Presswatch/Gag Rulers
Eastland, Terry
PRESSWATCH GAG RULERS by Terry Eastland W hat's wrong with the lead of Linda P. Campbell's story in the May 24 Chicago Tribune: "In a victory for abortion foes, the Supreme Court on Thursday...
...The press delights in hoisting people on their own petards—in this case advocates of judicial restraint on their philosophy...
...W ith few exceptions, the stories on Rust reported less on the first half of the opinion, which focused on administrative law, than on the second, which focused on constitutional issues, especially the plaintiffs' free-speech claim...
...Not too many passed...
...Stephen Wermiel covered the law, David Shribman the politics...
...Also, Greenhouse (like O'Connor) failed to consider whether a decision against the regulations would itself not have been activist...
...T he simple-minded character of 1 most press commentary on Rust is particularly irksome...
...The majority in Rust did not find "serious" constitutional problems with the regulations...
...Campbell is not the first journalist to focus on the political impact of a Court decision...
...Quoting the First Amendment as though it ends debate will not do...
...Top Priority: Erase Latest Court Ruling," went the headline...
...The Constitution says no law shall abridge freedom of speech, no law...
...In their intellectual complexity, judicial decisions demand a reader's close attention...
...The press—in its greatest sin of omission—has also failed to report that legislation proposed in response to Rust would not simply allow but require clinics receiving federal funds to counsel on abortion...
...I'm not aware of a single occasion on which a morning network news program, or any other television talk show, featured a lengthy interview, much less a sympathetic one, with an advocate of the regulations...
...28 THE AMERICAN SPECTATOR SEPTEMBER 1991...
...Just the way it should have been...
...The headline atop the law story-PHigh Court UpTerry Eastland is resident fellow at the Ethics and Public Policy Center in Washington, Etc His book on the Reagan and Bush presidencies will be published in early 1992 by the Free Press...
...No news organization proved more biased than Time...
...The Washington Poses lead on Rust-i`The Supreme Court ruled yesterday that federally funded family planning clinics may be prohibited from giving any information about abortion" —omitted an important detail: the federal regulations that do the prohibiting...
...On the Sunday after the decision was rendered, the New York Times's Linda Greenhouse, whose participation in an abortion-rights march two years ago drew deserved criticism, wrote that Rust "brought the Court itself into sharp focus...
...It did so when Rust came down, and continues to do so as I write (in mid-July), with Congress considering legislation in this area...
...This is a Court with an activist's appetite and reach...
...there they remain completely free to counsel for (or against) abortion...
...When the Supreme Court, in 1989 and 1990, struck down state and federal flag-burning statutes on First Amendment grounds, the press was laudatory...
...ticking to the law in reporting Su-L.3 preme Court decisions requires critical detail...
...This journalistic failure was compounded by an unfair treat-ment of the constitutional issues, which the press reported in terms wholly favorable to the pro-abortion lobby...
...That's what the Wall Street Journal did in covering Rust...
...On NBC's THE AMERICAN SPECTATOR SEPTEMBER 1991 27 "Today Show," Katie Couric, for example, conducted a lengthy tete-a-tete with Barbara Radford of the National Abortion Federation...
...USA Today contributed to this misunderstanding in a May 28 story reporting Planned Parenthood's legislative efforts...
...It has not occurred to Brinkley et al...
...Nor, in general, did the media report in any depth on the views of those who'd wanted the regulations in the first place and oppose changing them in the wake of Rust...
...Typical was the performance of the Chicago Tribunes Campbell, who wrote that the anti-abortion counseling regulations are "known collectively as `the gag rule.'" What she failed to say is who calls them that: Planned Parenthood, the ACLU, and other opponents of the rules (which, incidentally, do not prohibit the use of the term "abortion" —a point Campbell does not mention...
...Despite the presence of jurists known as judicial conservatives, said Greenhouse, this Court does not play "the passive roleidentified with the label of 'judicial restraint.' To make this point in regard to Rust (Greenhouse also discussed two decisions handed down earlier in the term), she invoked Justice Sandra Day O'Connor's dissenting opinion...
...This number led many in the press again to accuse the Court of "judicial activism," this time on the theory that judicial restraint means strict adherence to the doctrine of stare decisis (Latin, for standing by that which has been decided...
...After all, such a ruling would have voided an executive-branch effort to faithfully execute a law of Congress —a well-considered and properly conducted effort based on fmdings of the General Accounting Office and the Department of Health and Human Services that the intent of the enacting Congress had not been enforced...
...O'Connor argued that, should any interpretation of a statute raise serious constitutional problems, the Court can avoid difficulties by using a different interpretation—in the case of Rust, by holding that Congress could not have intended to authorize constitutionally problematic regulations...
...Gagging the Clinics" was the headline for its story on Rust, followed by this alarmist subhead: "The Justices did not disturb the constitutional right to an abortion but made it illegal to discuss the procedure in federally funded centers...
