Cohen v. Cowles Media Co.

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 that he 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 their stories 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 it violated 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 the only 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 party is 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 had not 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 avoid an 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 unjust not to enforce the agreement. As they began their analysis, the court stated that to avoid injustice, the First Amendment rights to a free press must be weighed 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 the defendants' 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.