Noted for June 27, 2013
Does Allan H. Meltzer Look at Numbers?: Thursday Whiskey-Tango-Foxtrot-Bang-Query-Bang-Query Weblogging

Blogs Beat Cable: "Wildly Differing Assessments": Talking Heads in Studios Who Don't Know What They Are Talking About vs. Live-Blog Screen Crawl by Those Who Do

Anybody who was anybody was watching SCOTUSblog on the morning of June 28, 2012:

10:07 Amy Howe: We have health care opinion.
10:08 Amy Howe: Parsing it asap.
10:08 Amy Howe: The individual mandate survives as a tax.
10:09 Amy Howe: It's very complicated, so we're still figuring it out.
10:10 Kali: We are still here. Don't worry.
10:10 Tom: So the mandate is constitutional. Chief Justice Roberts joins the left of the Court.
10:11 Amy Howe: The Medicaid provision is limited but not invalidated.

10:13 Tom: The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.
10:15 Tom: We're still here; taking a deeper dive into the opinion. Back soon.
10:15 Tom: Link to the opinion isn't up yet.
10:15 Tom: Chief Justice Roberts' vote saved the ACA.
10:18 Amy Howe: The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
10:21 Amy Howe: On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.
10:22 Lyle: The key comment on salvaging the Medicaid expansion is this (from Roberts): "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding." (p. 55)
10:22 Amy Howe: To be clear, what we are typing here are excerpts from the opinion or paraphrasing thereof. Not predictions anymore.
10:22 Tom: 866,000 liveblog readers.
10:23 Amy Howe: The critical detail is that you cannot take away the existing Medicaid funds.
10:23 Amy Howe: The Court does not reach severability issues, having upheld the mandate 5-4.
10:24 Lyle: To readers of the Roberts opinion, a caution: It is the opinion of the Court through the top of p. 44; the balance is labeled as, and is, Roberts speaking for himself… The lesson, I think, is that the next time CNN and Fox want to cover a Supreme Court decision, they should (a) point a camera at SCOTUSblog's screen crawl, and (b) send their entire staffs home.

Much cheaper. Much more accurate.

Why oh why can't we have a better press corps?

How CNN set itself up to fail:

Tom Goldstein Publisher: We’re getting wildly differing assessments : SCOTUSblog:

The announcement of the Supreme Court’s decision largely upholding the Patient Protection and Affordable Care Act of Thursday, June 28 precipitated a genuine media drama….

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…. 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….

10:06:40 – Here we go…. John Roberts begins his oral summary of the Court’s decision in the health care case:  “I have the opinion for the Court 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….

The Court’s own technical staff prepares to load the opinion on to the Court’s website… it has complete faith in the exceptional effort it has made to ensure that the website will not fail. But it does…. In the face of the crushing demand, the Court cannot publish its own decision….

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…. 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.…

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… 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….

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….

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….

In the press room, the CNN producer is still on the conference call…. 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….

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.”… [T]he 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….”

[T]he two networks’ errors reinforce each other… neither network is paying attention to the wire services…. 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….

10:08:30 – SCOTUSblog: On the blog, readers are starting to taunt us via our comments feature:  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….” 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… he agrees…. 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….

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….

10:09 to 10:11 – Turning the network ships around….

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.”…

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.”… Blitzer hedges…. 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?”…

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…. Both CNN and Fox exposed themselves to potential failure by (a) treating the decision as a breathless “breaking news” event… (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….

[W]e showed that a specialized “vertical” – a deep team with focused expertise – can contribute to reporting…. 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…

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