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Tuesday, Sept. 14, 2004

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  The government's concessions were contained in court papers filed Friday in response to a lawsuit by the news organizations.

While agreeing the federal Privacy Protection Act forbids the seizure of the work product of a journalist, the government said the plaintiffs were not entitled to an injunction that would bar the Marshals Service from a repeat of the incident.

The lawsuit filed in May will continue on the outstanding issues, including the request for an injunction, Leonard Van Slyke, a lawyer for the AP, said Tuesday.

"The United States government has acknowledged that it violated the rights of the reporters and their employers by requiring the erasure of their tape recordings of Justice Scalia's speech," Van Slyke said. "We feel this is certainly an appropriate concession.

"What remains before the court are constitutional issues, and the question of whether the United States will be enjoined from taking similar actions in the future," Van Slyke said.

Nehemiah Flowers, the U.S. marshal for the Southern District of Mississippi, and a spokesman for the U.S. Marshals Service in Washington did not return phone messages Tuesday.

During an April 7 speech at a high school in Hattiesburg, a deputy federal marshal, Melanie Rube, demanded that AP reporter Denise Grones and Hattiesburg American reporter Antoinette Konz erase recordings of the justice's remarks. The reporters had not been told before the speech that they could not use tape recorders.

When Grones resisted, the marshal took the digital recorder out of her hands. The reporter then showed Rube how to erase the recording.

Rube then reached across Grones and demanded that Konz hand over her tape. Konz surrendered the tape and, after the speech, was able to get it back only after she erased the recording in front of the marshal.

The exchange occurred in the front row of the school auditorium while Scalia spoke on the Constitution. Scalia later apologized and said he would make it clear in the future that recording his remarks for the use of the print media would not be a problem.

The lawsuit contended the marshal's actions "inhibited and interfered" with the ability of the reporters to gather, analyze and disseminate complete information to their readers. It says the act violated due process and the constitutional protections from unreasonable search and seizure.

In a separate motion filed Friday, the government asked the court to dismiss Rube as a defendant. Rube, the Marshals Service and unidentified John Does were named as defendants.

The Privacy Protection Act "does not permit claims against federal employees in their individual capacity," the government said.

Flowers had said after the incident that Rube's erasure of the recordings was appropriate, given that one of the service's responsibilities is to provide a traveling Supreme Court justice with security.

However, Flowers conceded that Scalia's wishes that his remarks not be recorded should have been publicly announced before the speech.

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