The Race for the First Report in Legal Journalism

JURIST Guest Columnist Toni Locy of Washington & Lee University says that the erroneous news reports about the Supreme Court's decision on the constitutionality of the Affordable Care Act were the result of a desire for speed over quality in journalism...

When a big news story breaks, the pressure builds on today's reporters to tweet, blog and pontificate on cable TV — all within seconds. Those multi-media elements combined Thursday to form a perfect storm of bad reporting when CNN, Fox News and the Huffington Post reported incorrectly that the US Supreme Court had struck down the Affordable Care Act.

As a former reporter who covered the Supreme Court, I was interested in seeing how blogs, one in particular, fared against cable TV. A few minutes before 10 AM, I tuned my television to CNN and I used my iPad to log on to SCOTUSblog, a highly respected site that covers Supreme Court cases. SCOTUSblog's correspondent Lyle Denniston, whom I have known for years, and lawyers who work for the site were posting live and told their readers at 10:07 AM, that they had the Court's decision in hand.

At exactly the same time, CNN and Fox News reported that the Court had struck down the individual mandate provision of the health care law, finding it was unconstitutional under Congress's power to regulate commerce. CNN anchor Wolf Blitzer called on correspondent Kate Bolduan, who quoted producer Bill Mears as saying his first reading of the decision revealed that the law had been ruled unconstitutional. Simultaneously, Fox News anchor Bill Hemmer went live to correspondent Shannon Bream, who was outside the Court. Bream, a former corporate lawyer, waved a copy of the opinion in the air and pronounced, "It means the mandate is gone."

At 10:08 AM, as the cable TV networks bungled the story, SCOTUSblog got it right, a mere minute mind you after it had advised its readers that Denniston had obtained a copy of the opinion and had begun reading it. The 10:08 AM post read, "The individual mandate survives as a tax." At 10:10 AM, the blog said, "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court." Three minutes later, the blog told its readers, "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read."

In the interim, the Huffington Post tweeted a back-handed correction: "CNN, Fox News get health care ruling wrong http://t.co/3IrzDqih We jumped the gun in following them. Apologies for the confusion." Two others re-tweeted the bad information from CNN — the Washington Post's The Fix blog and NPR — taking someone else's word for it and, in effect, vouching for it without checking it out.

How did this happen?

Lawyer Jeffrey Toobin, CNN's well-known legal analyst, was inside the courtroom, and later provided a convoluted explanation of how the error occurred: He said that when Chief Justice John G. Roberts Jr. read the opinion from the bench, he started by addressing whether the individual mandate provision of the health care law passed constitutional muster under the Commerce Clause.

"So it looked to all the world ... like the chief justice for the majority was going to strike down the law," Toobin said. But then, the legal analyst said, Roberts turned to Congress's power to tax as a justification for upholding the law. "It was an extraordinary turn of events because five minutes into Chief Justice Roberts's opinion, you would have asked anyone in the room whether this law was going to be held unconstitutional, I think we all would've said yes. But we were all sitting there, we had to sit till the end, and this turn of events surprised me, that's for sure."

That would be understandable, if that's how reporters covered Supreme Court decisions — but it's not.

Like everything else with the Court, there is a ritual in how and when decisions are disseminated to the news media. Reporters have two choices:

Take a seat in the Court's ornate chambers and listen to the justice who wrote the majority opinion as he or she reads a summary of the decision from the bench. If you opt for this time-consuming approach, you cannot communicate with anyone outside of the courtroom to report the outcome because electronic devices are not permitted inside the chamber.

Or, a reporter can participate in a scrum in the office of the Court's public information officer, who stands beneath a speaker that pipes in the audio from the courtroom on a floor above. Once the PIO hears the chief justice introduce the justice who will read the majority opinion in a case, she and her assistants begin to hand out paper copies of the decision to the assembled reporters. Journalists with sharp elbows — and Denniston may have the sharpest of all — rush to grab the opinion to gain a second or two of an advantage on their competition.

If Toobin were flying solo, and if the timeline of the mistake were different, I might be more willing to accept his explanation. But he wasn't, and it isn't. On big decision days, the TV networks typically assign a producer to wait in the PIO's office to grab a paper copy. Anyone who's covered the Supreme Court knows you can skim through a paper copy of an opinion faster than a justice takes to read a summary of the decision from the bench.

Toobin had a producer, Mears, and a correspondent, Bolduan, on site. Toobin was stuck in the courtroom, listening to Roberts, as Blitzer and another CNN anchor, John King, declared that the decision "gutted" the "centerpiece" of the health care law and dealt a "direct blow to President Obama." Mears couldn't have been in the courtroom with Toobin because Bolduan said he had read the decision. The only way he could've done that was to obtain a copy in the PIO's office. Bream, the Fox News reporter, was in front of the building as Roberts read from the bench.

Sounds bad, right? It is, but reading a Supreme Court decision and explaining it quickly isn't as easy as it looks. I remember watching NBC's Pete Williams and Dan Abrams struggle to decipher the Court's ruling in Bush v. Gore in 2000, as a cold winter wind whipped the pages they held in their hands. It was painful to watch as they struggled to figure out who was going to be in the best position to win the presidency. I also know what the pressure to be fast and right feels like: I was working for the Associated Press in 2006 and covered the ruling in Hamdan v. Rumsfeld, in which the justices struck down the Bush administration's military tribunals for suspected terrorists. I don't think my colleague and I breathed for an hour.

Even if it is a tough assignment — and it is — that doesn't excuse shoddy reporting conducted in the pursuit of bragging rights over who is "first" to report an outcome. Reporters still need to read the decisions, and read them carefully.

That didn't happen at CNN, Fox News and the re-tweeting news outlets on Thursday because their reporters failed to appreciate that arguments before the Supreme Court are nuanced, with multiple layers, and it is common for lawyers to provide the justices with several options in the Constitution to fall back on to justify ruling one way or another. In the health care case, the solicitor general gave the justices three possibilities. If reporters look for the Court's response to only one of a party's arguments, as CNN, Fox News and re-tweeters did, they increase their chances of being wrong.

There is great responsibility that comes with reporting on contentious issues in today's digital age. That is why we need news media outlets that are well versed in the art of reading a Supreme Court decision, even under extraordinary deadline pressures. Denniston, who has covered the Court since the 1950s, is a master at it. He and his colleagues at SCOTUSblog — and mainstream media outlets such as the New York Times — showed us how it can, and should be done.

They moved quickly, but they didn't rush. They were careful, but they didn't over-reach. Instead they provided the public with an accurate, sane account of what happened.

Toni Locy is the Donald W. Reynolds Professor of Legal Reporting at Washington and Lee University. She was a reporter for 25 years, specializing in legal coverage for the Associated Press, Washington Post, USA Today and the Boston Globe, among other news outlets. She is also a member of JURIST's board of directors.

Suggested citation: Toni Locy, The Race for the First Report in Legal Journalism, JURIST - Forum, June 29, 2012, http://jurist.org/forum/2012/06/toni-locy-ppaca-journalism.php.



This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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