Cohen v. Cowles Media Co.

In his dissenting opinion, Justice Blackmun disagreed with the line of decisions which the majority used as the "controlling precedent." He supported the Minnesota 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) was not comparable to this case. In that case, he wrote, the Court had found the First 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 more prudently 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.