We’re getting wildly differing assessments
The announcement of the Supreme Court’s decision largely upholding the Patient Protection and Affordable Care Act on Thursday, June 28 precipitated a genuine media drama. Millions tuned in to get the result in real time, and were rewarded with the spectacle of two major news networks reporting the story incorrectly. Indeed, the President himself was in limbo while his staff raced to find out whether the Court had struck down his signature policy initiative.
I have taken a deep dive into those events; my first effort at real journalism. The following is the story of what happened at the Supreme Court, SCOTUSblog, CNN, Fox News, and the White House that day between 10:06 (when the Court released the opinion) and 10:15 (when CNN reversed itself and reported that the mandate had been upheld). Everything is based on interviews with those directly involved; nothing is second hand.
Two quick notes. It’s really long – our second longest post ever, at 7000 words. (Take solace in the fact that the first version was 9650 words, for just the first two minutes.) And special thanks go out to our terrific Manager, Kali Borkoski, for her tireless work in compiling a spreadsheet that tracks most of these events (and many hundreds more that didn’t make the final cut) second-by-second.
10:00 am last Thursday – Places please
As the Marshal of the Court gavels the Courtroom of the Supreme Court to order, the Justices take the bench. Solicitor General Don Verrilli – who argued the health care case for the federal government – sits at the counsel table just to the right of the lectern, only a few feet away. Verrilli is poker-faced, but he carries the weight of the world on his shoulders. Charged with defending the Act, he faced relentless and withering questioning from the Court’s conservative justices during oral argument, and then had his performance criticized by hundreds of armchair advocates.
Aside from his personal investment in the case, and his loyalty to the President, Verrilli deeply believes that the law is important to secure health insurance coverage for millions of Americans who otherwise cannot afford it, and he knows that the next few minutes could determine their fate.
The Courtroom is packed, and the atmosphere is tense with anticipation. The press gallery on the Courtroom’s left is full. Nina Totenberg of NPR and Adam Liptak of The New York Times are there. Recently retired Justice John Paul Stevens and Bush Administration lawyer David Addington are among the special guests in the box to the right reserved for the Justices’ guests.
The Marshal’s cry of “Oyez, Oyez” and all the proceedings that follow are piped down to the main press room (Room G42), which is a floor below, in the building’s northwest corner. Reporters and producers are crowded around desks waiting for hard copies of the decision to be released. Other reporters are on the Courthouse steps, standing by to announce the ruling as soon as they hear from colleagues in the press room or receive copies from runners.
CNN’s strategy for covering the decision is to use its established team, comprising a producer (who will get the opinion in G42) and their Supreme Court correspondent, who is waiting on the Courthouse steps. Both are experienced and very well prepared; they have done dozens of interviews about the case. Everything is coordinated through the network’s central control center in Atlanta, permitting the CNN web and social media teams to respond to the decision almost instantaneously.
Fox has beefed up its team by flying in to Washington an experienced producer who previously worked extensively on the network’s Supreme Court coverage. After getting the opinion, the producer will talk to the Fox control room through a conference call. The network’s reporter is out on the steps, bridged into the call over her earpiece.
The Supreme Court will not grant SCOTUSblog a press credential. Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston. There are six other members of our team nearby, running nine computers on eight separate Internet connections.
Our problem at the moment is that someone is trying to crash the blog. At 10:00 exactly, hackers are launching a “distributed denial of service” attack with 1,000 page views per second to try and bring us down. It does not work; our tremendous Deputy Manager Max Mallory has spent months augmenting our capacity, and the hackers give up after a few minutes. We do not know how many readers are on the Live Blog for the opinion announcement; our data at the time indicates it is rapidly approaching one million. During the day, we will receive 5.3 million hits (more than ten times our all-time daily high) from 1.7 million unique readers.
The Courtroom audio is also piped into the Solicitor General’s office at the Court. There, an Administration lawyer is waiting, Blackberry in hand. The White House, fearful that our Live Blog will crash under the load and perhaps unaware that electronic devices are not allowed in that office, has arranged for the lawyer to listen to the proceedings and send email updates every thirty seconds.
At the White House, Barack Obama is in the Oval Office receiving the Presidential Daily Briefing. His principal advisors on the health care case are not with him. White House Counsel Kathy Ruemmler, Secretary of Health and Human Services Kathleen Sebelius, Valerie Jarrett, and other senior advisors are in Ruemmler’s office on the second floor of the White House. The communications staff is in Jay Carney’s office on the first floor, finishing their daily staff meeting.
