The Volokh Conspiracy

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NPR Issues A "Clarification," Not A "Correction" on #Maskgate (Updated)

Perhaps the one silver lining of this mess is that the media will be less likely to publish leaks from SCOTUS.


I am sick of #Maskgate. You are sick of #Maskgate. The Justices are sick of #Maskgate. Alas, there is more #Maskgate.

Thursday evening, NPR's public editor wrote an essay titled "NPR reporting on Supreme Court mask controversy merits clarification." The subtitle was, "An inaccurate verb choice made the reporting unclear." This article comes 24 hours after Nina Totenberg boasted that NPR stood by her reporting.

At this point, the only redeeming value of this exchange is to reflect on how the media operates.

Tuesday morning, Nina Totenberg include this tidbit in her published report about the "Scorpions" on the Supreme Court:

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

Tuesday afternoon, Nina offered slightly different remarks on a live broadcast:

But now with the omicron surge, the situation had changed. And according to court sources, Sotomayor didn't feel safe in close proximity to people who were unmasked. So Chief Justice John Roberts, understanding that, in some form or other suggested that the other justices mask up.

You see the difference? First, Totenberg said "in some form asked." Second, Totenberg said "in some form or another suggested." There is a huge difference between the Chief asking, and the Chief suggesting.

Now, the NPR public editor says the use of "asked" was "misleading."

Totenberg's story merits a clarification, but not a correction. After talking to Totenberg and reading all justices' statements, I believe her reporting was solid, but her word choice was misleading.

I have no idea what the difference is between a "clarification" and a "correction."

The public editor offered this explanation from Totenberg:

Exactly how did Roberts, in some form, ask or suggest that his colleagues cover up? Totenberg told me she hedged on this: "If I knew exactly how he communicated this I would say it. Instead I said 'in some form.' "

That phrasing is at the core of the dispute. Totenberg said she has multiple, solid sources familiar with the inner workings of the court who told her that Roberts conveyed something to his fellow justices about Sotomayor's concerns in the face of the omicron wave.

What did Roberts convey? Totenberg does not know. How did Roberts convey the message? Totenberg does not know. What a thin reed to stand on.

The more prudent approach would be to say nothing at all. These unsourced leaks are inherently unreliable–especially with so few corroborating facts. Here is the advice given by the public editor:

Totenberg and her editors should have chosen a word other than "asked." And she could have been clear about how she knew there was subtle pressure to wear masks (the nature or even exact number of her anonymous sources) and what she didn't know (exactly how Roberts was communicating).

I also did not realize that Twitter flagged Totenberg's story as "potentially false." She got the Trump treatment!

NPR got a black eye here.

In the absence of a clarification, NPR risks losing credibility with audience members who see the plainly worded statement from Roberts and are forced to go back to NPR's story and reconcile the nuances of the verb "asked" when in fact, it's not a nuanced word. . .  .

The disconnect between the story and Chief Justice Roberts' statement is concerning to many NPR listeners and readers who wrote to us. . . . .

The way NPR's story was originally worded, news consumers must choose between believing the chief justice or believing Totenberg. A clarification improving on the verb choice that describes the inner workings of the court would solve that dilemma.


Meanwhile, there have been no updates posted on Ariane de Vogue's articles. Her claims were somewhat different.

Supreme Court Justice Sonia Sotomayor has been listening to arguments remotely from her chambers because she doesn't feel comfortable sitting on the bench near colleagues who are not masked, including Justice Neil Gorsuch, according to a source familiar with the situation. . . .

At the beginning of the term, Sotomayor wore a mask on the bench at many cases. Another source familiar with the situation said that after Omicron surged, Sotomayor expressed her concerns to Chief Justice John Roberts. The source said she did not directly ask Gorsuch to wear a mask. She has participated remotely during arguments this month.

What do I make of all this? Sotomayor expressed her concern to the Chief, and the Chief "suggested" somehow that others should wear a mask. Maybe by saying he would mask up himself.

I hope this controversy ends. Perhaps the one silver lining of this mess is that the media will be less likely to publish leaks from SCOTUS.

Update: I wish this controversy was over, but it's not. And I realize I made an error. NPR did not issue a clarification of any sort. The public editor, who is independent of the news department said NPR should issue a clarification. But NPR did on such thing.

And, Nina Totenberg spoke to the Daily Beast about the independent editor.

The public editor, Kelly McBride, who operates independently of the newsroom but takes a paycheck from the publication, called for a "clarification, but not a correction" to an article about the Supreme Court written by one of the newsroom's "founding mothers," legal affairs correspondent Nina Totenberg.

"She can write any goddamn thing she wants, whether or not I think it's true," Totenberg told The Daily Beast on Thursday night. "She's not clarifying anything!"

Totenberg laughed, and added: "I haven't even looked at it, and I don't care to look at it because I report to the news division, she does not report to the news division."

But in her own telephone conversation with The Daily Beast, Totenberg—a towering presence at NPR who has been there since 1975—responded to McBride, the justices, and general criticism of her story.

"A non-denial denial from two of them doesn't work," Totenberg said, referring to the statement from Sotomayor and Gorsuch. As to Roberts, she said, "the other just refuses to accept the fact that I did not say that he requested that people do anything, but in some form did."

"I have got nothing to say, except that I am sticking by my reporting," Totenberg said, while eating dinner. "I think it is absolutely valid."

And NPR is still standing behind Nina:

A spokesperson for NPR told The Daily Beast late Thursday that "we stand behind Nina Totenberg's reporting." The NPR official added: "The public editor is independent and does not speak for NPR."

Again, I think Totenberg's problem was running the story in the first place. Someone, somewhere, told her something happened. What exactly Nina does not know. The failure to get any corroborating details was reason enough to let the story die. Now, I hope #Maskgate dies.