Reply Brief — Cohen v. Cowles Media Co.

Supreme Court, U.S.

FILED

MAR 15 199)

No. 90-634

GFICE CF THE CLERK

ite

IN THE

Supreme Court of the Cuited States

October Term, 1990

DAN COHEN,

Petitioner,

vs.

COWLES MEDIA COMPANY. d/b/a Minneapolis Star

and Tribune Company, and NORTHWEST PUBLICA-

TIONS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF MINNESOTA

REPLY BRIEF OF PETITIONER

Elliot C. Kothenberg

3901 West 25th Street

Minneapolis, MN 55416

(612) 926-8185

Counsel for Petitioner

1991 — Northwest Printing Co., 3010 2nd St. No., Minneapolis. MN 55411 — 588-7506

— ——-

TABLE OF CONTENTS

Argument: Page

I. Respondents have not justified dismissal of the

Court’s grant of certiorari ..............606- l

Il. Respondents’ and amici’s briefs contain several mis-

ES GE BORE nbc vce ce eb veces ccenesucs 5

III. There is no state action in holding respondents

liable for damages caused by violating voluntary

DC een Sack de Ade ehd been an ieee kanes 8

IV. Respondents waived the assertion of First Amend-

PE een LE Oe OCT CTET TET TTT y

V. Newspaper promises to sources of information

should be subject to laws of general applicability. 11

VI. The First Amendment does not protect respondents

from the consequences of violating promises ..... 12

A. The Minnesota Supreme Court and Legislature

have recognized important state interests in en-

forcing voluntary promises ................. 12

B. There is no overriding First Amendment interest

in allowing newspapers to injure others by dis-

honoring their voluntary promises .......... 13

EELS EEE POPE POTEET OCTET PESO 17

TABLE OF AUTHORITIES

Cases: Page

AFSCME Councils 6, 14, 65 and 96 v. Sundquist, 338

N.W.2d S60 (Minn. 1963) ..ccccessevcnenvunan 2

Barrows v. Jackson, 346 U.S. 249 (1953) .......... 8

Butterworth v. Smith, 110 S.Ct. 1376 (1990) ...... 14

Capital Cities Media, Inc. v. Toole, 466 U.S. 378

(1986) . oc ccccvevcesscseusus nee 4

Christensen v. Minneapolis Municipal Employees Re-

tirement Board, 331 N.W.2d 740 (Minn. 1983) ...2, 3

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

C+) eee 13,14

Employment Div., Dept. of Human Services v. Smith,

310 S$.Cx. 1995 CIGSO) ....ccccccuueuee eee 11

Matter of Farber, 394 A.2d 330 (N.J. 1978) ....... 15

Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655

(Mian. 1969) ... csiccescecesce cuenta 13

Grouse v. Group Health Plan, Inc., 306 N.W.2d 114

(Rilem. 1968) ... . v.001686) bos eee eee 2

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ...... 1]

Jenkins v. Georgia, 418 U.S. 153 (1974) ......... 4

Landmark Communications, Inc. v. Virginia, 435 U.S.

S29 CIDR) . 0c cccéd¥ecessen see 13

Oklahoma Publishing Co. v. District Court, 430 U.S.

SOB CIGTT). «ooo 0k0seees ue0ee eee 14

Orr v. Orr, 440 U.S. 268 (1979) ............... 4,11

Railway Employees’ Dept. v. Hanson, 351 U.S. 225

(1956) . nn ccccvcvecicetcccuees 5505 en aE 8

Raley v. Ohio, 360 U.S. 423 (1959) .............. 4

Shelley v. Kraemer, 334 U.S. 1 (1948) ............ 8

Statute:

Minnesota Free Flow of Information Act, Minn. Stat. §

«re 10, 13

Other Authorities:

New York Times, July 21, 1990, at 6,col.4 ........ 2

Restatement (Second) of Contracts $ 90 (1981) ... 2

Who's Who in America (46th ed. 1990-91) ....... 14

IN THE

Supreme Court of the United States

October Term, 1990

No. 90-634

DAN COHEN,

Petitioner,

VS.

