First Amendment Right Not To Speak...
Eugene Volokh has a great post on Scalia's claimed right not to be recorded.
I've got no problem with him asserting the right not to be recorded by t.v. -- as long as he is making a personal appearance and isn't making a representation of the Court. such first amendment rights belong to him as a person, but I don't think they apply to him in his official capacity.
when he is acting as a representative of the Court, I believe he is acting as an official. if that is so, then the Court itself would have to define whether he has the right to refuse to speak before t.v. cameras.
the question becomes: is he acting in his official capacity when he is speaking before a particular group?
this question turns on another issue: is he being paid an honorarium?
this harkens back to the O'Connor issue about the honorariums -- if the justice is paid an honorarium, wouldn't the function holder hold the right to decide whether the t.v. is invited to document the event? the justice is basically being hired to give a speech.
another question: wouldn't the justice have to agree to appear on t.v. in order to speak?
if he is not being paid an honorarium, then he is either doing it for free for non-pecuniary gain (a personal appearance pro bono in exchange for the kudos) or he is acting as representative of the Court -- giving a speech that any other justice could just as easily give (i.e. to a high school group).
It seems that Scalia would have to at least deal with the issue contractually in cases where he is being paid. He could say, "I'm not coming unless you promise not to record," or they could say, "you can't come unless you promise to be recorded."
but where he isn't being paid, I suppose it would depend on who is paying his expenses. If the Court is -- even through annual travel allocations -- then the Court has to decide the policy.
So it looks like either the Court or the event promoter would hold the cards as to whether he gets recorded. He seems only to be acting in a personal capacity so as to trigger his 1st Amendment rights when he is speaking for free as a person who just so happens to be a supreme court justice, on topics not integrally related to the Court's business.
Eugene Volokh has a great post on Scalia's claimed right not to be recorded.
I've got no problem with him asserting the right not to be recorded by t.v. -- as long as he is making a personal appearance and isn't making a representation of the Court. such first amendment rights belong to him as a person, but I don't think they apply to him in his official capacity.
when he is acting as a representative of the Court, I believe he is acting as an official. if that is so, then the Court itself would have to define whether he has the right to refuse to speak before t.v. cameras.
the question becomes: is he acting in his official capacity when he is speaking before a particular group?
this question turns on another issue: is he being paid an honorarium?
this harkens back to the O'Connor issue about the honorariums -- if the justice is paid an honorarium, wouldn't the function holder hold the right to decide whether the t.v. is invited to document the event? the justice is basically being hired to give a speech.
another question: wouldn't the justice have to agree to appear on t.v. in order to speak?
if he is not being paid an honorarium, then he is either doing it for free for non-pecuniary gain (a personal appearance pro bono in exchange for the kudos) or he is acting as representative of the Court -- giving a speech that any other justice could just as easily give (i.e. to a high school group).
It seems that Scalia would have to at least deal with the issue contractually in cases where he is being paid. He could say, "I'm not coming unless you promise not to record," or they could say, "you can't come unless you promise to be recorded."
but where he isn't being paid, I suppose it would depend on who is paying his expenses. If the Court is -- even through annual travel allocations -- then the Court has to decide the policy.
So it looks like either the Court or the event promoter would hold the cards as to whether he gets recorded. He seems only to be acting in a personal capacity so as to trigger his 1st Amendment rights when he is speaking for free as a person who just so happens to be a supreme court justice, on topics not integrally related to the Court's business.
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