Watchdog Blog

Herb Strentz: Headlines Made for an Activist Court

Posted at 6:54 pm, March 5th, 2011
Herb Strentz Mug

Forget about judicial activism in the courts; consider instead its place in newspaper headlines and broadcast commentary. Too often, according to the headlines, judges are picking sides in a dispute, rather than interpreting the constitution or reviewing legislation

Those thoughts came to mind as I took in news coverage of the U.S. Supreme Court decision in Snyder v. Phelps (Westboro) — the case involving jeering protesters at the funeral of Marine Lance Corporal Matthew Snyder, killed in Iraq in 2007.

What drove me to take a look at news coverage was Katie Couric’s interview of the father, Albert Snyder, and her asking what he thought about eight Supreme Court justices “backing the protesters.”

Backing the protesters? That phraseology is common in coverage of the courts and judiciary as headlines tell how a judge or a court in a case “favors,” “sides with” or “rules for” for one side or the other. (Such an approach was common in Iowa after the state Supreme Court ruled that a law banning same-sex marriages was unconstitutional. The headlines about how Iowa justices supported gay marriage fed into the successful effort to recall three of the justices in the November election.)

Although the leads and content of story usually report that the court or judge is interpreting the law, that nicety is ignored as headlines sort out the winners and the losers as decreed by apparently activist judges.

A quick online survey of newspaper coverage of the Snyder decision found that practice alive and well. I was surprised, however, that at least three of the 11 newspapers I checked did have the focus on the right issue — First Amendment protection and not judicial activism. Proving that you can get “First Amendment” or some variation of it into a headline were the Washington Post, Wall Street Journal and St. Petersburg Times. The Journal had it: “First Amendment Protects ‘Hurtful’ Speech, Court says.”

“Court sides with,” or some variation of “sides with” was the most popular characterization of the decision — found in the Los Angeles Times,Chicago Tribune and USA Today.

The New York Times had it “Justices Rule for Protesters at Military Funerals,” which to my warped view could almost be read as mandating a protester’s presence.

A Des Moines Register subhead found the Court in “favor” of the protesters, and the Topeka Capital Journal in the hometown of the protesters of the Fred Phelps clan noted, “Court finds for WBC” (Westboro Baptist Church).

The Atlanta Journal Constitution and Kansas City Star, while not as on point as the Post, Journal and St. Pete Times, were closer to the approach of interpreting and applying the law than they were to “backing protesters.”

Reporters in all these instances got the story right; it was the headline writers who seized upon judicial activism. For example, The New York Times headline about justices marching with the protesters was over this Adam Liptak lead: “The First Amendment protects hateful protests at military funerals, the Supreme Court rule on Wednesday in an 8-1 decision.”

And Mark Sherman’s Associated Press lead drew its share of the “sides with” heads even though he had written: “The Supreme Court ruled Wednesday that a grieving father’s pain over mocking protests at his Marine son’s funeral must yield to First Amendment protections for free speech.”

The “grieving father” reference brings us back to the Couric interview. What did Mr. Snyder think of the justices who, according to Couric, backed the protesters? He said:

“When the government won’t do anything about it, and the courts give us no remedy, then people are going to start taking matters into their own hands. And believe me someone is going to get hurt. And when the blood starts flowing, let it be on the Supreme Court Justices’ hands.”

Katie asked for it; Katie got it.

The point is not that better headline writing and better commentary would have assuaged the grief of Mr. Snyder and lessened his bitterness. Nor is the point that better heads and comments will lead to a more informed public.

But headlines like those found in the Washington Post, Wall Street Journal and St. Petersburg Times are more accurate, and that should not be too much to ask.

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