COWLES MEDIA COMPANY, d/b/a Minneapolis Star

and Tribune Company, and NORTHWEST PUBLICA-

TIONS, INC..,

Respondents.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF MINNESOTA

REPLY BRIEF OF PETITIONER

ARGUMENT

I.

RESPONDENTS HAVE NOT JUSTIFIED DISMISSAL OF THE

COURT'S GRANT OF CERTIORARI.

Cowles Media counsel Mr. Borger told the Minnesota

Supreme Court, “The central error which permeates this

entire case is that the court below perceived no constitutional

“~aension to the case.” J.A. 15. In all courts below, re-

2

spondents have argued that “any state-imposed sanction in

this case violates their constitutional rights of a free press

and free speech.” A-11-12. In a statement issued after the

decision below, Star Tribune executive editor Joel R.

Kramer said, “We are especially pleased that the court has

ruled that the decision to publish true facts relating to the

activities of a ‘political source in a political campaign’ is

one that is protected by the First Amendment.” New York

Times, July 21, 1990, at 6, col. 4, cited by respondent

Northwest Publications, brief at 37.

Now, however, both respondents repeat claims made in

their briefs opposing the petition for certiorari that the

opinion below was based on state law and not the Consti-

tution. Despite their claims, they have not given the Court

reason to hold that its grant of certiorari was improvident.

This Court has jurisdiction in this case because the

Minnesota Supreme Court heid that its decision was re-

quired by the First Amendment and not merely by state

law. After first holding that a conventional contract did not

exist, the court below then pointed out that respondents’

promises could constitute a legally enforceable implied

contract under the doctrine of promissory estoppel. Under

Minnesota law, promissory estoppel is a principle of contract

law and is based on the RESTATEMENT (SECOND) OF

CONTRACTS § 90 (1981). Grouse v. Group Health Plan,

Inc., 306 N.W.2d 114, 116 (Minn. 1981); A-11 n.5. A

later Minnesota Supreme Court decision held that Chris-

tensen v. Minneapolis Municipal Employees Retirement

Board, 331 N.W.2d 740 (Minn. 1983), cited below at A-10,

“augmented the contract approach to include the closely

related doctrine of promissory estoppel.” AFSCME Coun-

cils 6, 14, 65 and 96 v. Sundquist, 338 N.W.2d 560, 566

3

(Minn. 1983). Christensen held for its plaintiff on the

grounds of promissory estoppel even though he based his

pleadings and arguments on violation of his contract with-

Out specific reference to promissory estoppel. 331 N.W.2d

at 743, 745.

Christensen also emphasized that “promises rendered

binding through estoppel are entitled to the normal enforce-

ment remedies of general contract law.” 331 N.W.2d at 750.

Mr. Cohen’s award of compensatory damages upheld by the

Minnesota Court of Appeals also would be appropriate for

the violation of a contract implied through promissory

estoppel.

Despite Mr. Cohen's injuries from reliance upon re-

spondents’ promises, the court below regarded itself as

bound by the First Amendment in determining that respond-

ents would not be liable in an implied contract with Mr.

Cohen. Its constitutional analysis began by observing that

we have not up to now had to consider First

Amendment implications. But now we must. Under

a promissory estoppel analysis there can be no neu-

trality towards the First Amendment. In deciding

whether it would be unjust not to enforce the promise,

the court must necessarily weigh the same considera-

tions that are weighed for whether the First Amend-

ment has been violated. The court must balance the

constitutional rights of a free press against the common

law interest in protecting a promise of anonymity.

A-12-13.

The Minnesota Supreme Court then held, “Of critical

significance in this case, we think, is the fact that the

promise of anonymity arises in the classic First Amendment

context of the quintessential public debate in our demo-

4

cratic society, namely, a political source involved in a

political campaign.” A-13.

Finally, the opinion below specifically held that Mr.

Cohen could net recover in this case because of the First

Amendment. “We conclude that in this case enforcement

of the promise of confidentiality under a promissory estoppel

theory would violate defendants’ First Amendment rights.”

A-13-14.

