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In refusing to allow radio or television broadcast of his off-the-bench speeches, Supreme Court Justice Antonin Scalia says he is trying to preserve the judiciary’s “traditional stance” of remaining out of public view. “It has been the tradition of the American judiciary not to thrust themselves into the public eye, where they might come to be regarded as politicians seeking public favor,” Scalia wrote in an April 9 letter to one of two Mississippi journalists whose tape recorders were confiscated by a deputy U.S. marshal during an April 7 speech by Scalia in Hattiesburg. The letter, which also apologizes to the reporter for the incident, offers the justice’s first public explanation of his controversial ironclad rule against broadcast coverage. “Writing books and speaking to schools and learned societies is one thing; but going live on national radio or TV is something else,” Scalia wrote to Antoinette Konz of the Hattiesburg American. “I realize that not all judges follow this policy, and it may be that my efforts to pursue it are doomed to failure.” In the aftermath of the widely publicized Mississippi incident, Scalia’s policy has been the target of widespread criticism in the media. The U.S. Marshals Service says the actions of the deputy marshal were meant to implement Scalia’s policy, which had not been announced to the audience at the Presbyterian Christian School in Hattiesburg. After Scalia’s speech was erased, the reporters’ recorders, which they were using to assist in note-taking, not for broadcast, were returned to them. In his note to Konz, Scalia said, “I abhor as much as any American the prospect of a law enforcement officer’s seizing a reporter’s notes or recording. The marshals were doing what they believed to be their job, and the fault was mine in not assuring that the ground rules had been clarified.” Scalia added parenthetically, “To tell the truth, even if they had been clarified and some reporter had broken them, I would not have wanted the tape erased.” As expressed in the letter, Scalia’s general policy against broadcast coverage differs significantly from that of other justices, current and former, as well as a number of visible federal and state judges. Chief Justice William Rehnquist and Justice Sandra Day O’Connor have frequently given broadcast interviews in connection with the publication of their books, and O’Connor and Justice Stephen Breyer last July appeared together on the ABC News show “This Week with George Stephanopoulos.” In the past, justices ranging from Hugo Black to Earl Warren to Harry Blackmun gave occasional broadcast interviews, notes University of Virginia political scientist David O’Brien. And the late Chief Justice Warren Burger “wanted all the attention he could get, when he wanted it,” O’Brien adds. O’Brien, who has written extensively about the relationship between the judiciary and the public, agrees that Scalia’s concept of the judiciary as a taciturn institution may have been valid decades ago. “Felix Frankfurter called it judicial lockjaw,” O’Brien says. “But that has increasingly eroded in the last 30 years.” RELENTING FOR PRINT MEDIA ONLY Scalia’s apology to the reporters and his separate note to the Reporters Committee for Freedom of the Press, which protested the Mississippi episode, were unexpected, but did not entirely end the controversy. “I was as upset as you were” about the episode, Scalia wrote in a three-paragraph letter to Lucy Dalglish, executive director of the Reporters Committee, which had protested the confiscations. “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.” Scalia 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 of protest to Scalia, Dalglish said the actions likely violated federal laws and 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 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.” Scalia’s 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.” Dalglish of the Reporters Committee issued a statement in response to Scalia’s letters last week. “We greatly appreciate Justice Scalia’s prompt response to our letter,” she wrote. “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 extrajudicial 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.

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