10:06:40 – Here we go
The Court has finished announcing the rulings in the two other remaining cases for the Term. From his center seat, Chief Justice John Roberts begins his oral summary of the Court’s decision in the health care case: “I have the announcement in . . . .”
Downstairs in G42, the Court’s press room staff opens a huge white box and begins handing out the decision. Every reporter grabs a copy and races out.
Bloomberg – which has cubicle closest to G42 – is the first to publish (10:06:46) that the decision has been issued. Joining veteran reporter Greg Stohr on the Bloomberg team are both Laurie Asseo (who previously covered the Court for years for AP) and Bob Drummond (Stohr’s predecessor). Stohr and Drummond begin reviewing the substance of the opinion.
At their cubicles, the CNN and Fox producers pick up phones connected to their control rooms and reporters, say the decision is out, and begin urgently reading the syllabus – the summary of the ruling published at the front. The networks are treating the decision as breaking news, and alert their anchors to be ready.
Upstairs, in the Solicitor General’s office at the Court, the Administration lawyer types out his first update.
The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.
But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever. It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.
10:07:20 – First reactions
Inside G42, the press room staff hear the Chief Justice say over the speakers that the Court will have to confront the government’s arguments under both the commerce power and also the tax power. But none of the reporters hear him; they are all gone.
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%.”
The Bloomberg team finishes its review, having read the Commerce Clause holding and then turned the page to see that the Court accepted the government’s alternative argument that the individual mandate is constitutional under Congress’s tax power. At 10:07:32 – 52 seconds after the Chief Justice began speaking – Bloomberg issues an alert: “OBAMA’S HEALTH-CARE OVERHAUL UPHELD BY U.S.SUPREME COURT.” Bloomberg is first, and it is right.
Because the Act is important to stock prices, stock traders will have a very rare opportunity to arbitrage the conflicting media reports and the fact that no one outside the Court has the opinion. The market had been betting against the mandate surviving. That would have been bad for hospitals (which would lose revenues) and good for many insurers (which could be more selective in their customers). Now hospital stock prices begin to spike: Hospital Corp. of America, the nation’s largest private hospital chain, quickly rises from $27.38 to $29.35. Many insurance stocks start to tumble: United Health Group falls from $58.69 to $55.73.
Lyle Denniston has walked out of the press area and now reaches our team, reading one copy of the opinion and handing me the other. I type into the Live Blog that we have the opinion.
We are going to take this slow, so we don’t make a mistake. The day before, I told our team that I did not want us to get it wrong if “the opinion does something really weird, with one paragraph saying that the government loses under the Commerce Clause, but then” upholds it on another ground. The morning of the decision, Mark Sherman of the Associated Press (justifiably) teased me about a Washington Post article in which I had (stupidly) said that I expected us to be faster than AP. I told him: “We’re not racing you”; in a decision this long and complicated, “no one will remember if you move this story first or we do,” but the “only thing anyone will ever remember is if we f*** it up.”
Every other decision day of the Term, our Live Blog set-up is simple. Lyle dials into a conference call from his cubicle in the pressroom and tells our editor Amy Howe what has happened. Today, our entire team will work together in person, including Lyle, who is the most experienced member of the press corps, having covered the Court for more than five decades, and who has written about the case with incredible depth; and four lawyers who have collectively argued thirty-four Supreme Court cases and taught Supreme Court litigation at Harvard and Stanford for more than twenty years.
And nothing will to go onto the Live Blog about the Court’s ruling until I say I agree with it. If we make a mistake, I will be personally responsible.
10:07:50 – First reports
Though our entire team (including Lyle) is now physically together, I keep our conference call going. I have invited the major news organizations and the White House to listen in, so I can talk them through what we know in real time. Or at least that is my plan. NBC, CBS, ABC, NPR, The New York Times, the Wall Street Journal, and the Los Angeles Times are all on. But I have forgotten two: CNN and Fox News.
Within a few seconds of getting the opinion, I realize from reading the syllabus – and announce into the conference call – that the government has lost the Commerce Clause argument, but that there is much more going on that is going to require careful study. I say I am muting the line, so those on the line won’t overreact, and so I don’t feel the pressure of them hanging on what I’m saying. On the Live Blog, Amy tells readers that we are parsing the opinion ASAP.