...The issue in Rust is not as simple as he thinks...
...Had the Court been faced in Rust with a law saying no doctor can counsel on abortion, it would have struck it down...
...A better course—assuming an adequate supply of column inches (or air time) —is to run two stories: one on the law in a case, the other on the decision's political impact...
...The regulations have no bearing on what doctors do outside the federally funded program...
...If Planned Parenthood is successful in persuading Congress to write its kind of statute in this area, the law of Rust v. Sullivan will still be, as the lawyers say, good law...
...If you said the first six words of the sentence, you're right...
...What was astonishing," intoned ABC's David Brinkley, "was [the Court's] absurd view that medical personnel paid with government money lose their right to free speech...
...And in her second reference to "the gag rule," Campbell and her editors in effect endorsed the Planned Parenthood lobby by dropping the quotation marks: "The controversy over the gag rule revolves around . . It bears noting that the regulations constitute not a "gagging" but a recognition that if the government pays for a program, it can shape it...
...It merely upheld them...
...But by reporting the decision in terms of the political winner, and in the lead no less, the Tribune distorted the essence of the story—the law handed down...
...so on O'Connor's argument it was not obliged to do what she herself said it should have done...
...Introducing political implications, especially in lead paragraphs and headlines, is hardly the way to bring about a well-informed citizenry...
...Be that as it may, accusing the Court of violating judicial restraint is easy, as Greenhouse showed: you just go to the dissenting opinions and, regardless of their merits, let them be your guide...
...It's done all the time, even by the Washington Times: while Dawn Ceol's lead was faithful to the nuances of the Court's ruling in Rust, the paper's editors distorted her front-page story with this headline: "Abortion clinics lose in funding case...
...holds Abortion Regulationsvas dull but accurate...
...This term the Court wound up over- ruling five previous Supreme Court decisions...
...What the Supreme Court held in Rust v. Sullivan, arguably the most controversial decision of the past term, was indeed a victory for abortion foes...
...Justice Thurgood Marshall, that lifelong exponent of judicial restraint...
...This Court reads the First Amendment as prohibiting laws that flatly state: you cannot say x. It does not read the First Amendment as prohibiting the government from designing a federally funded program that limits what can be done and said...
...Could it be that the Court hasn't read that part...
...I'm not saying the press should ignore the political impact of a decision—there is room in the body of a story for that...
...Smolowe was not the only journalist to flaunt her opinions, especially when attention in the wake of Rust focused on congressional efforts to write new, i.e., Planned Parenthood, law...
...Thus, the press took its cue in calling the Court activist from the dissent in Payne v. Tennessee, which overruled 1987 and 1989 decisions regarding the admissibility of "victim impact" statements in murder cases...
...PRESSWATCH GAG RULERS by Terry Eastland W hat's wrong with the lead of Linda P. Campbell's story in the May 24 Chicago Tribune: "In a victory for abortion foes, the Supreme Court on Thursday upheld federal rules that prohibit government funded family-planning clinics from counseling women about ending their pregnancies or telling them where they can get an abortion...
...The press, of course, has long been biased in favor of abortion rights and a sucker for anyone claiming a violation of free-speech rights...
...O'Connor wrote that the Court should not have addressed the constitutional questions in the case: "It is a fundamental rule of judicial restraint that this Court will not reach constitutional questions in advance of the necessity of deciding them...
...But Greenhouse simply took O'Connor's remarks at face value...
...These elements were missing from Campbell's story, and others...
...that, in the present Court's view, there is a distinction between those cases and Rust...
...But it is not the ruling as such that Planned Parenthood wants to erase, but the regulations...
...Brinkley usually does better than this...
...But all Rust did was end the challenge to the regulations—these are your "law of the land...
...This meant that a key aspect of the ruling was underplayed: namely, that it is not the business of the judiciary to do the policy-making work of the elective branches...
...Correspondent Jill Smolowe did not hide her opinions: "The court's ruling in Rust v. Sullivan made little medical or intellectual or moral sense...
...The decision in Rust thus was bound to test the fairness of journalists...
...Again, the Court did not write, much less require, the regulations...
...The two discussed how horrible the Rust ruling is and what a devastating impact it will have on women, doctors, and the First Amendment...
...At least the Post did not succumb to the shorthand of one network television correspondent, who said that now that the Supreme Court had spoken, it was "the law of the land" that family planning clinics receiving federal funds could not counsel women about abortion...
...The press's carping coverage of Rust set the tone for its analyses of the rest of the Supreme Court's 1990 term...
...The author of this dissent...
...Put in those terms, Rust sounded like a constitutional command from the Court...
...There is a compelling reason for the press to avoid politics and stick to the law in reporting on the Supreme Court (and other courts, for that matter...
...Where are the great press defenders of freedom of speech and conscience...
...Such a definition of judicial restraint is not one held by any of its apostles currently on the Court, and if any justices in ages past held this view, they were very few in number...
Vol. 24 • September 1991 • No. 9