In the course of its reasoning, the opinion below cited

seven decisions of this Court and one Court of Appeals case

interpreting the First Amendment. A-12, n.6 and 7, A-13-14.

Still, as in its brief in opposition to the petition for cer-

tiorari, respondent Northwest Publications, at 24, claims that

the Minnesota Supreme Court's holdings on promissory

estoppel and the First Amendment are dicta because the

promissory estoppel issue was not previously argued. Re-

eardless, it is irrelevant whether or not a party argued an

issue below when the state court actually considered and

decided it. Jenkins v. Georgia, 418 U.S. 153, 157 (1974);

Orr v. Orr, 440 U.S. 268, 274-75 (1979). There can be

no question as to the proper presentation of a federal claim

when the highest state court passes on it. Raley v. Ohio,

360 U.S. 423, 436 (1959). None of these cases even sug-

gested that this longstanding practice “carries constitutional

overtones,” as claimed by respondent Cowles Media Co.,

brief at 13-14.

Having granted certiorari, the Court has no reason now

to regard its order as improvident or to remand the case

for clarification. Unlike Capital Cities Media, Inc. v. Toole,

466 U.S. 378 (1984). which involved a state court order

unaccompanied by reasons, the grounds for the Minnesota

Supreme Court's decision were explicitly stated in its opin-

5

ion. Respondents have not shown that the full record of this

Case requires a reversal of the certiorari granted on the

basis of the opinion below. On the contrary, the record

demonstrates the newspapers’ emphasis of First Amendment

issues from their initial answers through their oral arguments

before the Minnesota Supreme Court.

The decision of the Minnesota Court of Appeals held

that the First Amendment did not protect respondents’

violations of their promises to Mr. Cohen because of the

absence of state action and because respondents waived

any First Amendment claims. A-28-31, A-35-37. In con-

cluding that enforcement of respondents’ promises would

violate their First Amendment rights, the opinion below

did not even address the issues of state action and waiver.

Its failure to consider such important First Amendment

issues, far from warranting a reversal of the grant of cer-

tiorari as claimed by respondent Northwest Publications

(brief at 23), only confirms that the opinion below erred

in its constitutional analysis.

RESPONDENTS’ AND AMICI’S BRIEFS CONTAIN SEVERAL

MISSTATEMENTS OF FACT.

Respondents’ and amici’s briefs have important factual

errors. First, amici claimed repeatedly (brief at 7, 18, 19)

that Mr. Cohen was “attempting to use the media to dis-

seminate misleading information” to “smear” a candidate.

Respondent Northwest Publications, bricf at 32, accused

him of engaging in a “dirty trick.”

However, all that Mr. Cohen provided respondents, after

receiving their promises of confidentiality, were authentic

6.

copies of public court records. A-3. Neither the St. Paul

Pioneer Press reporter nor its editors made any such accu-

sations against Mr. Cohen at the time of their transaction

with him. Instead, as discussed in petitioner’s brief at 6,

the newspaper’s editors in an editorial said that the docu-

ments were relevant and provided the public with informa-

tion it deserved to know. The editorial took the position

that the source was irrelevant and said that the candidate

and her campaign should have “informed the public them-

selves earlier and confronted the issue squarely.” PI.Ex.

29, R. 218-19.

Their brief notwithstanding, the only Northwest Publica-

tions employee at the trial to use the phrase “dirty trick”

was its past executive editor and current vice president,

John Finnegan, who used it not to criticize Mr. Cohen but

to condemn the violatien of a journalistic promise of con-

fidentiality. PI.Ex. 76, R. 1590-91, petitioner’s brief at 9.

Northwest Publications’ assertion, brief at 32, that it

“had independent confirmation of petitioner's role” before

it published his name has no support whatsoever in the

record. Neither executive editor David Hall nor reporter

Bi!! Salisbury nor any other editor or reporter of the Pioneer

Press made any such claim in their testimony.’

