CNN, Fox fumble the call, capping months of media misperception
This TV frame grab shows CNN broadcasting the Supreme Court's decision on President Barack Obama's health care law on June 28, 2012. Both CNN and Fox News Channel incorrectly reported Thursday that the law's central provision, requiring virtually all Americans to have health
The networks' mistaken calls on the Supreme Court's healthcare ruling came after much media speculation – often flat-out wrong – that sprang up following oral arguments before the high court.
CNN and Fox News botched their initial reports on Thursday's U.S. Supreme Court healthcare ruling, a final media misstep following months of coverage that frequently predicted the high court probably would overturn President Obama's signature domestic initiative.
The mistaken coverage of the highly anticipated decision came not long after Chief Justice John G. Roberts Jr. began reading his majority opinion from the bench just after 10 a.m. EDT Reporter Kate Bolduan announced on CNN: "It appears as if the Supreme Court has struck down the individual mandate," and CNN's website proclaimed "Mandate Struck Down."
On Fox, anchor Bill Hemmer announced: "The individual mandate has been ruled unconstitutional." An on-screen headline announced: "Supreme Court Finds Health Care Individual Mandate Unconstitutional."
Within minutes, both networks corrected their misreporting, which stemmed from the fact that Roberts first announced that the healthcare law would not be upheld under the commerce clause of the Constitution, before he said the law passed constitutional muster under Congress' taxing authority.
In a statement, CNN said it "regrets that it didn't wait to report out the full and complete opinion regarding the mandate. We made a correction within a few minutes and apologize for the error."
Fox offered a statement of explanation, but not regret. "We gave our viewers the news as it happened. When Justice Roberts said, and we read, that the mandate was not valid under the commerce clause, we reported it," said Michael Clemente, Fox executive vice president for news. "Bill Hemmer even added, be patient as we work through this. Then when we heard and read that the mandate could be upheld under the government's power to tax, we reported that as well—all within two minutes."
The faux pas by the two cable outlets were reminiscent of earlier rush-to-judgment news calls, including when some outlets misinterpreted the Supreme Court's ruling in Bush vs. Gore, which handed the 2000 contested presidential election to George W. Bush.
Misperceptions of the court and how it would rule on the Affordable Care Act began long before Thursday's ruling. After oral arguments in March, many observers interpreted tough questioning of Solicitor Gen. Donald B. Verrilli Jr. as a sure sign that the law was in danger.
"This law looks like it's going to be struck down," legal analyst Jeffrey Toobin said on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong." On Thursday, Toobin, author of one book on the Supreme Court and currently writing a second, conceded that he blew it. He told the cable news audience that it was "a day for me to eat a bit of crow."
Among those who suggested the eventual outcome was the Los Angeles Times' David Savage. In a story published Monday, the veteran Supreme Court reporter wrote that "lurking in the background is a way to decide the case on tax law grounds."
The Savage story noted that one of the Obama administration arguments was that in "practical operation" the requirement to buy insurance amounted to a tax law. And Congress' power to approve taxes is clear.
"So, in the end, the justices could agree the law's required tax payments are constitutional," The Times story said, "while also making clear the government does not have broad power to mandate purchases."
While pointing primarily at her belief that the law would be upheld under the commerce clause, longtime Supreme Court journalist Linda Greenhouse also predicted after the oral arguments that the law would be upheld.
Greenhouse, who covered the court for the New York Times for three decades and now teaches at Yale, based her argument primarily on the belief that the government had wide latitude under the commerce clause. But she also noted: "In addition, or as an alternative to upholding the individual mandate as an exercise of congressional authority under the commerce clause, some may prefer to treat the individual mandate as a tax, squarely within Congress' taxing power."
In the rough questioning of Verrilli, many court watchers in the Spring missed something that Greenhouse found significant: Chief Justice Roberts' skepticism about the argument by opponents that the law was forcing commerce (in the form of health insurance purchases) on consumers. "I don't think you're addressing their main point," Roberts said to one of the lawyers, "which is that they are not creating commerce in healthcare. It's already there."
Greenhouse predicted in April, correctly, that "the chief justice will be in the majority and will write the controlling opinion."
