July 8, 2012

In an exhaustive account, SCOTUSblog publisher and co-founder Tom Goldstein describes, minute by minute, how CNN and Fox News initially misreported the Supreme Court ruling on the health care law:

Here’s what happened at 10:07:20, Goldstein reports:

The CNN and Fox producers are scanning the syllabus. Eight lines from the bottom of page 2, they see the following language: “Chief Justice Roberts concluded in Part III-A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.” They immediately and correctly recognize that sentence as fantastically important. The individual mandate is the heart of the statute, and it is clear that the Court has rejected the Administration’s principal theory – indeed the only theory that was discussed at great length in the oral arguments and debated by commentators.

Into his conference call, the CNN producer says (correctly) that the Court has held that the individual mandate cannot be sustained under the Commerce Clause, and (incorrectly) that it therefore “looks like” the mandate has been struck down. The control room asks whether they can “go with” it, and after a pause, he says yes.

The Fox producer reads the syllabus exactly the same way, and reports that the mandate has been invalidated. Asked to confirm that the mandate has been struck down, he responds: “100%.”

Here’s what transpired at 10:07:50:

In the press room, the CNN producer is still on the conference call with the network executives. Within moments of having confirmed that the mandate was invalidated – a couple of seconds, at most – he reads two-thirds of the way down page 3 of the syllabus, “Chief Justice Roberts concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.” He immediately recognizes that the Court has turned to an alternative defense of the government, and says into both phones, “Wait, wait.”

But it is already too late. CNN has been carefully orchestrating its transformation into a shockingly efficient news distribution company. They have been planning to saturate every screen in reach with this story as fast as possible, and the producer’s initial go-ahead pulled the trigger. On the air, Wolf Blitzer is sending the coverage to the Courthouse steps. And as planned the reporter is putting her phone down to go on the air, which cuts herself off from the only CNN employee with access to the opinion.

No less important, the network’s web and social media teams are plugged directly into the call through CNN central. They immediately publish unequivocal tweets and a breaking news email saying that the mandate had been invalidated.

Goldstein also offers his analysis of why CNN, Fox (and nearly CBS) got it wrong.

I am not a media critic, but here are my “takeaways” from that morning. …

Both CNN and Fox were concerned first and foremost with getting the decision right. Before concluding that their errors were obvious, recognize that one of the best lawyers in America made the same mistake. At 10:08:04, a runner for CBS News reached the Courthouse steps, handing one copy of the opinion to Jan Crawford and another to a brilliant and deeply respected lawyer who had been directly involved in the case (on the side of the challengers), and whom Crawford had asked to stand with her as an analyst. He got the opinion at 10:08:07, and twenty-five seconds later (10:08:32) said (you can hear it on the CBS broadcast video if you listen very closely) “the mandate is invalid.”

But Crawford was focused on reading the opinion herself, so she either did not hear him or did not immediately process what he said. Impressively, the lawyer did not stop for even a heartbeat of congratulations on his apparent victory; he kept reading. In a verbatim reprise of the CNN conference call, he immediately said (at 10:08:44) “wait, wait” and then: the mandate must be “construed as a tax if reasonable” and “it is upheld as a tax.”

But both CNN and Fox exposed themselves to potential failure by

(a) treating the decision as a breathless “breaking news” event, despite the fact that everyone knew when the opinion was going to be released, while at the same time

(b) not putting sufficiently sound procedures in place to deal with the potential complications, and

(c) not placing more faith in the consensus view of the wire reports.

Those errors were avoidable, and were in fact avoided by others. The wire services’ Supreme Court reporters were very experienced in breaking news reporting, and they got it right. Other news sources adapted: they simply sat out the uncertainty of the first few minutes (NPR and The New York Times), set up a system in which their would take the time to read the decision more carefully before reporting (NBC), or augmented their team with an expert (CBS).

As for the success of his own website, Goldstein says:

I feel that we showed that a specialized “vertical” – a deep team with focused expertise – can contribute to reporting. We helped the traditional media and the White House, and we distributed the information directly to the public. We also survived hackers, accommodated a record number of visitors, and had a chance to report on one of the most momentous decisions in recent history. And we had a blast doing it.

Related:E-mail, social media and the 24-hour news cycle are informational amphetamines, a cocktail of pills that we pop at an increasingly fast pace — and that lead us to make mistaken split-second decisions. (Frank Partnoy/The New York Times) | “If the circle of people who possess information is small enough — as with the selection of a vice president or pope or, arguably, a decision by the Supreme Court — the crowds may not have much wisdom to impart.” (David Leonhardt/The New York Times)

Previous: Despite media coverage, 45% of Americans don’t know what Supreme Court ruled on health care | Were CNN & Fox News’ mistakes on Supreme Court ruling part of ‘process journalism’? | CNN memo: “We are not the story” | Abrams warned of media mistakes before Supreme Court ruling | CNN issues correction, Fox issues statement on Supreme Court reporting mistakes

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Julie Moos (jmoos@poynter.org) has been Director of Poynter Online and Poynter Publications since 2009. Previously, she was Editor of Poynter Online (2007-2009) and Poynter Publications…
Julie Moos

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