Censorship at the point of a gun
by Bob Barr

The recent actions of an armed United States marshal assigned to protect a Supreme Court justice in Hattiesburg, Miss., raises serious, indeed frightening, questions about federal law enforcement powers and just how far the government is allowed to go in enforcing its own notions of censorship.

The incident took place while Justice Antonin Scalia addressed a high-school audience, ironically on the topic of the U.S. Constitution, which provides for freedom of the press in the First Amendment. The justice was, according to standard procedure, accompanied by United States marshals, who provide security for federal judges while traveling. Apparently, Scalia had told his protective detail that he did not want any recordings made of his remarks, but no such announcement was made to the audience or members of the media.

During the justice's remarks, a deputy marshal -- all of whom are armed as is well-known, standard procedure -- noted that two reporters were recording the remarks and demanded that they immediately stop and erase what had been recorded. Faced with an armed marshal making a demand of them, the reporters complied.

The threshold question of why a Supreme Court justice would address a group of high-school students, with the media present, and demand that no recordings be made, is one thing. But that an armed U.S. marshal felt within her rights to demand that reporters stop performing their constitutionally protected profession and turn over their recordings raises a number of frightening questions.

Since when does providing "security" for a judge include enforcing the justice's personal predilection for not having a record made of his remarks? (The federal laws setting forth the powers and jurisdiction of the Marshals Service clearly do not grant such authority.) How does recording a federal judge's remarks before a group of high-school students endanger the judge? Are U.S. marshals above the Constitution, which expressly guarantees freedom of the press? Are they above specific federal laws; the federal Privacy Act, for example, which expressly prevents federal officials from seizing journalists' materials? Are Supreme Court justices themselves above the law? Can they unilaterally decide when the First Amendment is in effect and when it isn't, especially when they are performing their public duty at public expense? Are marshals exempt from procedures applicable to other Department of Justice employees, who must secure prior approval in any situation in which they might find themselves forced, because of extraordinary circumstances, to seek to impound a reporter's work product? Have we as a society reached the point where we are willing to allow armed government agents to exercise unlimited power over us, even to the point of denying us, at the point of a gun, the ability to exercise explicitly guaranteed constitutional rights?

While the U.S. marshal for the Southern District of Mississippi, in whose jurisdiction the incident occurred, conceded that his office could have handled it better, he defended the actions of his deputy. Scalia issued a personal apology, but the damage was done and the dangerous precedent set. And the Supreme Court itself punted, claiming the ground rules under which individual justices deliver speeches are under the control of the justices themselves.

Organizations representing the reporters have filed complaints with the Department of Justice. Whether those groups seek formal legal action remains to be seen.

The bottom line is that if this sort of intimidation is allowed, it will set a precedent not only for further erosion of First Amendment guarantees, but for other violations of the Bill of Rights as well. If federal agents are allowed to confiscate a reporter's notes at the point of a gun, when that reporter has violated no law, then why wouldn't a federal agent be allowed to deny citizens other constitutionally protected rights? Second Amendment rights to possess a firearm? Fourth Amendment rights to privacy in their homes? First Amendment rights to petition the government or to practice religion?

Making this incident -- and the likelihood that it will go uncorrected -- even more troubling is that it occurs amid the backdrop of a massive crackdown by the Federal Communications Commission on so-called smut on the airwaves. Thank goodness the FCC doesn't have the power to enforce its edicts at the point of a gun. But wait a minute -- the U.S. Marshals Service didn't have authority to seize those reporters' notes at the point of a gun, either, did they?

Former U.S. Rep. Bob Barr is a frequent commentator on political and social issues and the chairman of the American Conservative Union Foundation's 21st Century Center for Privacy and Freedom