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Monday, July 09, 2012

"The Fog of Law": Covering the Court

If, as some believe for varying reasons, the ACA decision will have limited precedential effect, perhaps its legacy will be on how the press covers the Court. For one thing, we have the seemingly unusual number of leaks in the immediate aftermath of the decision. For another, we have the rush to report the result as quickly as possible, leading to the famously incorrect initial reports by Fox and CNN that the individual mandate had been invalidated. Tom Goldstein has this lengthy rundown of the nine minutes from when the Chief began reading the opinion from the bench (at which point the Court's Public Information Office began distributing the opinion) until CNN corrected itself.

As Goldstein describes it, it was quite the ride. I was particularly intrigued by several things in the rundown: 1) His description of the information gap at the White House and that, for a while, the President knew less than much of the country; 2) the nice media ethics question of whether Fox or CNN screwed up or whether this is just how immediate reporting should go, with the key being their willing to quickly self-correct; 3) the way social media, even when connected to a larger news organizations, has a life of its own--news organizations were holding off until they got it right, but their own Twitter desks were reporting something; and 4) the way some SCOTUSBlog commenters were mad at the Blog reporters when their conclusions conflicted with Fox and CNN (Tom describes them as insisting that Fox and CNN were res judicata on other sites). Finally, the Fox anchor began the process of correcting the network by saying reports are coming in the "fog of law"--that is a fantastic title for an article, name for a legal blog (if Dan someday boots me off here, you know where to find me), or both.

I continue to believe this was a unique case in terms of the number of people (and not just lawyes, politicos, and other over-educated geeks) paying attention to a a case with a known date of decision, so maybe this remains sui generis. Still, Goldstein offers some suggestions for both the news outlets and the Court itself for handling future cases.

Interestingly, the one thing Tom does not mentin is cameras in the Court. Wouldn't it all have been so much easier and more accurate if there had been live video and audio of Roberts reading his summary from the bench? Everyone could have waited and watched it play out in real time and gotten the answer directly from Roberts himself. Relying solely on the press (and other information outlets such as SCOTUSBlog) as intermediaries is problematic when the race to be first results in fundamental mistakes, no matter how easily correctable and ultimately harmless.

Posted by Howard Wasserman on July 9, 2012 at 10:44 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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maybe it would have been better if they only released the opinions to the media AFTER the bench statements

Posted by: Joe | Jul 9, 2012 1:30:17 PM

Howard, I suppose that that might be true for the live TV side of it, but two caveats.

First, the networks' online presences and the viewers would have reacted in real time. They would not have waited for him to finish. There would have been an even larger deluge of inaccurate "news" the instant that Roberts indicated that the commerce power argument had lost.

Second, the networks' desire to "scoop" is driven by advertising. To the general public, hard news reporting is essentially fungible; if a volcano erupts in the northwest, I don't care whether I read about it on MSNBC, Fox, or CNN; I click on the first one that I see. The only people who care are the beancounters at MSNBC, Fox, or CNN, because their revenues are tied to the number of viewers, and so they race to be the first one that I see and therefore the source on which I click. That incentive isn't changed by a live feed. There was a rush-to-print while Roberts was still speaking; I think that you'd still have seen exactly the same rush-to-print if he had been speaking on camera, and in any event, the people who would have been best-informed fastest would not have been those watching the live feed, it would have been those reading SCOTUSblog.

Posted by: Simon Dodd | Jul 9, 2012 12:26:09 PM

But if the camera is showing it live, there wouldn't be any gun-jumping because you take away the need for the press intermediary to do anything. The networks would simply show Roberts reading his summary as he is reading it.

Posted by: Howard Wasserman | Jul 9, 2012 11:40:52 AM

Howard, re cameras in the courtroom, funnily enough, I had almost entirely the opposite reaction. The things that went wrong that morning were largely the result of broadcast media and amateurs. The people who knew what they were doing (Jan Crawford, Pete Williams, SCOTUSblog) are the people who have at least some legal expertise. The people who got it wrong were, without exception, gun-jumping broadcast media not staffed with lawyers. Add cameras in the courtroom and you make the situation a million times worse, not better, because now, instead of two outlets calling it wrong, you have a million people hearing the Supreme Court announce an opinion for their very first time, total amateurs with zero familiarity with the law or procedures at the court, all making exactly the same mistake and rushing to social media sites. That's much worse.

In fact, there's a line in the story that reinforces my impression on this point. The administration had a lawyer in the press room, listening to the opinion announcement over the tannoy. By the time that SCOTUSblog had correctly announced the result, Roberts was still reading the section of his opinion that holds the mandate invalid under the commerce power. When the White House calls the lawyer to resolve the competing accounts from CNN and the wires, so far as the lawyer knows—and so far as anyone would know if they were watching or hearing a live feed from the courtroom on CSPAN—the mandate is dead. The most informed people that morning were those who were reading and trusted SCOTUSblog, which most of us could have told you before the case was even argued. (And yet, absurdly, the court gives CNN a press credential while refusing SCOTUSblog. That ought to be reversed.)

There was a place for the uninformed amateur that morning, and it was SCOTUSblog's live stream. The fog of law is no place for laymen.

Posted by: Simon Dodd | Jul 9, 2012 11:22:14 AM

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