1Far from confirming that petitioner was the source of the documents, as

claimed by the Northwest Publications brief at 9, the Whitney cam-

paign director actually told the Pioneer Press that he knew nothing of

Mr. Cohen's involvement. R. 1437. After being informed of their

reporter's promise of confidentiality to Mr. Cohen, Star Tribune editors,

independently of the Pioneer Press, assigned a reporter, David Ander-

son, to “follow up on the story” and to contact members of the guberna-

torial campaigns. A-23-24. (Mr. Anderson, was the author of the book

on investigative reporting discussed in petitioner's brief at 30). Cowles

Media. brief at 5, claimed that Mr. Anderson contacted campaign worker

Gary Flakne who allegedly said that he had obtained the court documents

for Mr. Cohen. Mr. Flakne, however, testified that Mr. Cohen did not ask

him to pick up these records, and he denied telling this to Mr. Anderson

>

As pointed out in petitioner's brief at 4, Pioneer Press

executive editor David Hall quickly decided to disclose

Mr. Cohen’s identity after learning of his reporter's promise.

His testimony does not support the Northwest Publications

claim, brief at 37, that his decision was “difficult and even

agonizing,” as demonstrated by the following response to a

question from his own attorney.

Q. Mr. Hall, would you please tell us why it is you

chose not to identify Mr. Cohen in some other way

without using his name?

A. Honestly, I don’t think that we ever considered

doing it another way other than using his name. If we

did, if we did talk about that, I don’t recollect it. R.

1440.

The Minnesota Court of Appeals also found that Northwest

Publication editors “did not engage in involved deliberations

before deciding to disclose Cohen's identity.” A-25.

Respondent Cowles Media Co., brief at 34-35, errone-

ously claims that the jury awarded Mr. Cohen damages for

“injury to reputation, humiliation and embarrassment.” In

fact, the jury awarded nothing for such injuries. The trial

court specifically instructed the jury that damages for emo-

tional distress were not recoverable in this case. R. 1859.

Mr. Cohen was fired from his job the day the newsparer

articles identifying him — and in the Star Tribune’s case

his employer as well — were published, a fact respondents

did not dispute in the Minnesota appellate courts. A-6, A-26.

or even talking with him. R. 1595-97. Mr. Cohen testified that he did not

even know of the existence of the documents when Mr. Flakne signed out

the records. R. 147. Mr. Anderson's account of the alleged conversation

with Mr. Flakne was never published and Lori Sturdevant, who wrote

the Star Tribune article identifying Mr. Cohen, did not agree that others

had identified Mr. Cohen. R. 1616-17, 1647. The jury should be

deemed to have resolved this factual dispute in Mr. Cohen's favor.

Although the Minnesota Supreme Court mentioned the alleged Flakne

comment to the Star Tribune (A-4), the opinion below made no refer-

ence to it in its discussions of the legal issues of fraud, contract, or

implied contract and the First Amendment.

8

The Minnesota Court of Appeals held that the loss of Mr.

Cohen’s employment was a reasonably foreseeable conse-

quence of the dishonoring of respondents’ promises to him.

A-43. The jury in its special verdict awarded compensatory

damages in an amount of $200,000 to “fairly and adequately

compensate the plaintiff Dan C~hen for his loss.” A-75.

An expert witness testified that Mr. Cohen’s financial losses

resulting from respondents’ wrongful conduct exceeded

$725,000. R. 1115.

THERE IS NO STATE ACTION IN HOLDING RESPONDENTS

LIABLE FOR DAMAGES CAUSED BY VIOLATING VOL-

UNTARY PROMISES.

Respondents do not dispute that there was no govern-

mental coercion or any other state involvement in their vol-

untary promises to Mr. Cohen in exchange for desired

information. They claim, however, that holding them liable

for damages caused by the violation of their voluntary agree-

ments constitutes state action invoking their putative rights

under the First Amendment. Previous decisions of this

Court do not support the assertion that a party may thus

seek refuge from the violations of its own voluntary prom-

ises. Contrary to the present case, the cases cited by re-

spondents involved attempts by third persons either to

seek judicial enforcement of restrictive covenants or to

enjoin the application of a labor agreement against the

wishes of those who were the actual parties to the respective

agreements at issue in those actions. See Barrows v. Jackson,

346 U.S. 249 (1953); Shellev v. Kraemer, 334 US. 1

(1948); Railway Emplovees’ Dept. v. Hanson, 351 U.S.