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.
The network’s traditional news broadcasting, which takes only a few seconds to get rolling, correctly reflects the uncertain state of affairs. In her first report (10:07:20), the reporter says: “This is our first reading . . . . We’re still going through the opinion . . . but I want to bring in the breaking news that . . . according to [our] producer . . . is not a valid exercise . . . the individual mandate is not a valid exercise of the commerce clause.” She continues, “So it appears as if the Supreme Court Justices have struck down the individual mandate, the centerpiece of the health care legislation. I’m going to hop back on this phone to try to get more information and bring it to you, Wolf.” (From 00:01- 00:23 in the video)
Blitzer goes next, and he hedges too: “Wow that’s a dramatic development if in fact the Supreme Court has ruled that the individual mandate is in fact unconstitutional. That would be history unfolding right now.” Blitzer seemingly is told in his earpiece that the decision may be unclear, and begins to walk their report further back: “We’re going to get a lot more information. This is just the initial headline that we’re getting from inside the Supreme Court to our own [reporter on the steps].”(At 00:31-0045 in the video.)
But the network’s other coverage drowns out those cautionary words. The control room quickly (at 10:07:44) posts an unequivocal banner: “SUPREME CT. KILLS INDIVIDUAL MANDATE.” Ten seconds later, they replace it with “Individual Mandate Struck Down.” (Which was also the banner on the website.)
Fox is catching up fast. At 10:07:39 – less than a minute after the Chief Justice began speaking – it displays a banner: “Supreme Court finds health care individual mandate unconstitutional.”
To encourage the free flow of information and debate, the Fox producer leaves open the microphones of its guest analysts – Karl Rove and Senior Legal Analyst Andrew Napolitano. Over the air, as the banner goes up, the audience hears, “Oh boy” and an audible “whew….” (At 00:00 and 00:04 in the video.)
Fox has also assigned one of its most experienced and respected anchors, Bill Hemmer, to lead its coverage. Having been given unqualified information, he now says decisively (at 10:07:50), “The individual mandate has been ruled unconstitutional.” (From 00:04- 00:09 in the video).
CNN and Fox are both confident in their reporting. Television executives in CNN control rooms glance up at monitors carrying their competitors to see Fox’s banner, which confirms that the mandate has been struck down. The same thing happens in reverse at Fox News in Washington. In the critical early moments, the two networks’ errors reinforce each other.
Unfortunately, neither network is paying attention to the wire services. In addition to Bloomberg’s early report that the mandate had been upheld, the other three principal wires that cover the Court – Reuters, AP, and Dow Jones – have issued similar alerts in rapid succession. When AP’s Mark Sherman reports by phone that the mandate is constitutional, his editors look up and see the first CNN banner reporting the opposite. But they trust their reporter, and move the story. The bureau breaks into spontaneous cheers.
Meanwhile, word from CNN’s hyper-efficient social media effort is spreading like wildfire. BuzzFeed’s political reporter Zeke Miller (16,781 followers) retweets the Boston Globe’s Matt Viser (3,601 followers) who retweets from the producer of the Situation Room: “CNN BREAKING — THE MANDATE HAS BEEN STRUCK DOWN.”
CNN is also running a live blog. The entries are later edited (leaving the impossible time stamp “Updated at 10:06”) to delete the words “struck down” and insert “upheld” to preserve for history the following bizarrely contradictory entry: “In a landmark decision that will impact that nation for decades, the Supreme Court on Thursday upheld a key provision of president Barak Obama’s health care law, ruling that requiring people to have health insurance violates the Constitution.”
By contrast, Fox has not fully integrated its electronic media into its broadcast reporting. Its live blog reports, “Supreme Court finds individual mandate unconstitutional.” And the network’s chief White House correspondent and Bret Baier tweet to their followers that the mandate has been struck down. But the Fox web and social media teams otherwise lag behind the television coverage. There are no network-wide tweets or breaking news emails. Ironically, that inefficiency saves the network from more embarrassment.
Upstairs in the Courtroom, Solicitor General Verrilli listens to the Chief Justice decisively reject the government’s Commerce Clause theory. For now, Verrilli is almost certain they have lost the case. He sits stone-faced, but he feels the ache of an imminent loss – mostly for those who would have had better access to health care under the law. It will be six long minutes more into Roberts’ bench announcement before Verrilli will get to feel the surge of emotion – beyond elation – from hearing that the Court has upheld the mandate under Congress’s taxing power.
