CNN, Fox fumble the call, capping months of media misperception

A momentous Supreme Court decision collided with a breathless, speed-obsessed media culture Thursday, resulting in botched cable TV coverage of the ruling on President Obama’s healthcare law, a boast by a wire service of beating the competition by mere seconds and an understandable round of public mockery over the entire spectacle.

CNN and Fox News mistakenly reported that the Affordable Care Act had been overturned by the high court before both quickly correcting themselves, albeit not quickly enough to ward off a round of derision.

On Twitter, someone launched the hash tag "#CNNHeadlines” and wags had at the self-proclaimed “most trusted name in news.” Examples: “Identity of Luke Skywalker’s Father Remains Mystery.” And “Record cold temps expected across U.S. this weekend.”

An image of President Obama appearing to hold up the mistaken CNN headline — like President Truman famously showing off the Chicago Tribune’s mistaken “Dewey Defeats Truman” headline in 1948 — rocketed around email inboxes.

Both cable outlets released statements about the misstep. CNN expressed regrets for moving too hastily. Michael Clemente, executive vice president for news at Fox, did not apologize, saying the outlet’s report merely followed the words of Chief Justice John G. Roberts Jr. as he announced his decision from the bench. Roberts first declared that the healthcare law would not be upheld under the commerce clause of the Constitution, before saying it passed constitutional muster under Congress’ taxing authority.

In a measure of the fevered competition to report the ruling first, a Bloomberg News representative emailed a prominent media blogger noting that the wire service reported the law’s affirmation at 10:07:31 Eastern. The Associated Press, the P.R. missive continued, had the news at 10:07:55 — a full 24 seconds later.

Coverage of the court’s methods and politics can be extremely complex — a challenge multiplied Thursday as reporters tried to instantaneously interpret the 193-page healthcare ruling.

“What you have here is a deliberative institution covered by an increasingly non-deliberative news media culture,” said Tom Rosenstiel, director of the Pew Center’s Project for Excellence in Journalism.

Misperceptions of the court and how it viewed the Affordable Care Act began before Thursday’s ruling. After oral arguments in March, many observers interpreted tough questioning of Solicitor Gen. Donald B. Verrilli Jr., the government’s top lawyer, as a sign that the law was in peril.

“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 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 in advance was the Los Angeles Times’ David G. Savage. In a story Monday, the veteran Supreme Court reporter wrote, “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.”

Longtime Supreme Court journalist Linda Greenhouse 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 is now a scholar at Yale, based her reasoning primarily on the commerce clause. But she also noted: “In addition ... some may prefer to treat the individual mandate as a tax, squarely within Congress’ taxing power.”

“It’s the imperative of the instant-answer that causes it and sometimes there isn’t an instant answer,” Greenhouse said of the recent reporting missteps. “Sometimes you have to stop and think.”

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