TV News is Like my Old Tandy TRS-80 Computer and That is Not Good for Political Discussion

American Eclectic

July 1, 2022

In the 1960s, even the 1970s, there was hope that a 24-hour news program on television would be different, better, than what existed.  Michael Arlen, a TV critic wrote about what he learned regarding the Vietnam War in 1966 from watching TV news:

I read in the paper a while back that sixty per cent of the people in this country get most of their news about the Vietnam War from television, so for the past couple of weeks I‘ve been looking…at the evening news shows...to see what sort of Vietnam coverage the viewers are being given.  If my own experience is any guide, I‘d say that sixty percent of the people in this country right now know more about the “weather picture” over major metropolitan areas than they could ever wish to know and a good deal less about Vietnam than might be useful

TV news has changed, but 24-hour news is more like radio stations where extreme differences are the rule and stations try to capture their niche.  There is soft rock, new rock, country & western, classic music, talk-usually what passes for conservative, religious, and some enlightenment.  Fox News may have seen the potential market for its brand of news with flame throwers and outrage, sprinkled with some news and a few respectable news people who are more window dressing than anything else. Add in Newsmax and One America News Network, as they attempt to compete for some segment of the Fox News audience by offering more rage, frustration, and disgust and a radio model emerges with, perhaps, soft rock conservative, hard rock conservative, and harder rock conservative as market niches.

Fox News, Newsmax, and One America News Network, may do their part to offer up a daily meat and potatoes diet of rage, frustration, and disgust, but Rachel Maddow on MSNBC with her annoying habit of talking as though she is in a conversation with people who need to hear constant repeating as they enter the early stages of dementia is not helpful either.

It may be grand to talk about schemes to make changes to the political process itself, such as developing a method to prevent jerrymandering of congressional districts, where members of Congress get to pick their voters rather than voters picking their members of the House of Representatives.  “Reaching across the aisle” always sounds wonderful and is fine lip service.  But what can be done in some meaningful way to create a political climate where political tensions can exist but never appear on the verge of getting out of hand?

TV news, even the 24-hour stations are detrimental to American democracy in their current format.  I have no illusion that my criticism of TV news will lead to some changes, all I can hope for is to plant a seed that others may also pick up the banner and add to my voice.

My old 1980s Tandy TRS-80 computer had no hard drive, anything saved was stored on a 5 ¼ inch floppy disc.  When the computer was turned off, if I had not saved what I was writing on a disc, everything was lost.  The next time I turned on the computer, I needed to load the word processing program also from a floppy disc and with the other disc, reopen what I was working on.  TV news is somewhat close to that, although it is more separated or disjointed, from one day or night to the next.  There is no building on what was covered before so a superficial or simple liberal versus conversative becomes magnified as real.

If an average adult reader can read about 250 words per minute, about a typed page, then three pages or three minutes is a TV news version of a well-developed story (oftentimes less than that).  When the TV is turned off, all is lost, and the next day it starts again from ground zero.  One of the symptoms of Attention-Deficit/ Hyperactivity Disorder (ADHD) is that a person misses details, which can be thought of as not understanding nuance.  Gloss over complex issues, political or more specifically public policy, and sweeping generalizations are left—an environment ripe for ideology without substance to flourish.  The American Conservative Union (ACU) rates members of Congress and their ratings are an indication that no absolute liberal vs. conservative exists.  For example, Representative Dan Bishop (R, NC) got a 100% conservative rating for 2021, but Representative Steve Daines (R, MT) had an 85% conservative rating for 2021, I guess he was liberal 15% of the time.  Or, Representative Claudia Tenney (R, NY) had a 76% conservative rating, did that make her liberal 24% of the time?

Notice that TV news can address Supreme Court justices taking sides and ponders about a conservative bloc, as though it were an alliance, although no discussion of Supreme Court opinion writing is developed.  One attorney more than three decades ago counted the number of footnotes in all Supreme Court opinions during the 1989-1990 term and counted 1,797: The footnotes are part of the opinion. As the lawyer, who counted these footnotes and argued cases before the Supreme Court put it, “…lower courts and litigants are bound to follow the Supreme Court’s footnoted musings.”  How would such a story be developed on a TV news segment and try to explain its significant to the audience?

