The Times closes an editorial today on Justice Scalia’s apology as follows:
Justice Scalia’s apology is welcome. Most unwelcome, though, and offensive to the First Amendment, was his suggestion that he retains a “First Amendment right” to bar audio and visual coverage of his public speeches by the electronic media. There is no such right, as any person charged with safeguarding America’s cherished free speech rights should easily see. With due respect, Justice Scalia, this is about something larger than being camera shy.Justice Scalia has no obligation to give any public speeches. A fortiori, he has the right to condition his willingness to speak at a given venue on the absence of audio and visual coverage. (Edit: Of course, Justice Scalia could not stop a t.v. or radio station from airing footage of one of his speeches, if they acquire it. But he certainly could refuse to go ahead with a talk if he sees microphones or t.v. equipement present.)
Though I think Justice Scalia could bend a bit on this issue, I do like the fact that the Justices’ relative anonymity allows them to live more or less normal lives. I once stood in line in back of Justice Ginsburg and her husband at a Gilbert & Sullivan production in D.C. (To her great credit, she did not pull rank to either avoid the line or get particularly good seats.) There must have been federal marshals somewhere, but I didn’t notice them. We already have an Imperial President and an Imperial Congress. We don’t need an Imperial Judiciary, too.
UPDATE: My understanding of the Times’ editorial was that the editors were implying that Scalia had some sort of legal obligation to the public, as a government official, to permit t.v. and radio to rebroadcast all or excerpts of his public appearances. I have heard such an obligation, in fact, discussed in terms of the public’s “First Amendment” right to know. I pointed out that in fact Scalia has no obligation to speak to the public at all, and thus cannot be under any obligation to speak when radio or t.v. equipment is present. A rule forcing him to speak under such circumstances would, in fact, violate the First Amendment. Thus, despite the objections Eugene notes in his post above, I maintain that Scalia is technically correct that he has a First Amendment right not to speak on radio or television. The accent should be on the “to speak”, not on “the radio or television.” He certainly has the contractual right to require that his hosts ban t.v. and radio equipment from his speaking venues. This contractual right is in the service of his First Amendment right to speak when, where, and under the conditions that he has voluntarily agreed to.
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