10:08:00 – First reactions
At the White House, the President of the United States has stepped out of his daily briefing into an adjacent room where he can see CNN and Fox News. He is about to learn the fate of a law that he believes is essential to the health care of millions of Americans, for which the Administration has sacrificed many other priorities, and which could be essential to his re-election. As he sees the banners flash across the bottom of the screens, it looks very, very bad.
In Press Secretary Jay Carney’s office, the communications team has three principal sources of information: monitors showing the cable networks; our conference call on speakerphone; and our Live Blog on the computer.
The announcements on CNN and Fox News in Carney’s office have been the first news of the decision, and both report that the mandate had been invalidated. Although the wire services have already reported the decision correctly, the communications team is not aware of those reports.
The staff goes quiet, but it does not lose hope. On the conference call, I had said that the Administration had lost the Commerce Clause argument, but that there was more to the decision and that it was complicated. So they continue to listen to the call, and to watch the Live Blog. Waiting for further word, they do not send out an email even to the working group of the communications and Counsel’s Office teams. And they do not move to tell the President, unaware that he is watching the incorrect television reports.
The experience is very different and much less anxious for the White House lawyers and the Administration’s policy team upstairs in Kathy Ruemmler’s office. There are no televisions in that office, so they are totally unaware of the reports seen by the communications team and the President that the mandate had been struck down. Instead, everyone is staring at Ruemmler’s computer and Jarrett’s iPad, which are on our Live Blog.
Elsewhere, others are picking up the story from CNN and Fox. Back at the Court, the Huffington Post’s reporter, Mike Sacks, has not yet filed a story on the ruling. Their social media team does not wait, however. Taking the news from CNN without attribution, it tweets – “BREAKING: Individual mandate has been ruled unconstitutional by Supreme Court.”
A number of Live Blog readers comment that “NPR” has reported that the mandate has been struck down. But that report actually comes from the syndicated show of Diane Rehm, which is heard in Washington and on many NPR stations around the country. Rehm has said without attribution that “we have just learned that the Supreme Court has struck down the individual mandate on the Affordable Health Care Act.” (A few minutes later, Susan Page will correct that report on the show, citing the Live Blog.) NPR itself (which is live on many other stations around the country, particularly in the West) is purposely not saying anything about the result of the decision at the time, given the conflicting reports. (The NPR news division will hold off until 10:16, then direct its hosts by email “OKAY TO BROADCAST: Per Scotus Blog: entire Affordable Care Act is upheld, with some restrictions on the expansion of Medicaid.” [Updated: At 10:10, NPR's News Blog reports the decision correctly, crediting the Live Blog.])
Across the street from the Supreme Court, Representative Jean Schmidt, Republican of Ohio, famously hears over her cell phone that the mandate has been struck down.
10:08:30 – SCOTUSblog
On the blog, readers are starting to taunt us via our comments feature (there ultimately will be 13,500 comments over the course of the Live Blog): Guest, “CNN was first, guys…”; Bill, “Fox is already announcing decision”; yolanda, “TV just announced the decision beat you to it”; Guest, “Fox News beats soctusblog….”
It takes me almost one minute exactly to analyze the decision. After about twenty seconds, I am almost certain that the government has won under the tax power. But I worry the opinion itself would have important nuance or qualification. So I read all the first sentences of each paragraph in the critical part of the opinion announcing the tax holding. It is clear that although the Court has rejected the government’s Commerce Clause argument, it has upheld the mandate without qualification.
I turn to Lyle – who has been focusing on the Commerce Clause section of the syllabus on his copy, but also skimmed the tax power discussion in the syllabus – and say, “They win under the taxing power.” Lyle responds, “Yes.” Kevin Russell has gotten a third copy of the opinion from an NBC runner; he agrees. (Lyle then turns immediately to writing the overwhelming majority of our team’s analysis of the case, as he has throughout.)
I dictate to Amy: She repeats it to me to confirm, and publishes the update announcing the decision to our readers.
I unmute the conference call line and repeat what we have just posted. I am confident that we have it right. And I feel relieved: The previous day I had published a prediction that the individual mandate will survive, in an opinion by the Chief Justice. During the first hour or so of the morning’s Live Blog, before the Court released its opinion, Amy had joked that if anyone was looking for me, I was out on my limb.
