God, civic virtue, and the American way: reconstructing Engel.

• Author: Lain, Corinna Barrett
• Position: II. What Happened Next B. The Role of Media and Misunderstanding through Conclusion, with footnotes, p. 514-555

2. The Role of Media and Misunderstanding

   Anyone who spends time with the historical record cannot help but notice that the public discourse surrounding Engel was not about what the Supreme Court actually held. The Justices themselves were partly to blame for that discourse. The rest of the responsibility lay with the media.

   Turning first to the Justices, two wrote minority opinions in Engel, and both turn out to be important in understanding the nation's reaction to the case. As previously mentioned, Justice Stewart wrote a lone dissent in Engel. (226) Not yet mentioned is the fact that Justice Douglas wrote a lone concurrence. (227)

   Both Justice Douglas and Justice Stewart argued that the prayer in Engel was indistinguishable from the myriad of other acknowledgments of God by the state; the only difference between the two was which way the argument cut. Justice Douglas claimed that any commingling of church and state was constitutionally impermissible. (228) Thus, he agreed with the majority's ruling on school prayer and pointed to other practices the Supreme Court could, and should, strike down as well. (229) Justice Stewart took the opposite stance, arguing that school prayer was just as constitutional as everything else. "I cannot see how an 'official religion' is established by letting those who want to say a prayer say it," he wrote, pointing to "countless practices" that recognized religion and were sponsored by the state. (230)

   The majority in Engel answered both Justices' claims, explicitly rejecting the premise upon which they were based--that school prayer and other references to God in government were indistinguishable. In characteristically confident style, the Engel opinion stated:

   There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity.... Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. (231) The line drawing was clear, but the statement was poorly placed. The majority had relegated the passage to a footnote that most everyone overlooked, including critics and the popular press. (232) The New York Times, for example, reprinted the entire Engel opinion, along with parts of the concurrence and dissent, but neglected to include the footnote that addressed those Justices' claims. (233) Critics decried Engel's broad, sweeping language, and chided the Supreme Court for its "failure to emphasize the limitations of the decision." (234) In fact, those limits were there. They just weren't where anyone would have thought to look.

   In different ways, both the concurring and dissenting opinions in Engel played a prominent role in the fury that followed the case. Justice Stewart's dissent fueled hyperbolic claims that in striking down school prayer, the Supreme Court had told schoolchildren they could not pray even if they wanted to. "[T]o deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation," he wrote. (235) Justice Stewart viewed Engel in free exercise terms, and in the public discourse, his was the view that stuck. (236)

   Meanwhile, Justice Douglas's concurrence lent legitimacy to claims that the Court would soon be taking aim at other aspects of God in public life. Time and again, critics pointed to Engel's concurrence for the implications of the case. (237) Indeed, on numerous occasions they quoted Engel's concurrence as though it was the holding in the case, leading many people to think it actually was. (238) This was especially incendiary because unlike Justice Stewart, who had lamented Engel's implications, Justice Douglas embraced them as right. (239) Writing in the 1962 Supreme Court Review, Philip Kurland described Engel as a picture of the majority Justices "walking on eggs and of the two minority Justices stamping after them." (240) It was an apt analogy, particularly in light of the mess in their wake.

   In fairness, neither of the minority opinions in Engel could have been fully responsible for the hysteria that followed the decision, because the Supreme Court came under attack well before anyone had time to read them. (241) Engel's concurrence and dissent may have bolstered critics' claims, but they are just a part of understanding the misunderstanding that marked the case. For the rest of the story, one must leave the world of law altogether and enter the world of journalism.

   Within legal academia, Engel is a case study in Supreme Court decision-making (and on the doctrinal side, First Amendment law, of course). But within journalism scholarship, Engel is a case study for an entirely different proposition--how the media's coverage of Court decisions can skew public opinion. (242) As is so often the case, the insights of an interdisciplinary perspective enrich our understanding considerably.