When Justice Harry Blackmun wrote the Supreme Court’s opinion in Roe v Wade (1973), the opinion was more than 11,000 words. Understanding and digesting a Supreme Court opinion takes time. The draft opinion that indicated Roe v Wade would be overturned, published by Politico in May (Dobbs v Jackson Women’s Health Organization) was 67 pages without the appendices (and coincidentally contains 67 footnotes). The final Supreme Court Dobbs opinion released on June 24th, written by Justice Alito, ran 79 pages with an 8-page syllabus (an explanation of the opinion but not part of the opinion) and, again, there were appendices. Alito’s opinion contained 68 footnotes. In addition, there were three concurring opinions (which mean that justices agreed with Alito’s opinion but had some differences with how the opinion was reached or other issues). Justice Thomas’s concurring opinion ran 7 pages, Justice Kavanaugh’s 12 pages, and Chief Justice Robert’s was also 12 pages. The dissenting opinion by Justices Breyer, Sotomayor, and Kagan ran 60 pages and contained an appendix. Concurring opinions can muddy the waters of the Court’s opinion (in this case Alito’s). Reading concurring opinions in conjunction with the Court’s opinion can raise issues of how united the majority on the Court is about an issue and so it leads to questions about what types of cases the Court might address next. In a 6-3 ruling, with half the justices in the majority writing concurring opinions, it is inevitable that speculation about future abortion cases and where those cases might take us is not clear at all—I think you should assume there will be future cases. A TV news segment cannot do justice to such documents and TV news makes no attempt to explain its shortcomings to the audience so they, at least, develop an understanding that things are more complex than they appear.

Just to add confusion to the Dobbs case, the concurring opinion by Chief Justice Robert was a concurring in judgment opinion, which, technically, is different than the concurring opinions by Justices Thomas and Kavanaugh. The Chief Justice was indicating he had disagreement with the reasoning in the Court’s opinion, but he agreed with upholding the 15-week ban on abortion which Mississippi had and was addressed in this case and he wrote:

I agree with the Court that the viability line…should be discarded. …That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. …I see no sound basis for questioning the adequacy of that opportunity.

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

As a result of the distinction between a concurring opinion and a concurring in judgment opinion, how should we count the Supreme Court vote in Dobbs, as 6-3 or 5-4?

Supreme Court cases tend to beget subsequent cases (quite Biblical sounding). I do not expect TV news to do a good job trying to anticipate well what types of cases can arise from all this opinion writing. It will be interesting, however, to see what types of Federal district court cases arise over interpretations of the Alito opinion and whether one or more of the three concurring opinions might arise in those cases. A law review article addressed concurring opinions and stated:

…[D]espite the Supreme Court’s admonition to the contrary-[concurring opinions] are taken quite seriously by lower courts. Especially in constitutional, salient cases, lower courts appear to disregard a binding majority opinion in favor of the path offered by the concurrence.

Again, I’ll point out-I seriously doubt abortion is a settled issue. The issue of a woman in a state that banned abortion going to a state that offers it to get an abortion, probably will lead to a court case somewhere—interstate abortion.

My late wife was an OB/GYN and based on some of the language in the Alito opinion, I suspect that several years down the road that some states might pass legislation addressing miscarriages and the need to provide detailed documentation. This implies that some miscarriages will be suspect and seen as abortions. The increased use of the abortion pill (actually two pills taken between 24 and 48 hours apart) which causes a miscarriage, might lead some states to use legislation to go after this pill. OB/GYNs might end up documenting miscarriages in ways they never expected.

Reading the Alito opinion, one gets the sense that the basic message is Hey-girlie-you-got-pregnant-live-with-it. The opinion is less about pro-life and more about punishment. The Thomas concurring opinion indicates the meanness that might come from this Supreme Court in future cases—if he gets his way. In his concurring opinion, Thomas wrote, “…we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” It requires too much writing here to go into each of these three cases in detail, but Thomas’s concurring opinion raises all sort of issues, well beyond the scope of TV news. Overturning Griswold v Connecticut (1965) raises issues of what privacy rights would be like if it were overturned—particularly regarding access to contraceptives conveniently available in drugstores. Overturning Lawrence v Texas (2003) would be another setback to privacy rights. The legal process has stayed out of the bedroom of consenting adults, government (police in particular) might be allowed back into the bedroom. Overturning Obergefell v Hodges (2015) would, essentially, end gay marriage, which raises the issue of whether those gay marriages that currently exist (U.S. Census put the figure at 543,000 in 2019) would be nullified by certain state governments or reclassified in some other way.

