Petitioner
Dan Cohen
Respondent
Cowles Media Co., DBA Minneapolis Star & Tribune Co., et al.
Petitioner's Claim
That the First Amendment does not prevent a plaintiff from recovering damagesunder a state law of general applicability when a newspaper breaches a promise of confidentiality to the plaintiff.
Chief Lawyer for Petitioner
Elliot C. Rothenberg
Chief Lawyer for Respondent
John D. French
Justices for the Court
Anthony M. Kennedy, William H. Rehnquist, Antonin Scalia, John Paul Stevens,Byron R. White (writing for the Court)
Justices Dissenting
Harry A. Blackmun, Thurgood Marshall, Sandra Day O'Connor, David H. Souter
Place
Washington, D.C.
Date of Decision
24 June 1991
Decision
Reversed and remanded the Minnesota Supreme Court's decision that enforcementof a promise of confidentiality would violate the First Amendment rights ofthe publishers of the Pioneer Press and Star Tribune
Significance
In a decision that jarred the American news media, the Court ruled that the First Amendment does not protect journalists from being sued, under general-application laws, by a confidential source when that source's identity is revealed without consent. This ruling troubled constitutional analysts as well asthe general press. Legal scholars feared it paved the way for future weakening of First Amendment protections. Some media commentators foresaw unprecedented restrictions on the news-gathering process and editorial control. Althoughthere is evidence that news organizations did not extensively alter their confidentiality policies and procedures after Cohen, many did reconsiderthem in its wake.
The Sacred Trust Between Reporter And Source
Protecting the anonymity of confidential news sources in exchange for information is an established journalistic tradition in the American press. It is common practice in the news industry and accepted by most citizens as a necessary journalistic tool. Although the U.S. Supreme Court has recognized that freedom of speech and of the press may be constitutionally limited, prior to 1991 it had voiced little about how news organizations obtained information. This 5-4 decision, however, changed that.
Dan Cohen was the public relations director for the Independent-Republican candidate in the 1982 Minnesota governor's race. In exchange for a promise thathe would remain anonymous, Cohen offered information about an opposing candidate to reporters from two Minnesota newspapers. The reporters promised confidentiality, so Cohen provided them with copies of two public court records that showed that the Democratic-Farmer-Labor candidate, Marlene Johnson, had been charged with unlawful assembly in 1969 and convicted of petit theft in 1970. Johnson was soon afterward interviewed for her explanation. Subsequently,Cohen's source for the records was discovered, which revealed that the charges of unlawful assembly had been dismissed and the 1970 conviction had been vacated. After some debate, the editors of each newspaper decided to publish Cohen's name and his connection to the Independent-Republican campaign in theirstories on Johnson. Republican campaign officials denied any part in the affair, and Cohen was fired the day the stories were printed.
Cohen then sued the newspapers' publishers for fraudulent misrepresentation and breach of contract in a Minnesota state court. In that trial, the publishers argued that Cohen's lawsuit was prohibited by the First Amendment since itviolated the right of freedom of the press. The jury, however, found in Cohen's favor and awarded him $200,000 in compensatory damages and $500,000 in punitive damages. On appeal, the Minnesota Court of Appeals found that Cohen had not proven fraud. It reversed the punitive damages award, as fraud was theonly claim that would provide for that kind of award. The court did, however,uphold the breach of contract judgment and the compensatory damage award.
The case went on to the Minnesota Supreme Court. During the oral arguments, one justice raised a question regarding equitable estoppel, in which one partyis prevented from asserting his rights against another because the second party justifiably depended upon the conduct of the first and would suffer injustice if the first party was allowed to break the contract. This argument hadnot been presented before either of the previous courts by either Cohen or the publishers. Nevertheless, the Minnesota Supreme Court addressed the question of whether Cohen had a case based on a promissory estoppel, theory. This principle allows for a non-contractual promise to be made enforceable to avoidan injustice. It is used where, although there may not be a binding contract,because one party has relied on the promise of the other, it would be unjustnot to enforce the agreement. As they began their analysis, the court statedthat to avoid injustice, the First Amendment rights to a free press must beweighed equally with Cohen's right to have the promise of confidentiality enforced. The court ultimately found that, "in this case, enforcement of the promise of confidentiality under a promissory estoppel theory would violate thedefendants' First Amendment rights." The court reversed the compensatory damages award. The U.S. Supreme Court later granted certiorari, or commanded the lower court to forward the record of its proceedings for review, to consider the case's relationship to the First Amendment.
