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Cohen v. Cowles Media Co.


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501 U.S. 663 (1991), argued 27 Mar. 1991, decided 24 June 1991 by vote of 5 to 4; White for the Court, Blackmun and Souter in dissent. During the 1982 Minnesota gubernatorial race, Dan Cohen, a campaign adviser to the Republican candidate, leaked damaging information about the Democratic candidate to reporters from the Minneapolis and St. Paul newspapers after they promised not to identify him as their source. Editors at the two papers, over the objection of the reporters, broke the promise of confidentiality and identified Cohen. Cohen was fired from his job, and he sued the papers for fraudulent misrepresentation and breach of contract.

A trial court awarded Cohen $200,000 in compensatory damages and $500,000 in punitive damages. The Minnesota Court of Appeals said Cohen failed to establish a fraud claim and reversed the punitive damages award. It upheld the finding of breach of contract and the compensatory damages award. But the Minnesota Supreme Court reversed the compensatory damages award, holding that enforcement of confidentiality under contract law would violate the newspapers’ rights because identifying Cohen amounted to an editorial decision protected under the First Amendment.

The Supreme Court reversed, holding that the First Amendment does not forbid the general application of Minnesota's contract law to the press even if it has incidental effects on news gathering and reporting. Justice Byron White wrote that the newspapers’ First Amendment claim was “constitutionally insignificant” and that contract law “requires those who make certain kinds of promises to keep them” (p. 2519). The Court directed the Minnesota Supreme Court to reconsider whether Cohen's claim could be upheld under an oral contract doctrine or if Minnesota's Constitution could be interpreted to shield the press from Cohen's claim.

Justices Harry Blackmun and David Souter dissented, saying the First Amendment prohibits the use of generally applicable laws to burden societal interest in truthful political speech without a compelling state interest. Souter argued separately that laws of general applicability “may restrict First Amendment rights just as effectively as those directed specifically at speech itself” (p. 2522).

The decision could be significant. Anonymous sources may dry up. In addition, shield law protection for reporters may be diminished because of the Court's position that confidentiality promises are a matter of contract law and not a First Amendment immunity to gather and report the news.

Tim Gallimore

Subjects: Law.


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