Today’s frenzied (social) media reaction to the Supreme Court’s decision on President Obama’s healthcare reform was, as many journalists have remarked, a good lesson on why it’s not a good idea to tweet before the facts are clear.
CNN was apparently the first news outlet to say something about the decision after it was announced, but what it said—“Mandate Struck Down”—was the exact opposite of what actually happened today. (Poynter has a good screenshot collection of the embarrassment.)
The best reaction to CNN’s ugly faux pas was probably this:
I’m not sure that ‘MAKE CNN YOUR HOMEPAGE’ should appear just below the headline ‘CORRECTION: SUPREME COURT BACKS HEALTH CARE LAW’
— BGrueskin (@BGrueskin) June 28, 2012
Yep, a tweet. Twitter is, at its best, a mix of entertaining one-liners and useful links to point followers toward more in-depth, nuanced information. And if anything merits a lengthy wordcount, it’s the analysis of justices’ lengthy decisions on the Affordable Care Act.
Hopefully, CNN’s mistake of pushing “send” without thinking is a wakeup call. The winners of the breaking news rat race are the ones who get it quickly, correctly, and smartly.
4 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
Syllabus
4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.
I would like to know exactly how CNN "got it wrong."
I have noted some sloppy work in the legal opinions at the network websites, at ABC News, but I do not want to assume anything here.
The way the syllabus is set out seems to be clear, with cross-referencing.
Given that the syllabus is only six pages, it should have been possible to split it between six readers and get a precise fix on the content rapidly.
However, there may have been other factors.
It is fine to say that "CNN got it wrong," but that does not really get us anywhere.
An interesting control text is "Imagine" by Jonah Lehrer, especially on working memory.
I can't say that the Supreme Court has communicated its material in a clumsy way, unless we were to think in terms of quite different systems (which may well be appropriate someday), where the Supreme Court would initiate the Twitter work.
We still don't have the goods not only because we do not know precisely what went wrong, but also because we don't know about limitations in education and practice for journalists that make such errors likely.
From the oral perspective, if anyone with any legal skills listened in and made an error of that magnitude, that person should be fired.
But I do not know what you would have to say to get fired from being a legal commentator. Apparently it is semi-impossible.
#1 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 01:34 PM
Opinion of Roberts, CJ, page 27:
--The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”--
The Poynter coverage on this is superior. The question that I have is whether Toobin could reasonably have made the assumption he did.
The CNN Toobin explanation of the error was clumsily handled, broken, and inconclusive. Why?
#2 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 02:17 PM
Jeffrey Toobin Explains Himself And CNN's Bad Day Continues
Fox News and MSNBC must be loving this. posted Jun 28, 2012 11:22am EDT
Dorsey Shaw BuzzFeed Staff
#3 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 02:23 PM
I really cannot understand how anyone could misunderstand the logic here. At the head of the discussion on the mandate we have a clear statement about the government's "first argument:"
16
NATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. SEBELIUS
Opinion of ROBERTS, C. J.
A The Government’s first argument is that the individual mandate is a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. According to the Government, the health care market is characterized...
#4 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 02:42 PM
YouTube: Toobin: 'This Law Looks Like It's Going To Be Struck Down'
When you have already made up your mind, you hear what you expect to hear.
#5 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 03:00 PM
Toobin: 'This Law Looks Like It's Going To Be Struck Down' (YouTube).
Toobin's producer should have realized that he had already made up his mind.
He was leaning so far in one direction that he was likely to mishear the obvious.
The follow up explanation on CNN was pathetic. Really.
Journalism schools should take steps to deal with these issues.
One, a reporter can't stand by helplessly when a legal expert is in such a fix. He has to be able to ask some serious questions about how the error happened.
Two, it is hard for journalism schools to accept the realities of language. We have moved far beyond the style guide. The best introduction to information cohesion is in chapter 10 of the COBUILD English Grammar. This grammar should be official for journalism schools.
I have yet to see a comprehensive journalist's analysis of Jonah Lehrer's "Imagine," despite the chatter about his habits of composition. It is essential to do books.
A good one for training in cohesion is "The Turn of the Screw" by Henry James. It is short, but you have to be alert to integrate the information and create a sound interpretation.