Opponents of the Act, having seen the television reports, are incredulous and vocal in their responses: Guest, “WHAT???”; Guest, “no reports says its gone!”; Republican, “OMFG”; Tim, “No it isn’t”; Ryan, “Bullshit”; Guest, “apparently you have it wrong”; Sarika, “IT IS NOT SURVIVING AS A TAX!!”; Fred, “It sounds like you guys are spinning this thing. Knock it off and read the law!”
Others have seen enough to know that they need another news source: Guest, “I’m outta here. Turning on TV”; David, “I won’t be back to this site.”
And some indicate we are simply too late, and that Fox and CNN’s earlier reports are res judicata on other journalists: John, “They already struck it down”; Guest, “The mandate is GONE.”
The major theme of the comments beyond the conflict between our Live Blog and the television reports is a request for a link to the opinion itself. But it still will not be publicly available for almost half an hour.
10:08:45 – Uncertainty in the White House
When we announce the decision, years of effort, followed by months of uncertainty after the oral argument, are vindicated for the White House. The team in the Counsel’s office is elated. They quickly agree that Ruemmler will deliver the good news to the President. She hurries to the Oval Office, a floor below.
On the way, she passes two White House lawyers outside her office, who are in communication with the Administration lawyer at the Court and watching the Live Blog. (There is a television in that room, but it is tuned to MSNBC, and Pete Williams has not yet begun his report.) One composes and sends a one-word email to the large communications and counsel working group: “Victory.”
In quick succession, the White House communications team sees our Live Blog, hears our conference call, and receives the legal team’s brief “Victory” email (which it does not know was sourced to the blog as well). A member of the communications team responds to the email to flag the conflicting CNN and Fox reports, and the uncertainty about the ruling.
This is the first the lawyers and policy teams know of the reporting that the mandate has been declared unconstitutional. And Ruemmler is on the way to tell the President. Jarrett immediately dispatches the White House lawyers to catch Ruemmler first, but it is unnecessary – she sees the CNN report on a television and stops herself.
On the other side of the case, the plaintiffs’ lawyers – Paul Clement, who is in Florida, and attorneys from the Jones Day firm – are watching the Live Blog. They do not have a television on, so they are unaware of the uncertainty. None has any doubt that the blog is correct; each understood that despite an extraordinary effort, they have lost.
10:09 to 10:11 – Turning the network ships around
Fox has named Megyn Kelly to co-anchor its coverage; having previously served as the network’s Supreme Court correspondent, she knows the Court very well. Kelly is carefully watching a computer, tuned in to the Live Blog.
When the blog reports that the mandate has been upheld, Kelly grabs the attention of anchor Bill Hemmer, who immediately (at 10:08:49) interjects over his still-open mic in an effort to interrupt (at 1:09 in the video) the Fox reporter on the steps, who is just now saying “that means the mandate is gone.”
Hemmer flags that their reports are coming in the “fog of law” and hands it off to Kelly, who says (at 10:09:02; 01:21- 02:08 in the video): “Wait, we’re getting conflicting information, we’re getting conflicting information. If you follow SCOTUSblog.com, which covers the high Court, they say that despite what [our reporter] just read, the individual mandate is surviving as a tax.”
The Fox producer in charge of the event – the network’s Vice President for News, Jay Wallace – trusts Kelly completely, and he knows the blog, because a few hours earlier Kelly had asked him to intercede in a dispute between her own Fox show and another over which one I would appear on after the decision. So the producer allows the network to switch gears on the fly. But just like CNN, Fox does not immediately remove or qualify the banner at the bottom of its screen. Kelly interjects again, saying on the air (at 10:10:41): “We may need to update our lower third.” (At 01:33 in this video.)
Observing the controversy and taking care not to make an error, The New York Times (whose own reporter Adam Liptak is still in the Courtroom) puts up a simple banner (at 10:09): “Supreme Court Rules on Health Care Law.”
At 10:10:20, veteran CBS correspondent Jan Crawford – who has written a well-received book on the Court who had spent hundreds of hours covering the case – correctly reports on the ruling, just a few seconds before NBC’s Pete Williams (who had absorbed the decision in more detail during the walk from the press room to his camera stand).