The Press Is Subject To The Same Laws As All Citizens
The Supreme Court considered three principal questions. First, the publishersargued that the case should be dismissed because the promissory estoppel theory had not been argued in the lower courts. The Court quickly disagreed, citing several precedents which defended its jurisdiction regardless of whetheror not a party had raised a federal law issue in a lower court. The second and most important issue was whether the First Amendment prevents a plaintiff from using a state promissory estoppel law to recover damages when a newspaperbreaks a promise of confidentiality to the plaintiff. Writing for the majority, Justice White began by establishing that promissory estoppel is a state law doctrine that creates legal responsibilities which, though not expressly assumed by the parties, were still enforceable in Minnesota state courts. Thus, a promissory estoppel cause of action "involves state action within the meaning of the Fourteenth Amendment, and therefore triggers the First Amendmentprotections."
However, he reasoned, the doctrine was applicable to all Minnesota citizens,not just to the press specifically. Thus, he said, the First Amendment did not require that a stricter scrutiny be applied to the enforcement of promissory estoppel against the press than would be applied to anyone else. The respondents had argued that publication of legally gathered, truthful news about public concerns was not punishable by the state. But Justice White concluded that the First Amendment did not insulate the press from any law which in any way limited its right to report the truth. In defense of this conclusion, he cited several prior decisions which had found that members of the press were subject to the same laws as all citizens. These decisions, Justice White wrote, supported the notion that
Finally, Justice White maintained that any limitations on the press's right to report the truth resulting from the application of a general law like promissory estoppel were "incidental, and constitutionally insignificant." Therefore, he concluded, the First Amendment did not forbid the application of thatlaw to the press. The final question before the Court was whether it should restore Cohen's damages award. The Court rejected the request. The issues of Cohen's verdict and the interpretation of Minnesota State Constitution, it felt, were matters for the Minnesota Supreme Court to address. On remand in 1992, Cohen's $200,000 jury award was reinstated to him by the Minnesota SupremeCourt under promissory estoppel.
The Press' Freedom Is The Public's Right
In his dissenting opinion, Justice Blackmun disagreed with the line of decisions which the majority used as the "controlling precedent." He supported theMinnesota Supreme Court in basing its decision "not on the identity of the speaker, but on the speech itself." He pointed out that it was important to think of this case in a "classic First Amendment context, . . . namely a political source in a political campaign." He also disagreed with the majority opinion that the famous case of Hustler Magazine Inc. v. Falwell (1988) wasnot comparable to this case. In that case, he wrote, the Court had found theFirst Amendment did apply to a claim involving a state law of general applicability, because the law was used to "penalize the expression of opinion."
Justice Souter also wrote a dissenting opinion. In contrast to the majority,he centered on the necessity of weighing the specific issues at hand--the state's interest in enforcing a newspaper's promise, and the greater public interest in "unfettered publication of the information revealed in this case." The real character of the right of freedom of the press, he wrote, lies ultimately in that it is the public's right, not simply the media's. He reasoned that the exercise of that right must be measured according to how well it empowers public discussion; how well it makes for a "better informed, and thus moreprudently self-governed" society. He conceded that in another situation, a breach of a confidentiality promise might not be constitutionally protected. However, he felt the "First Amendment value" of the information in this case outweighed the state's interest in enforcing a promise.
Impact
In the months after it was handed down, this ruling inspired other courts todistinguish between media content and media news-gathering when determining what was protected under the First Amendment. It also brought calls of alarm from academic, legal, and media observers. In law journals, some writers criticized the justices' reasoning regarding when and how to apply First Amendmentprotections. Certain media and communications critics feared that opening the door for confidential sources to legally enforce reporter-source agreementswould have a "chilling effect" on the news-gathering process. It was predicted that journalists would be less likely to make use of anonymous source information, hindering the free flow of speech and information in the media. In 1994 a study of 106 large daily American newspapers was conducted to ascertainhow the Cohen case affected their use of anonymous information. It found that most editors were aware of the case and the significance of the decision. It also discovered that as a result of the ruling most newspapers reviewed their confidential source policies, but less than 20 percent changed them. The study concluded that either editors did not see the Cohen decision as a threat, or they felt their existing policies would hold up well in court against the criteria set by it.
Related Cases
Dan Cohen
Respondent
Cowles Media Co., DBA Minneapolis Star & Tribune Co., et al.
