The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Katie Couric Took A Knee for RBG

Couric admits to editing 2016 interview to "protect" Justice Ginsburg. And the Supreme Court press office asked her edit the video.

|

In 2016, Couric interviewed Justice Ginsburg. Couric asked Ginsburg about football players who were taking a knee during the national anthem.

I think it is really dumb of them. Would I arrest them for doing it? No. I think it is dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it is a terrible thing to do. But I wouldn't lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. But it is dangerous to arrest people for conduct that doesn't jeopardize the health or wellbeing of other people. It is a symbol they are engaged in.

At that point, the video cuts. Couric asks a followup question. Ginsburg continues:

If they want to be stupid, there is no law that should prevent that. If they want to be arrogant, there is no law that prevents them from that. What I would do is strongly take issue with the point of view they are expressing when when do that.

The video cuts again.

A few days later, Justice Ginsburg issued a statement to the press:

"Some of you have inquired about a book interview in which I was asked how I felt about Colin Kaepernick and other N.F.L. players who refused to stand for the national anthem. Barely aware of the incident or its purpose, my comments were inappropriately dismissive and harsh. I should have declined to respond."

She didn't actually apologize. Nor did she recant her views. Rather, she said they were "dismissive and harsh."

Five years later, there is more to the story. Katie Couric wrote a new book. She admits to editing out part of the RBG interview. Apparently Ginsburg said more about the kneeling:

Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'

She said: 'Which they probably could not have lived in the places they came from…as they became older they realize that this was youthful folly. And that's why education is important.'

Imagine how this statement would have played. A privileged white woman telling black football players that they are showing contempt for the government that gave their grandparents a decent life. I suspect some of those grandparents lived during the era of Jim Crow segregation. And then Ginsburg calls these players uneducated and engaged in youthful folly! Ginsburg would have been excoriated.

To protect RBG, Couric simply edited out the statements.

Couric claims that she 'lost a lot of sleep over this one' and still wrestles with the decision she made.

According to Couric, she 'wanted to protect' Ginsburg and felt that the issue of racial justice was a 'blind spot' for her.

Not really. Ginsburg dissented in Fisher II. She explained the importance of racial preferences in college admissions in light of "centuries of law-sanctioned inequality."

I have several times explained why government actors, including state universities, need not be blind to the lingering effects of "an overtly discriminatory past," the legacy of "centuries of law-sanctioned inequality." Id., at 298 (dissenting opinion). See also Adarand Constructors, Inc. v. Peña, 515 U. S. 200 –274 (1995) (dissenting opinion). Among constitutionally permissible options, I remain convinced, "those that candidly disclose their consideration of race [are] preferable to those that conceal it." Gratz, 539 U. S., at 305, n. 11 (dissenting opinion).

Still, Ginsburg thought the anthem protests were akin to flag burning: stupid exercises of protected speech. RBG was not woke. And I also suspect RBG would be a TERF, by today's standards.

Why did Couric make this edit?

Couric, 64, writes that she always tried to keep her 'personal politics' out of her reporting throughout her career.

But she faced a 'conundrum' when Ginsburg made comments about Colin Kaepernick, the former NFL player who became the controversial figurehead behind the national anthem protest against racial injustice.

Couric felt that when Ginsburg said that people like Kaepernick were 'dumb and disrespectful' they were comments that were 'unworthy of a crusader for equality' like the liberal Supreme Court justice.

…

But Couric writes in her memoir that she thought the justice, who was 83 at the time, was 'elderly and probably didn't fully understand the question.'

Oh come on. Ginsburg was sharp as a tack. Until the end, she was one of the most aggressive questioners on the Court. Ginsburg's intellect towers over Couric. What a demeaning statement.

The story gets worse:

The day after the sit-down, the head of public affairs for the Supreme Court emailed Couric to say the late justice had 'misspoken' and asked that it be removed from the story.

The day after the sit-down, the head of public affairs for the Supreme Court emailed Couric to say the late justice had 'misspoken' and asked that it be removed from the story.

I'm sorry. The Supreme Court public affairs office doesn't get to call the media and ask them to edit stories because a Justice "misspoke." She did not "misspeak." She said exactly what she thinks. Can you imagine the outrage if this request came from the White House? We know the Supreme Court PIO clips about 5,000 tweets per year. It seems they also ask the press to modify statements.

Even if Couric was inclined to edit the interview, she should have refused in the face of the Supreme Court request. But she didn't. Couric caved. Appalling.

Couric's conduct with Ginsburg here is even more jarring in light of her 2016 interview with members of the Virginia Citizens Defense League, a gun rights group. She asked them, "If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?" And the video show the interviewees with blank stares for nearly 10 seconds. Here, Couric deceptively edited the interview to make the members look bad.

https://www.youtube.com/watch?v=V6_9q8K2VK8&ab_channel=StephenGutowski

Fortunately, the VDCL members secretly recorded the interview. In reality, one of the interviewees answered the question. But Couric removed the answer to cast the interviewees as idiots. The Washington Post asked Couric to comment. She said she was "very proud of the film."

Reason lampooned Couric's deceptive edit:

The VCDL members sued Couric for libel. At the time, Eugene wrote that the editing was "dishonest" but not "libelous." The district court dismissed the claim, and the Fourth Circuit affirmed.