BAIT AND SWITCH: The Press and Pledge Case

By Sanders, Alain L. | Judicature, March/April 2005 | Go to article overview

BAIT AND SWITCH: The Press and Pledge Case


Sanders, Alain L., Judicature


The case had all the makings of a major precedent: a controversial religion question, a U.S. Supreme Court divided on the subject of church and state, and the political fury of a huge swath of America. But when the decision in Elk Grove Unified School District v. Newdow1 came down on June 14, 2004, the justices' ruling on the Pledge of Allegiance and its reference to God turned out to be a dud.

The high court declined to decide whether or not a public school policy requiring children to recite the Pledge, which contains the familiar "under God" declaration, violates the Establishment of Religion Clause of the First Amendment. The Court issued no ruling on the question, leaving the school policy untouched, because it held that the person challenging the practice had no standing to bring the case.

The Supreme Court pronouncement was an anticlimactic outcome to a story that had come crashing out of the news gates two years before. On June 26, 2002, the U.S. Court of Appeals for the Ninth Circuit had ruled that recitation of the words "under God" by schoolchildren in public schools violates the First Amendment guarantee against the establishment of religion.2 The media had made much of the decision-front-page stories, newspaper editorials, commentaries, letters to the editor, TV and radio talk-show clashes, Internet chatter-because the ruling was big news. It met all the major defining gatekeeping criteria for news.3

The ruling was novel and dramatic. It scrapped a 50-year-old reference to God in the patriotic salute.1 The decision generated conflict. Large segments of the public voiced outrage, and the president and Congress condemned the decision, enacting a law reaffirming the "under God" language of the Pledge.5 The decision affected a familiar and proximate ceremony, one undertaken by children every morning in classrooms across the nation. And the decision was susceptible to easy visual illustration, with vivid images of youngsters facing the Stars and Stripes, reciting the Pledge.

Against this backdrop, the Supreme Court reversed the court of appeals. The high court decided by a 5 to 3 vote6 that the question of whether or not a school policy requiring recitation of the "under God" Pledge is constitutional should not have been decided, and would not be decided, in this case. The majority concluded that Dr. Michael Newdow, the father who had challenged the recitation of the Pledge by his daughter in her public elementary school, lacked standing to bring the lawsuit.

Newdow's stake in the case was insufficient, the Court reasoned, because the California state court system had granted to the mother-who approved of the Pledge, as did the daughter-the final right to represent the daughter's legal interests in case of disagreement between the parents. The state court system had also denied Newdow the right to sue as the child's "next friend."

Play up, cut down

How did the press-which had set up the public for a landmark event-report this decisional fizzle? By trying not to disappoint too much. For the most part, the major media sought both to play up the ruling to meet news expectations and to cut it down to size to conform to the legal reality of the case's outcome.

Scrutiny of the 10 largest newspapers in the United States' and the TV newscasts of the three major broadcasting networks8 reveals that nearly all of these media organizations featured the Elk Grove story prominently and reported the decision by crafting integrated accounts composed of two contradictory messages. One sought to pin on the decision an outcome that implied a ruling on the Pledge; the other acknowledged that the decision did not address or decide the merits of the controversy.

Overall, each newspaper story correctly conveyed the fact that the justices declined to render a judgment on the constitutionality of reciting the Pledge because Newdow lacked standing to bring the case. But the reports did not initially state this simply or directly. …

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