Toobin could only have misheard the opinion if he had already made up his mind.
#6 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 03:42 PM
Extremely weird. So we still do not know how the CNN error happened. The idea that it looked for all the world as if the majority was going to strike down the law is nonsense. All you had to do was pay attention to the most elementary pointers to the logic, as explained above.
http://www.politico.com/blogs/media/2012/06/cnns-jeffrey-toobin-i-got-it-wrong-127605.html
As for CNN's initial bungling of the ruling — the network initially
reported that the mandate had been overturned — Toobin said he had no
idea how that had come to pass, as he was in the courthouse for almost
an hour while the justices read their decisions.
"I was in the courtroom, I wasn't involved," he said. "I didn't leave
the courtroom until almost 11, and obviously we weren't allowed to
have electronics."
Politico: Jeff Toobin explains how CNN got it wrong
My colleague Mackenzie Weinger has CNN legal analyst Jeffrey Toobin's explanation of why CNN initially reported that the individual mandate had been struck down.
TOOBIN: ...
And he started reading and the first issue he addressed was the commerce clause — does Congress have the authority under the commerce clause to enact the individual mandate, the requirement that all Americans have insurance. And he basically adopted in its entirety the argument of the challengers to the law. He said this was outside the federal government’s power … So it looked to all the world, for all the world like the chief justice for the majority was going to strike down the law...
#7 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 07:01 PM
I would like to know if the Syllabus was released to the media with the ruling as soon as the reading began.
If so, the errors are inexplicable because it says right on page 4 of the short syllabus that the individual mandate may be upheld.
This is nicely cross-referenced.
Not only did Toobin prime CNN reporters to misread the opinion, he continues (on John King's USA Blog) to make pointless statements about how stunning the ruling was. What happened to his ears during the discussion of tax?
4 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
Syllabus
4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33– 44.
#8 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 09:00 PM
The opinion read by the C.J. could not be clearer. He signalled that he would turn to the merits, then he said specifically that we may "proceed to the merits."
On page 15:
--The Government advances two theories for the proposition that
Congress had constitutional authority to enact the individual mandate.
First, the Government argues that Congress had the power to enact the
mandate under the Commerce Clause. Under that theory, Congress may
order individuals to buy health insurance because the failure to do so
affects interstate commerce, and could undercut the Affordable Care
Act’s other reforms. Second, the Government argues that if the
commerce power does not support the mandate, we should nonetheless
uphold it as an exercise of Congress’s power to tax. According to the
Government, even if Congress lacks the power to direct individuals to
buy insurance, the only effect of the individual mandate is to raise
taxes on those who do not do so, and thus the law may be upheld as a
tax.--
Not until page 27: The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
I do not see how the Chief Justice could have made the structure of his opinion more transparent. By introducing all his occult factors, Toobin is making the law sound far more mysterious than it is.
#9 Posted by Clayton Burns, CJR on Thu 28 Jun 2012 at 09:36 PM
Myself and two colleagues created a Storify to track the mistake and readers' reactions. You can see it at the link below. It's a great way to see how the story unfolded.
http://storify.com/kelseyreid/cnn-fox-time-incorrectly-break-healthcare-ruling/
#10 Posted by Kelsey Reid, CJR on Fri 29 Jun 2012 at 10:13 AM
Kelsey Reid: I found this very useful. You might continuity edit it to see if everything clicks back easily (I am using an ASUS 1015PN).
At least, so far as I am aware, going through your Storify is not going to freeze my computer--a problem with Romenesko and New Yorker blogs.
What I can't see is why Toobin was so totally out of position. If CNN's reporters had what at least one of them thought was a confusing opinion, why wasn't Toobin at her side to provide assistance? What was the role of the Syllabus?
We need a sociological report on all of the senior legal analysts for the major media outlets.
What strikes me as blindingly obvious is that journalism schools need an admissions curriculum. I recommend Lawson's "The Brotherhoods," "A Civil Action," "The Turn of the Screw," and the COBUILD English Grammar.
CNN's misadventures should form a case study that would be mandatory in first term in journalism.
#11 Posted by Clayton Burns, CJR on Fri 29 Jun 2012 at 12:38 PM