Petitioner's Claim
That the First Amendment does not prevent a plaintiff from recovering damagesunder a state law of general applicability when a newspaper breaches a promise of confidentiality to the plaintiff.
Chief Lawyer for Petitioner
Elliot C. Rothenberg
Chief Lawyer for Respondent
John D. French
Justices for the Court
Anthony M. Kennedy, William H. Rehnquist, Antonin Scalia, John Paul Stevens,Byron R. White (writing for the Court)
Justices Dissenting
Harry A. Blackmun, Thurgood Marshall, Sandra Day O'Connor, David H. Souter
Place
Washington, D.C.
Date of Decision
24 June 1991
Decision
Reversed and remanded the Minnesota Supreme Court's decision that enforcementof a promise of confidentiality would violate the First Amendment rights ofthe publishers of the Pioneer Press and Star Tribune
Significance
In a decision that jarred the American news media, the Court ruled that the First Amendment does not protect journalists from being sued, under general-application laws, by a confidential source when that source's identity is revealed without consent. This ruling troubled constitutional analysts as well asthe general press. Legal scholars feared it paved the way for future weakening of First Amendment protections. Some media commentators foresaw unprecedented restrictions on the news-gathering process and editorial control. Althoughthere is evidence that news organizations did not extensively alter their confidentiality policies and procedures after Cohen, many did reconsiderthem in its wake.
The Sacred Trust Between Reporter And Source
Protecting the anonymity of confidential news sources in exchange for information is an established journalistic tradition in the American press. It is common practice in the news industry and accepted by most citizens as a necessary journalistic tool. Although the U.S. Supreme Court has recognized that freedom of speech and of the press may be constitutionally limited, prior to 1991 it had voiced little about how news organizations obtained information. This 5-4 decision, however, changed that.
Dan Cohen was the public relations director for the Independent-Republican candidate in the 1982 Minnesota governor's race. In exchange for a promise thathe would remain anonymous, Cohen offered information about an opposing candidate to reporters from two Minnesota newspapers. The reporters promised confidentiality, so Cohen provided them with copies of two public court records that showed that the Democratic-Farmer-Labor candidate, Marlene Johnson, had been charged with unlawful assembly in 1969 and convicted of petit theft in 1970. Johnson was soon afterward interviewed for her explanation. Subsequently,Cohen's source for the records was discovered, which revealed that the charges of unlawful assembly had been dismissed and the 1970 conviction had been vacated. After some debate, the editors of each newspaper decided to publish Cohen's name and his connection to the Independent-Republican campaign in theirstories on Johnson. Republican campaign officials denied any part in the affair, and Cohen was fired the day the stories were printed.
Cohen then sued the newspapers' publishers for fraudulent misrepresentation and breach of contract in a Minnesota state court. In that trial, the publishers argued that Cohen's lawsuit was prohibited by the First Amendment since itviolated the right of freedom of the press. The jury, however, found in Cohen's favor and awarded him $200,000 in compensatory damages and $500,000 in punitive damages. On appeal, the Minnesota Court of Appeals found that Cohen had not proven fraud. It reversed the punitive damages award, as fraud was theonly claim that would provide for that kind of award. The court did, however,uphold the breach of contract judgment and the compensatory damage award.
The case went on to the Minnesota Supreme Court. During the oral arguments, one justice raised a question regarding equitable estoppel, in which one partyis prevented from asserting his rights against another because the second party justifiably depended upon the conduct of the first and would suffer injustice if the first party was allowed to break the contract. This argument hadnot been presented before either of the previous courts by either Cohen or the publishers. Nevertheless, the Minnesota Supreme Court addressed the question of whether Cohen had a case based on a promissory estoppel, theory. This principle allows for a non-contractual promise to be made enforceable to avoidan injustice. It is used where, although there may not be a binding contract,because one party has relied on the promise of the other, it would be unjustnot to enforce the agreement. As they began their analysis, the court statedthat to avoid injustice, the First Amendment rights to a free press must beweighed equally with Cohen's right to have the promise of confidentiality enforced. The court ultimately found that, "in this case, enforcement of the promise of confidentiality under a promissory estoppel theory would violate thedefendants' First Amendment rights." The court reversed the compensatory damages award. The U.S. Supreme Court later granted certiorari, or commanded the lower court to forward the record of its proceedings for review, to consider the case's relationship to the First Amendment.