On Thursday, Greenhouse was busily working on an essay about how the ruling may begin to define the court Roberts has now headed for seven years. She said she understands some mistakes made by the media in covering the complex workings of the institution, but not the ones made on cable TV this time.
"It's the imperative of the instant-answer that causes it and sometimes there isn't an instant answer," she said. "Sometimes you have to stop and think."
The mistaken coverage of the highly anticipated decision came not long after Chief Justice John G. Roberts Jr. began reading his majority opinion from the bench just after 10 a.m. EDT Reporter Kate Bolduan announced on CNN: "It appears as if the Supreme Court has struck down the individual mandate," and CNN's website proclaimed "Mandate Struck Down."
On Fox, anchor Bill Hemmer announced: "The individual mandate has been ruled unconstitutional." An on-screen headline announced: "Supreme Court Finds Health Care Individual Mandate Unconstitutional."
Within minutes, both networks corrected their misreporting, which stemmed from the fact that Roberts first announced that the healthcare law would not be upheld under the commerce clause of the Constitution, before he said the law passed constitutional muster under Congress' taxing authority.
In a statement, CNN said it "regrets that it didn't wait to report out the full and complete opinion regarding the mandate. We made a correction within a few minutes and apologize for the error."
Fox offered a statement of explanation, but not regret. "We gave our viewers the news as it happened. When Justice Roberts said, and we read, that the mandate was not valid under the commerce clause, we reported it," said Michael Clemente, Fox executive vice president for news. "Bill Hemmer even added, be patient as we work through this. Then when we heard and read that the mandate could be upheld under the government's power to tax, we reported that as well—all within two minutes."
The faux pas by the two cable outlets were reminiscent of earlier rush-to-judgment news calls, including when some outlets misinterpreted the Supreme Court's ruling in Bush vs. Gore, which handed the 2000 contested presidential election to George W. Bush.
Misperceptions of the court and how it would rule on the Affordable Care Act began long before Thursday's ruling. After oral arguments in March, many observers interpreted tough questioning of Solicitor Gen. Donald B. Verrilli Jr. as a sure sign that the law was in danger.
"This law looks like it's going to be struck down," legal analyst Jeffrey Toobin said on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong." On Thursday, Toobin, author of one book on the Supreme Court and currently writing a second, conceded that he blew it. He told the cable news audience that it was "a day for me to eat a bit of crow."
Among those who suggested the eventual outcome was the Los Angeles Times' David Savage. In a story published Monday, the veteran Supreme Court reporter wrote that "lurking in the background is a way to decide the case on tax law grounds."
The Savage story noted that one of the Obama administration arguments was that in "practical operation" the requirement to buy insurance amounted to a tax law. And Congress' power to approve taxes is clear.
"So, in the end, the justices could agree the law's required tax payments are constitutional," The Times story said, "while also making clear the government does not have broad power to mandate purchases."
While pointing primarily at her belief that the law would be upheld under the commerce clause, longtime Supreme Court journalist Linda Greenhouse also predicted after the oral arguments that the law would be upheld.
Greenhouse, who covered the court for the New York Times for three decades and now teaches at Yale, based her argument primarily on the belief that the government had wide latitude under the commerce clause. But she also noted: "In addition, or as an alternative to upholding the individual mandate as an exercise of congressional authority under the commerce clause, some may prefer to treat the individual mandate as a tax, squarely within Congress' taxing power."
In the rough questioning of Verrilli, many court watchers in the Spring missed something that Greenhouse found significant: Chief Justice Roberts' skepticism about the argument by opponents that the law was forcing commerce (in the form of health insurance purchases) on consumers. "I don't think you're addressing their main point," Roberts said to one of the lawyers, "which is that they are not creating commerce in healthcare. It's already there."
Greenhouse predicted in April, correctly, that "the chief justice will be in the majority and will write the controlling opinion."
On Thursday, Greenhouse was busily working on an essay about how the ruling may begin to define the court Roberts has now headed for seven years. She said she understands some mistakes made by the media in covering the complex workings of the institution, but not the ones made on cable TV this time.
"It's the imperative of the instant-answer that causes it and sometimes there isn't an instant answer," she said. "Sometimes you have to stop and think."
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