Amendment right not to speak on radio and television when I do not wish to do so, and I am sure that courtesy will continue.” In a statement issued Monday afternoon, Dalglish said, “We greatly appreciate Justice Scalia’s prompt response to our letter. However, we remain disappointed with his policy regarding electronic media coverage of his speeches, and hope he will reconsider. We’ve never been able to ascertain why he so dislikes television and radio. If we understood his concerns, perhaps broadcasters could address them to his satisfaction.” Scalia’s unusual letter marks the second time in less than a month that he has responded to public controversy surrounding his extra-judicial activities. In a March 18 memorandum Scalia said he would not recuse in a case involving Vice President Dick Cheney’s energy task force, even though he went duck-hunting with Cheney over several days in Louisiana. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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