225 (1956).*

2Contrary to Northwest Publications’ claim (brief at 43), | away vd raised

the state action issue at the beginning of the First Amendment discussion

in his petition for certiorari, at 12, and referred the Court to the specific

pages in which the Minnesota Court of Appeals held that there was

no state action (A-28-31).

9

IV. -

RESPONDENTS WAIVED THE ASSERTION OF FIRST AMEND-

MENT CLAIMS.

Respondent Cowles Media, brief at 18, claimed that its

journalists did not regard the promise of confidentiality as

creating an obligation to Mr. Cohen. On the contrary, its

reporter, Lori Sturdevant, believed that identifying Mr.

Cohen violated the promise she had made to him. R. 1647.

She objected so strongly to the decision to dishonor her

promise that she refused to allow her name to be used on

the Star Tribune article identifying Mr. Cohen. R. 452;

J.A. 1. Moreover, Star Tribune editors also indicated that

her promise to Mr. Cohen imposed obligations upon the

newspaper. These editors instructed Ms. Sturdevant to ask

Mr. Cohen to release the Star Tribune from what managing

editor Frank Wright, who was ultimately responsible for

the decision to identify the petitioner (Cowles brief at 6),

testified was “this agreement.” Ms. Sturdevant made this

request to Mr. Cohen two or three times in repeated tele-

phone calls, but each time he refused to release the Star

Tribune from its agreement with him. A-24, R. 1490.

Respondent Northwest Publications, brief at 47, claimed

that it did not waive the assertion of First Amendment

claims on the grounds of an alleged internal policy of its

newspaper requiring reporter promises of confidentiality

to be approved by an editor. However, its reporter, Mr.

Salisbury, testified that reporters rather than editors deal

with the public to gather information and that, regardless of

whatever written policies may exist. grants of confidentiality

are made by reporters without involvement by editors. R.

10

417, 423-24. Ms. Sturdevant also testified that she had the

authority to promise confidentiality to sources of informa-

tion without first securing the approval of Star Tribune

editors. R. 449, 451-52. Neither the jury nor any court

below found that the reporters’ promises to Mr. Cohen were

unauthorized by their newspapers.

As pointed out by respondent Northwest Publications,

brief at 5, and the Minnesota Court of Appeals, A-22, Mr.

Cohen first contacted both newspaper reporters by telephone

on October 27, 1982, before meeting with them separately

later in the day. In the telephone conversations, Mr. Cohen

told each reporter that he would give him or her material

which may relate to the election if “we can reach an agree-

ment as to the basis on which | would provide this informa-

tion to you.” In the time between the telephone call and

the meetings in their offices, the reporters had ample op-

portunity to contact their editors regarding a prospective

agreement with Mr. Cohen.

Respondent Northwest Publications, brief at 46-47, also

claimed that a promise of confidentiality to a source does

not waive an asserted right to publish his name because

holding journalists to their promises allegedly would

infringe the public’s right to know. However, the Pioneer

Press’ own employees, Mr. Salisbury and former executive

editor Mr. Finnegan, testified that exposing sources promised

confidentiality would discourage other potential sources

from providing information and would seriously impair the

flow of news to the public. Moreover, both respondents

argued to the Minnesota Legislature that the “public’s right

to know” required adoption cf the Minnesota Free Flow

of Information Act to protect journalists’ promises of con-

fidentiality. See petitioner's brief at 8-10, 27-29: A-18 n.1.*

11

Vv.

NEWSPAPER PROMISES TO SOURCES OF INFORMATION

SHOULD BE SUBJECT TO LAWS OF GENERAL APPLIC-

ABILITY.

Amici, brief at 8-9, admit that the First Amendment does

not grant newspapers immunity from general laws con-

cerning their commercial agreements. Without addressing

the First Amendment holdings of Employment Div., Dept.

of Human Resources v. Smith, 110 S.Ct. 1595 (1990),

petitioner's brief at 23-24, amici claim an exemption for

agreements made to gather news.