The Press Is Subject To The Same Laws As All Citizens
The Supreme Court considered three principal questions. First, the publishersargued that the case should be dismissed because the promissory estoppel theory had not been argued in the lower courts. The Court quickly disagreed, citing several precedents which defended its jurisdiction regardless of whetheror not a party had raised a federal law issue in a lower court. The second and most important issue was whether the First Amendment prevents a plaintiff from using a state promissory estoppel law to recover damages when a newspaperbreaks a promise of confidentiality to the plaintiff. Writing for the majority, Justice White began by establishing that promissory estoppel is a state law doctrine that creates legal responsibilities which, though not expressly assumed by the parties, were still enforceable in Minnesota state courts. Thus, a promissory estoppel cause of action "involves state action within the meaning of the Fourteenth Amendment, and therefore triggers the First Amendmentprotections."
However, he reasoned, the doctrine was applicable to all Minnesota citizens,not just to the press specifically. Thus, he said, the First Amendment did not require that a stricter scrutiny be applied to the enforcement of promissory estoppel against the press than would be applied to anyone else. The respondents had argued that publication of legally gathered, truthful news about public concerns was not punishable by the state. But Justice White concluded that the First Amendment did not insulate the press from any law which in any way limited its right to report the truth. In defense of this conclusion, he cited several prior decisions which had found that members of the press were subject to the same laws as all citizens. These decisions, Justice White wrote, supported the notion that
the publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.Furthermore, he wrote, compensatory damages were not punishment in the criminal sense, butwere "constitutionally indistinguishable from a generous bonus paid to a confidential news source."
Finally, Justice White maintained that any limitations on the press's right to report the truth resulting from the application of a general law like promissory estoppel were "incidental, and constitutionally insignificant." Therefore, he concluded, the First Amendment did not forbid the application of thatlaw to the press. The final question before the Court was whether it should restore Cohen's damages award. The Court rejected the request. The issues of Cohen's verdict and the interpretation of Minnesota State Constitution, it felt, were matters for the Minnesota Supreme Court to address. On remand in 1992, Cohen's $200,000 jury award was reinstated to him by the Minnesota SupremeCourt under promissory estoppel.
The Press' Freedom Is The Public's Right
In his dissenting opinion, Justice Blackmun disagreed with the line of decisions which the majority used as the "controlling precedent." He supported theMinnesota Supreme Court in basing its decision "not on the identity of the speaker, but on the speech itself." He pointed out that it was important to think of this case in a "classic First Amendment context, . . . namely a political source in a political campaign." He also disagreed with the majority opinion that the famous case of Hustler Magazine Inc. v. Falwell (1988) wasnot comparable to this case. In that case, he wrote, the Court had found theFirst Amendment did apply to a claim involving a state law of general applicability, because the law was used to "penalize the expression of opinion."
Justice Souter also wrote a dissenting opinion. In contrast to the majority,he centered on the necessity of weighing the specific issues at hand--the state's interest in enforcing a newspaper's promise, and the greater public interest in "unfettered publication of the information revealed in this case." The real character of the right of freedom of the press, he wrote, lies ultimately in that it is the public's right, not simply the media's. He reasoned that the exercise of that right must be measured according to how well it empowers public discussion; how well it makes for a "better informed, and thus moreprudently self-governed" society. He conceded that in another situation, a breach of a confidentiality promise might not be constitutionally protected. However, he felt the "First Amendment value" of the information in this case outweighed the state's interest in enforcing a promise.
Impact
In the months after it was handed down, this ruling inspired other courts todistinguish between media content and media news-gathering when determining what was protected under the First Amendment. It also brought calls of alarm from academic, legal, and media observers. In law journals, some writers criticized the justices' reasoning regarding when and how to apply First Amendmentprotections. Certain media and communications critics feared that opening the door for confidential sources to legally enforce reporter-source agreementswould have a "chilling effect" on the news-gathering process. It was predicted that journalists would be less likely to make use of anonymous source information, hindering the free flow of speech and information in the media. In 1994 a study of 106 large daily American newspapers was conducted to ascertainhow the Cohen case affected their use of anonymous information. It found that most editors were aware of the case and the significance of the decision. It also discovered that as a result of the ruling most newspapers reviewed their confidential source policies, but less than 20 percent changed them. The study concluded that either editors did not see the Cohen decision as a threat, or they felt their existing policies would hold up well in court against the criteria set by it.
Related Cases
- New York Times v. Sullivan, 376 U.S. 254 (1964).
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Smith v. Daily Mail Publishing, 443 U.S. 97 (1979).
- Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988).
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