Back inside the Court, the CNN producer has recognized the significance of the tax holding, but is not initially definitive about the ruling, saying that the Court might be “splitting” the result. But the control room advises him that SCOTUSblog is reporting that the Court had upheld the mandate as a tax. Asked to confirm that report, the producer does.
CNN is slow to tell its viewers that there is a significant problem with its first reports. In under three minutes (at 10:11:03), it removes its erroneous banner and replaces it (at 10:11:42) with a more neutral one: “Supreme Court Rules on Obamacare.”
The on-air team also begins walking back the initial report. Blitzer hedges even more – saying (at 10:11:22) that the result would be dramatic “if that’s the final word” but “it could be a little more complicated” and referring ambiguously to “this additional report we’re getting from inside the Supreme Court.” (From 04:04 – 04:22 in the video.)
John King follows (at 10:11:34), saying that “the key point is the details,” but (unable to make any clear representations because of the dearth of information), he muddies the report by suggesting (incorrectly) that the confusion is over whether “if they rule the mandate part unconstitutional, if the federal government has that authority, what about the other provisions?” King then (at 10:11:51; 04:25 in the video) raises the question of the premise of the network’s report – “if the court has struck down the individual mandate.”
10:11 to 10:13 – Back at the White House
Given the conflict between the Live Blog and the television reports, the communications and legal teams are struggling to figure out whether or not the Court has upheld the mandate. Before going to see the President, they also need complete information on what the Court had done with the separate important challenge to the Act’s Medicaid expansion.
But the White House is at a tremendous disadvantage. The Court’s website is not displaying the opinion, and so nobody in the White House can get a copy. And the email updates from the lawyer at the Court are no help, because the Chief is still talking about how the Justices have rejected the Commerce Clause theory.
Confirmation comes between 10:11 and 10:13. Based on Kevin Russell’s review of the decision, we post on the result of the Medicaid ruling: “The Medicaid provision is limited but not invalidated.” I then dictate “[t]he bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”
Between those two entries, a White House lawyer emails me a two-word question: “tax power?” I write back “Yes.” A lawyer in the Solicitor General’s office then finally gets a physical copy of the opinion, and confirms our report.
The team concludes at 10:13 – roughly five-and-a-half minutes after the first CNN report – that it has the information it needs to tell the President that they had in fact won. Ruemmler walks through the first-floor halls, and gives him two thumbs up. He wants to call Verrilli as soon as possible.
10:13 to 10:15 – CNN coming around
CNN is now alone in telling its viewers that the mandate may have been struck down. Blitzer says (at 10:12:09) that “there’s some confusion out there, conflicting reports coming from inside the Supreme Court,” so everyone should “hold off drawing any final conclusions.” Then he says (at 10:12:44; 05:05 in the video) that the mandate may “potentially, potentially” be upheld, and referring to “conflicting information.” Blitzer followed at 10:13:27, saying that those “watching Twitter” will see the same confusion because “we’re getting wildly differing assessments” about the decision. (At 06:10 in the video.)
But CNN’s electronic media teams do not promptly change the website, or send follow-up emails or tweets indicating any uncertainty. As of 10:13, the CNN website still has a Breaking News banner indicating that the Court “has struck down” the mandate; it is then replaced later that minute with a more neutral one which indicates that “Court rules on Obamacare.”
At 10:14:00, CNN’s on-air team reports – still somewhat elliptically – that “the individual mandate may be upheld under a narrow reading of the constitution, not under the commerce clause. We’re talking about the taxing clause, Wolf, very important distinction here.” (From 07:00 – 07:14 in the video.) And at 10:15:29, it reports (now making a different error, given that the Court has struck down part of the Medicaid provision), that “the entire law has been upheld.” (At 08:15 in the video.) The control room then inserts a banner stating that the mandate “May Be Upheld.”
None of CNN’s hedging undoes the firm impression left in the minds of its viewers – who have seen the initial banners – that CNN believes that the mandate has been invalidated. On our Live Blog, several dozen readers continue to comment that CNN is reporting that the mandate had been invalidated; not one indicates that CNN has any uncertainty until – to its credit – it publishes a formal correction at 10:19. (Fox never does.)
The Aftermath – Lessons Learned
I am not a media critic. I’m not even a journalist. But here are my “takeaways” from that morning.
Everyone involved in the process worked diligently to distribute information quickly and correctly. They had very knowledgeable teams; among others, the CNN producer at the Court is widely recognized as among the most devoted and hardest working people in their bureau. But with the benefit of perfect hindsight, several things could have been done better.