Despite amici’s claims, the First Amendment does not

justify a distinction between general commercial agreements

and agreements with sources of information. Newspapers do

not have a special privilege of access to information. They

have no First Amendment right to compel private persons

to supply information. Houchins v. KQED, Inc., 438 U.S.

i, 10-11 (1978). To obtain much of the news, the press

must promise corfidentiality to sources of information.

The competitive pursuit of inforination is integral to the

business operations of newspapers. Journalism School Dean

Arnold Ismach testified that media organizations “are in

the business of acquiring information. That is their trade.”

R. 694. The trial court found that the relationship between

journalist and source of information is a commercial one;

3Respondent Cowles Media, brief at 18, claimed that the Minnesota Court

of Appeals’ holding and analysis of the issue of waiver, A-35-37, is not

properly before the Court because it was first raised in a brief before

that court. However, as discussed previously, it is irrelevant when a

federal question was raised in a court below when the question was

actually considered and decided. Orr v. Orr, 440 U.S. 268, 274-75

(1979).

12

the Minnesota Court of Appeals held that newspapers

should no more be exempt from the law for violating

promises to sources than for violating commercial agree-

ments for other goods and services. A-66, A-33.

Vi.

THE FIRST AMENDMENT DOES NOT PROTECT RESPONDENTS

FROM THE CONSEQUENCES OF VIOLATING PROMISES.

Respondents refuse to acknowledge any obligation, apart

from their own discretion, to honor promises they volun-

tarily-make to procure information. Indeed, respondent

Northwest Publications, brief at 34, asserts that “the news-

papers did nothing unlawful or improper in securing the

information” from Mr. Cohen through dishonored promises.

Contrary to respondents’ claims, there are important state

and First Amendment interests in enforcing voluntary

promises.

A. The Minnesota Supreme Court and Legislature have

recognized important state interests in enforcing voluntary

promises.

The opinion below recognized an important state interest

in enforcing voluntary promises which in some cases could

even Overcome what it regarded as First Amendment rights.

It pointed out that the doctrine of promissory estoppel, to

imply contracts where promises induce action by promisees,

is “well-established in this state.” A-10. At the beginning

of its consideration of First Amendment issues, the opinion

below again recognized a state and common law interest

in enforcing voluntary promises against which must be

balanced perceived “constitutional rights of a free press.”

A-13. After it concluded that enforcement of respondents’

13

promises in this case would violate their First Amendment

rights, the Minnesota Supreme Court declared that in other

instances the state’s interest in enforcing promises to sources

may outweigh First Amendment considerations. A-14.

In fact, the Minnesota Legislature, in adopting the Minne-

sota Free Flow of Information Act, Minn. Stat. § 595.022,

has determined that there is a special state interest in pro-

tecting promises of confidentiality to sources to promote

the free flow of information to the public. See petitioner's

brief at 10, 29; A-35.'

Another recent Minnesota Supreme Court decision recog-

nized a state concern for honesty in dealing with others. In

rejecting a proposed interpretation of a statute dealing with

the tobacco industry, that court held that “we would have

to assume that Congress intended the Act to be a license to

lie, an assumption both uncharitable to Congress and viola-

tive of this state’s deep concern for honesty as well as

health.” Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d

655, 662 (1989).

B. There is no overriding First Amendment interest

in allowing newspapers to injure others by dishonoring

their voluntary promises.

As pointed out in petitioner’s brief at 26-27, newspapers

do not have an unlimited right to publish truthful informa-

tion. Several other cases cited by respondents also limited

First Amendment protection to the lawful acquisition of

information. Landmark Communications, Inc. v. Virginia,

435 U.S. 829, 837 (1978): Cox Broadcasting Corp. vy.

4In the Jamieson case referred to by respondent Cowles Media Co., brief

at 38, a Mimnesota trial court held that the Minnesota Free Flow of

Information Act did not protect sources who defame others. Joint

Minnesota Supreme Court appendix at A-570. Mr. Cohen, in contrast,

merely supplied authentic copies of public court records.

