The New York Times‘ hit podcast The Daily published what should have been a straightforward episode on Wednesday morning about a controversial church/state separation case in front of the Supreme Court. Instead, they screwed up basic facts and leaned heavily on the Christian side of the debate.
The case in question is Kennedy v. Bremerton School District, which involves a high school football coach, Joe Kennedy, who claims he was discriminated against when the district told him he couldn’t hold prayer events at midfield after games. On Monday, the Supreme Court heard oral arguments and they’ll issue their ruling in a couple of months.
My take on this case is hardly surprising: Kennedy was showboating and wanted attention, then blamed everyone else when they told him he was going too far. This wasn’t a Christian who wanted to privately “talk” to Jesus (which is legal and would never have been challenged); this was a coach who used his taxpayer-funded position to broadcast his faith while he was still on the clock, effectively coerced athletes into joining him in the prayer circle, and then acted like a victim when the district offered alternative accommodations.
I wrote earlier that the Supreme Court didn’t seem to care about most of these facts when they heard the case, and it unfortunately appears that Kennedy will come out victorious. The only question is how far-reaching their ruling will go. Will they open the floodgates to Christian coaches proselytizing across the country? There are many reasons to be worried.
So when The Daily covered the case two days later, with host Sabrina Tavernise speaking with Times legal reporter Adam Liptak, the structure of the discussion should have been fairly predictable. Liptak would undoubtedly explain the background of the case, tell listeners what both sides of the argument are saying, then offer his analysis of what he thinks the justices will do based on their past rulings and questions during oral arguments.
That’s not what happened.
It turned out Liptak spent a morning with Kennedy to report on the case. Excerpts from their conversation were played during the episode. To be sure, there’s nothing wrong with any of that. That’s how good reporting works. The problem is that Liptak’s summary of the case was heavily skewed in Kennedy’s favor, and he fell for so many of the lies the Christian side has been making for years.
The Daily implied that Kennedy was fired. That’s a lie.
To open the episode, Liptak summarized the case this way:
This case is about a former high school football coach named Joseph Kennedy, who lost his job after he made a habit of going out to the 50-yard line, after his team’s games to thank God to take a knee and say a prayer. And that firing raises all kinds of First Amendment issues.
Later in the episode, attempting to describe the district’s position in the case, Tavernise said, “We were justified in firing you.”
Both of them said that Kennedy was fired for his public prayer ritual.
That’s not true.
Kennedy was offered an “accommodation that would allow him to pray after games away from his players,” and he rejected it. The school later put him on paid leave. When his contract expired in the spring, Kennedy “did not reapply to coach the following year.”
He was never fired for his faith.
In fact, the school district went out of its way to let him have the best of both worlds. But just like his prayers, Kennedy was more interested in generating attention for himself than doing the right thing. He chose to quit so he could feed his own martyrhood complex by pushing the talking point that he was fired for his religious beliefs.
The New York Times now acknowledges all this, by the way. In a correction appended to the podcast’s page the next day, it noted:
An earlier version of this episode misstated the circumstances of Joseph A. Kennedy’s departure from Bremerton High School. He was placed on administrative leave and chose not to reapply for his position, not fired.
Mistakes happen. Corrections are important. But listeners to the podcast will almost certainly miss out on this acknowledgment. More importantly, it’s not some small error! It’s central to the case! It’s one of the lies the Christian side has been telling for years and that the church/state separation crowd has been trying to correct. A (brief) conversation with any of the lawyers or advocates on the other side could’ve resolved this mistake before it sent out to millions of listeners.
The Daily suggested no one was coerced into joining Kennedy’s midfield prayers. That’s a lie.
Tavernise and Liptak spent a portion of the episode discussing the idea of coercion: Did Kennedy’s public prayers pressure students into joining him? That, of course, is central to the case. Kennedy may say he’s just privately praying and not demanding that anyone else join him, but students don’t need a formal mandate to know that getting on a coach’s good side will likely benefit their own football careers. It’s happened with prayer time and time again.
Justice Brett Kavanaugh, of all people, raised this very point on Monday, saying about coercion, “You’re not going to know because the coach is probably not going to say anything, like, ‘The reason I’m starting you is that you knelt at the 50-yard line.’ You’re never going to know.”
When The Daily talked about that aspect of the case, Tavernise asked Liptak if he found any students who felt coerced into joining Kennedy’s prayers. Liptak’s response?
I didn’t, and other news reporters to whom [Kennedy] posed this question also did not.
Sure makes it seem like no one was negatively affected by his prayers.
There are two ways of looking at that: One is that students may not have spoken up in this particular situation because they didn’t want to rock the boat and upset a coach. Just because there isn’t a clear example of coercion doesn’t mean the effect of coercion is non-existent.
This isn’t one of those hypotheticals, though, because the school district’s own lawyers said the coercive pressure was very real in the brief they filed with the Supreme Court:
As the 2015 season unfolded, parents voiced complaints about Kennedy’s prayer practice. One player’s father was “very upset” because his son felt “compelled to participate” for fear that he “wouldn’t get to play as much”… Other parents reported that their children “participated in the team prayers only because they did not wish to separate themselves from the team”… Complaints were raised on social media also… After the school asked Kennedy to stop his practice, “several students and parents” “expressed thanks for the District’s actions” to correct the “awkward situations where they did not feel comfortable declining to join with the other players in Mr. Kennedy’s prayers.”
