Magazine article Editor & Publisher

Implied Contract with Sources Upheld: Divided U.S. Supreme Court Says Newspapers Were Wrong to Divulge the Name of a Source after Reporters Had Promised Confidentiality

Magazine article Editor & Publisher

Implied Contract with Sources Upheld: Divided U.S. Supreme Court Says Newspapers Were Wrong to Divulge the Name of a Source after Reporters Had Promised Confidentiality

Article excerpt

Implied contract with sources upheld

The First Amendment gives a newspaper no more right to break a state law against implied contracts than any other citizen or entity, a sharply divided U.S. Supreme Court has ruled.

The Court found that publication of a source's name by the St. Paul (Minn.) Pioneer Press, a Knight-Ridder paper, and Cowles Media Co.'s Minneapolis Star and Tribune in 1982 violated the state's law of promissory estoppel - in the absence of a contract, obligations never explicitly assumed by the parties involved are created.

Public relations practitioner Dan Cohen, then working with the Republican gubernatorial candidate, sued the newspapers for breach of contract after they revealed in print that he was the source of information in an article about the opposing candidate.

Reporters from the two newspapers, who were among four journalists receiving copies of past court records about the opposition from Cohen, promised him the confidentiality he requested in return for the information.

Editors at the newspapers, however, independently of each other, determined that the source of the records was as important as the information itself and decided to identify Cohen as the source of the information in the articles.

The other media receiving the information were the Associated Press, which used the story but did not identify Cohen, and a local television station, which did not use the story at all.

Cohen was fired from his public relations job the next day and was subsequently awarded $700,000 in compensatory and punitive damages by a jury.

The state court of appeals upheld the $200,000 in compensatory damages but threw out the remaining punitive award.

The state Supreme Court, in turn, dismissed the compensatory damages as well, finding that "enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants' First Amendment rights."

The 5-4 U.S. Supreme Court decision for Cohen v. Cowles Media Co., written by Justice Byron R. White, noted that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."

In the Court's opinion, the "enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations. There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press."

The First Amendment, argued the majority decision, does not grant the press limitless protection against violations of laws, such as copyright protection, that in any way limit or restrict the right to report truthful information.

By reversing the lower court's finding for the newspapers, however, the Court noted it was not reinstating the $200,000 award to Cohen, and sent the matter back to the state's high court for further proceedings in light of the decision.

Two dissents accompanied the majority decision. One was written by Justice Harry A. Blackmun, who was joined by Justices Thurgood Marshall and David H. Souter. The other dissent was written by Justice Souter, who was joined by Justices Marshall, Blackmun and Sandra Day O'Connor.

Souter, in the first tangible look at the new justice's views toward the press since he joined the Court, noted in his dissent the "state's interest in enforcing a newspaper's promise of confidentiality [was] insufficient to outweigh the interest in unfettered publication of the information revealed in this case . …

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