The Court went to significant additional efforts to make sure that the health care opinion would be available quickly on its website. But it should have had a better back-up plan, including distributing the opinion immediately by email to reporters and to the government much more quickly than it did (sending one at 10:29). The fact that the Court initially released the opinion only in physical form to the media at the Courthouse made it much more difficult for others to resolve the conflicting media reports. The White House could not review the decision to tell the President what had happened. And many millions of dollars were gained and lost in the markets based on which media reports traders and investors happened to be watching.
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 at 01:25) “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.”
Crawford quickly closed her first report from the steps by saying the Court “may have” upheld the mandate. After a break in which she read more and consulted with the attorney, she correctly reported the ruling, well before CNN and Fox clearly corrected themselves.
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 (and the mandate won’t take effect until 2014), 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 they would take the time to read the decision more carefully before reporting (NBC), or augmented their team with an expert (CBS). In a novel twist, C-SPAN had simply put the Live Blog on television.
CNN in particular should have told its viewers and readers more quickly about its own serious doubts about its initial reporting. By 10:12 at the latest, CNN was alone in seriously suggesting that the mandate might have been invalidated. The network’s on-air team responsibly hedged throughout the entire process. But by 10:14, they should have been told not to claim that there were wildly conflicting reports about whether the mandate had been invalidated – the only reports on its side were its own, or echoes of its first reports bouncing around Twitter and blogs.
Ironically, CNN reacted too slowly in part to avoid a second error. The network did not want to be in the position of reporting that the mandate had been struck down, then reporting that it was upheld, then reverting to its initial report. (That had happened to the media in the 2000 presidential election, and it had been a debacle.) CNN gravitated to an intermediate position of uncertainty on the air, which of course was not decisive enough to correct viewers’ initial impressions.
CNN had also converted itself into an integrated circuit in which its electronic media teams were tied directly into the broadcast operation. But not anticipating the possibility of an error or confusion, its first web, electronic, and Twitter reports did not hedge. And the network did not have a clear plan to reverse the circuit on the electronic-media side and tell readers that its initial reports may have been wrong.
It is difficult to say whether Fox should have instructed its hosts and reporter to hedge initially. The network’s experienced producer with the opinion stated with “100%” certainty that the mandate had been struck down. However, by that time the wire services were reporting exactly the opposite, and so I think the unequivocal tone of Fox’s first reports conveyed more certainty than was reasonable.
But Fox was saved from further embarrassment by a combination of very good work and simple luck. Although CNN and Fox both told their viewers about “conflicting” information, Fox’s broadcast was more decisive – only because of Kelly’s decision to monitor the Live Blog, and her willingness to state on open air in real time that “despite” the network’s report seconds before from the Court, another specific source was reporting the opposite. And because Fox had not directly integrated its web and social media teams, the network had much less to pull back than did CNN.
The two networks’ responses to how Thursday morning unfolded are also a study in contrasts. Both got identical incorrect information from their producers inside the Court, who made mistakes despite their best efforts. The reaction in some quarters at CNN has been apoplectic. But Fox – which like CNN is taking steps to avoid making a similar initial mistake in the future – generally views Thursday morning’s “transparent” broadcasting of information as it developed in real time as exactly how its reporting should function.
At the White House, there is more to the story than the spin that the President believed the Administration had lost the case only for a very short period of time. In fact, for at least a few minutes he thought the opposite and for more than five minutes, he had substantially worse information than many Americans.
That remarkable anomaly arose from the fact that the White House staff wanted to be sure to get him only correct information. With no way to get the opinion themselves, the staff performed incredibly well. Faced with conflicting reports from otherwise reliable sources, the communications and legal teams remained calm, resolved the uncertainty, and delivered accurate information to the President as soon as possible.
The fact that it took a little longer than the White House has conveyed probably just reflects that no one in the building was standing around with a stopwatch. The chronology above is compiled from innumerable emails, tweets, and video clips.
As for the blog, 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. We hope you’ll join us over the summer and next Term for more excitement. We promise to never stop working to improve this experience for you. Thanks for reading.
Recommended Citation: Tom Goldstein, We’re getting wildly differing assessments, SCOTUSblog (Jul. 7, 2012, 10:04 PM), http://www.scotusblog.com/2012/07/were-getting-wildly-differing-assessments/