If Liptak couldn’t find anyone negatively affected by the prayers, it suggests he either didn’t speak with district officials or didn’t bother to read the brief from their attorneys. Even if no one wanted to go on the record, the responsible thing to do would’ve been to point out that there were indeed students who felt compelled to join the prayer circle for reasons that went beyond their religious beliefs.
Liptak didn’t even consider the possibility that many students wouldn’t have wanted to go on the record because speaking out against a popular coach could lead to serious backlash from conservative Christians. As any church/state separation advocate could tell you, that fear is very real.
The Daily suggested Kennedy is still part of the Bremerton community. That’s a lie.
The most interesting part of the episode is that Liptak doesn’t just talk about the case. He shares audio of a trip he took with Kennedy through Bremerton, Washington. We’re told Kennedy moved there in 2006 and that it’s his “hometown.” None of that is in dispute. We’re also told (twice) that he’s a “beloved” member of the community.
However, neither Liptak nor Tavernise told their audience that Kennedy moved the hell out of that community a couple of years ago.
That’s not a small issue. The school district even filed paperwork with the Supreme Court saying the case should be tossed out because Kennedy no longer lives in the area. They explained that when the case was initially filed with the Court, Kennedy said he was “a resident of Port Orchard, Washington” and worked in the state. But in 2019, they argued, “he and his wife sold their home… and they moved to Florida.” They now live in Pensacola.
The district said that Kennedy’s legal team only wanted two things from the Court: They wanted the judges to “reinstate Coach Kennedy to his previous [coaching] positions” and grant him the ability to pray “at the 50-yard line at the conclusion of [Bremerton High School] football games.” This isn’t about money, they say. It’s about letting him coach and pray.
But those things are only possible, the district argued, if Kennedy lives near Bremerton… which he doesn’t. They even noted (quite sarcastically) at the end of that filing:
Even supposing that there were some genuine possibility that petitioner might decide to leave his home in Pensacola, Florida, and move approximately 2,800 miles back to Bremerton, Washington, for a $5,304 part-time coaching job, this Court has “made clear that such a speculation cannot ‘shield [a] case from a mootness determination.’”
Bottom line: Who cares if Kennedy had roots in Bremerton? He doesn’t live there now. He’s not planning to move back there. And even if he said he would move back, that doesn’t negate the fact that he’s not there right now. The Supreme Court could easily punt this case—no pun intended—and dismiss it on account of mootness.
And yet nowhere in The Daily did any of that come up. We got a goddamn tour of Bremerton from Kennedy, giving the implication that he still lives there when, in fact, he lives 2,800 miles away. (Did he just fly back there to meet up with Liptak?!)
Liptak even says early in the episode that the best way to get to know the man at the center of this case is “to go out and visit him in Bremerton, Washington.” BUT HE DOESN”T LIVE THERE, ADAM!
Elsewhere in the episode, Liptak even says Kennedy “remains a very popular figure in the community, which almost uniformly backs him,” suggesting again that he’s still a part of it. But as critics pointed out, the community he lives in today sure as hell isn’t Bremerton. He left that place years ago.
Nor is the support in Bremerton unilateral. A group of clergy members from Bremerton flew to Washington, D.C. to oppose Kennedy. Several clergy members from the area also filed a brief against him! You wouldn’t know that from listening to the episode.
The Daily fell for the conservative Christian spin
The Daily is a 20-minute podcast meant to shine a light on Times stories. I listen to it regularly and consider it very informative. There’s no way this particular podcast can go into the minutiae of one case like this, in a single episode, while still maintaining the interest of an audience that’s not necessarily well-versed in church/state separation cases. I’m not expecting them to cover every aspect of the case, or every argument made by all the various parties involved.
But I do expect the Times to give listeners a fair understanding of why a case like this is controversial. Coming away from this episode, you get the impression that Kennedy hardly did anything wrong and reasonable people wouldn’t be bothered by what he did. To offer that side of the story, without pointing out the glaring holes in his story, is journalistic malpractice.
These aren’t just grievances either. Judges who have heard this case in its earlier iterations have said exactly this! When one appellate court declined to hear Kennedy’s appeal, a conservative judge literally described Kennedy’s side as spinning a “deceitful narrative”:
Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.
That judge noted in his concurrence that Kennedy was “never” disciplined for offering silent, private prayers and that the judge who sided with him “omits most of the key facts in this case, reorders the chronology of events, and ignores pertinent Establishment Clause law, much of which has been in place for more than half a century.”
All of that is to say: Kennedy’s legal team is counting on the Supreme Court to hear a whitewashed version of their story because the facts are not on their side.
The Daily could’ve given listeners a fair version of the story. Instead, they gave preferential treatment to the “deceitful narrative” spun by Kennedy without noting the errors in it.
What a disappointing framing of a consequential case.