A made-for-TV movie Swing Vote (1999, starring Andy Garcia) has Joseph Kirkland (Garcia) joining the Supreme Court after Roe v Wade was overturned. Alabama decided to prosecute a woman for first-degree murder for having an abortion, before the state’s anti-abortion law went into effect. Toward the end of the movie, Kirkland makes a statement that sounds nothing like the Alito opinion or the dark ages concurring opinion by Thomas, he says, “Alabama has a right to regulate abortion but only as part of a comprehensive plan for childcare.” In reading the Alito opinion, why was there no reference made to what states should be required to do to help pregnant women, many of them single, poor, and already mothers? It is difficult to believe that Supreme Court justices did not consider these women, these mothers. The same day the Dobbs opinion was released, Missouri’s Attorney General issued a four-page statement which addressed the unborn and the end to abortion in the state, but nothing in this statement focused on pregnant women and what happens next—particularly regarding quality of life.

In addition to the topic of Supreme Court opinion writing, there are other important issues TV news seems unable to address well, or at all. The term “Federalism” is central to understanding our version of democracy (the relationship of the states to the Federal government), yet I cannot ever remember it discussed on a TV news show.  Forget ever hearing a detailed discussion of Medicaid and its impact on state government budgets (onerous best describes it).

“Gun control” is a useful and a shorthand way of discussing guns for TV news since, as with anything else three minutes might the length of a segment on guns, maybe 750 words (again, expect less).  This term is detrimental to any useful discussion that might lead somewhere.  All that the term gun control does is to reinforce the TV news magnified version of liberal versus conversative:  Liberals are for gun control; conservatives are against it.  So, the us versus them, maybe urban versus rural in all its simplicity and distortion is reinforced.  Choose a side, it’s either/or.  But closer to substance is that it should be degrees of gun regulation-certainly a mouthful and not conducive to the TV news format.  Degrees of gets beyond the either/or and addresses nuances: Which state approach to concealed carry is better than another state’s and why; When guns are confiscated after a crime has been committed, which state or states are those guns most likely to have come from; How effective are current federal laws addressing straw man purchases (someone buying a gun for another person who probably cannot qualify to buy a gun)? 

I listened to a friend recently explain that she stayed at her son-in-law’s mother’s house, and the woman was not vaccinated against Covid.  The friend told me that this unvaccinated woman repeated what she heard on Fox News, making them her own perspectives on the world around her.  I suspect that while Fox News viewers may repeat what they hear, making them their own perspectives, that somehow the same thing might be happening with viewers of other 24-hour news stations.  Maybe less so, but the influence of TV news is still there.

It is not changes to the political process that are the starting point to develop some movement toward constructive, pragmatic liberal versus conservative exchanges that lead to meaningful outcomes but confronting how TV news is presented.

If too many people get their cues on how to discuss or develop perspectives on political, or more specifically public policy issues from TV news, then a change in the use of description closer to the complexity of what takes place can begin to have a rippling effect, perhaps beyond any discussion about eliminating jerrymandered congressional districts.  Saying degrees of as opposed to this or that, quick pick one side, requires more thought, more explanation.  The problem of TV news is that it does not help in promoting reasonable conversation.

No doubt many people know a great deal more about the weather over Washington than they do about the substance of what goes on closer to the ground.

NOTES

Michael J. Arlen, Living-Room War (Syracuse, N.Y., Syracuse University Press, 1997)

Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer, “Divide & Concur: Separate Opinions & Legal Change,” Cornell Law Review, Vol. 103, Issue 4 (July 29, 2020): https://cornelllawreview.org/2020/07/29/divide-concur-separate-opinions-legal-change/

David Margolick, “AT THE BAR: The Footnote Fetish in Judicial Opinions: A Weather Vane of High Court Philosophy?” New York Times (Jan. 4, 1991): https://www.nytimes.com/1991/01/04/news/bar-footnote-fetish-judicial-opinions-weather-vane-high-court-philosophy.html

Eric Schmitt, Attorney General of Missouri, Opinion Letter No. 22-2022 (June 24, 2022): https://ago.mo.gov/docs/default-source/press-releases/22-2022.pdf?sfvrsn=39ffd2d_2