   From a journalistic viewpoint, the story begins with the Supreme Court's announcement of Engel and the media race to report the ruling. (243) The first wire service reports on Engel went out within five minutes of the decision's announcement, feeding what would become the lead story in all news outlets by the end of the day and front-page news the following morning. (244) Unfortunately, none of the reports stressed the limited nature of the Court's ruling; indeed, the AP bulletin failed to note the state-sponsored nature of the prayer at all. (245) Thus, from the start, media reports gave the impression that the Court had forbidden prayer of any type--individual or state sponsored--in public schools. (246) Newspapers sensationalized the ruling with headlines such as "No Praying in Schools, Court Rules" and "Supreme Court Outlaws Prayers in Public Schools" that exaggerated the holding of the case and provided terse, oversimplified accounts of the decision that were at best incomplete. (247) Radio and TV quickly followed suit. (248)

   Meanwhile, public officials likewise reacted to the AP and other wire service reports, quickly going on record to criticize Engel and take a stand in favor of God, prayer, and the American way. (249) The commentary was uninformed and "not a little demagogic." (250) But with proposed constitutional amendments flying, it was newsworthy, and papers quickly shifted from reporting on Engel to reporting on the reaction to the case. (251) Here too the media fanned the flames, focusing almost exclusively on the comments of extremists and following up with interviews to solicit the strongest sound bite reporters could get. (252) Surveying the scene, the New York Herald Tribune lamented "the sight of so many otherwise responsible newspapers getting completely swept off their feet by the tide of emotionalism." (253) Scholars reviewing the news reports agreed, finding "serious distortions" in the media's reporting of the case (254) and concluding that there was "little question" that the way the news was handled contributed to the reaction against Engel. (255)

   All this points to a conclusion that several news magazines noted at the time: Engel was hated "not so much for what it said as for what people thought it said." (256) Time magazine was one of the first to make the point, stating:

   Much of last week's controversy arose from confusion about what the Supreme Court ruled--and, perhaps more importantly, what it did not rule. All too typical was the reaction of an Atlanta clergyman who called the decision "the most terrible thing that's ever happened to us"--then admitted he did not really know what the decision said. (257) Letters to the Justices confirmed it, (258) and surveys showed it in spades (259)--people viewed Engel just as newspapers had reported it, as banning any and all prayer in public schools. Indeed, in one study, a whopping 78.8% of participants thought Engel said "prayer in the public schools was to halt," while just 10.5% thought the ruling banned "state-prescribed prayer ... but saw no impairment of prayer in general." (260) Inadvertently proving the point, the study then went on to conclude (wrongly) that most people had gotten Engel right. (261)

   The Justices felt they had been burned. Justice Black privately stated that Engel was "grossly misrepresented and misunderstood" and expressed hope that in due time the truth about the ruling would come to light. (262) Chief Justice Warren expressed similar views, stating in private correspondence that he hoped that as Engel became "more clearly understood the hysteria concerning the decision w[ould] subside." (263) Justice Brennan was slightly more pointed in his views, publicly stating that those who criticize a decision of the Supreme Court "should at least read the decision" to attempt to understand it first. (264)

   And Justice Clark was more to the point yet. At an American Bar Association meeting two months after Engel was decided, Justice Clark broke from judicial custom of not commenting on the merits of a case to explain the decision to the public. (265) "Here was a state-written prayer circulated to state-employed teachers with instructions to have their pupils recite it in unison at the beginning of each school day," he stated, faulting the press for writing stories that were inaccurate and incomplete. (266) Afterward, Justice Clark observed that

   [a]s soon as people learned that this was all the court decided--not that there could be no official recognition of a Divine Being or recognition on silver or currency of "In God We Trust", or public acknowledgement that we are a religious nation--they understood the basis on which the court acted. (267) Ironically, his comments received little attention in the popular press. (268)

   As to whether such attempts to clarify...