14

Cohn, 420 U.S. 469, 496, 497 n.27 (1975); Oklahoma

Publishing Co. v. District Court, 430 U.S. 308, 311 (1977);

Butterworth v. Smith, 110 S.Ct. 1376, 1381 (1990).

The requirement that punishment for the publication of

truthful information must further a state interest of the

highest order only applies in cases where the information

was lawfully obtained. Butterworth vy. Smith, 110 S.Ct.

1376, 1381 (1990). Butterworth stressed that its holding

was limited to a journalist’s right to divulge information in

his possession before testifying to a grand jury and did not

deal with his right to publish information which he obtained

as a result of his participation in the proceedings of the

grand jury. /d.

According to respondent Cowles Media Co., brief at 30

n.7, information obtained through violating state laws

against theft would be “not lawfully acquired.” Information

procured by violating contracts implied through a state’s

law of promissory estoppel similarly should be regarded

as unlawfully acquired. As pointed out in petitioner’s brief

at 24-25, no constitutional protection exists for lies in the

form of defamation or the deliberate violation of promises.

Instead, the Court has placed a high value on protecting

expectations based upon promises. See petitioner’s brief

at 19.

The testimony of Mr. Finnegan® and Mr. Salisbury refutes

amici’s claim, brief at 22, that there is no “evidence what-

soever which even remotely suggests” that sources will not

continue to give information to the media if this Court

grants journalists a right to unilaterally violate promises of

5Mr. Finnegan is a member of the board of directors of amicus American

Society of Newspaper editors. WHO'S WHO IN AMERICA 1036 (46th

ed. 1990-91).

15

confidentiality. See petitioner’s brief at 8-9, 28-29. More-

over, amici’s argument contradicts the position of many of

these same organizations in cases where they sought to

protect their confidential sources. For example, amicus New

York Times Co. as an appellant iis Matter of Farber, 394

A.2d 330, 333 (N.J. 1978), argued that, if confidential

sources were to be exposed through a court order, “news-

gathering and the dissemination of news would be seriously

impaired, because much information would never be forth-

coming to the news media unless the persons who were

the sources of such information could be entirely certain

that their identities would remain secret.” Amici supporting

the New York Times in Farber who are also parties to the

amicus brief in this case include the Times Mirror Co.,

Associated Press, Gannett Co., American Society of News-

paper Editors, and the American Newspaper Publishers

Association. 394 A.2d at 331-32.

Amici, brief at 20-21, speculate about possible future

cases if respondents are held liable for the consequences

of violating their promises. When a similar argument was

made in respondents’ motion for judgment notwithstanding

the verdict, the trial court rejected the premise that the ap-

propriate solution to the possibility of unfounded accusa-

tions is to bar the availability of redress to persons with

meritorious claims who have been damaged by unlawful

conduct. A-67.

In this and any future cases, media organizations making

promises of confidentiality have several options consistent

with their agreements. They can run the story without re-

vealing the source like the Asseciated Press. they can decline

16

to run the story at all like WCCO-TV, or they can refer

to the source by type (such as “Republican activist” here)

without using his or her specific name. Both the Associated

Press and WCCO-TV honored their promises to Mr. Cohen

even though they knew that their competition also had the

story. R. 394, 398, 402-403, 505-506. Respondents’ excuses

in their briefs for identifying Mr. Cohen despite their

promises could be used to attempt to evade obligations to

any other person promised confidentiality. See testimony of

Dean Ismach, R. 773-75.

Even respondents’ own expert witness, David Lawrence,

Jr., conceded that respondenis did not follow the “guiding

principle” of integrity in this case. R. 1417.

Respondent Cowles Media Co., brief at 21-22, and amici,

brief at 17, claim that there is no need to civilly enforce

reporter-source agreements because the media purportedly

honor the ethical obligations of promises. The Minnesota

Court of Appeals disagreed. —

The specter of a large damage award is a much more

effective incentive for a publisher to honor a promise

of confidentiality than the fear of criticism from other

members of the press. Indeed, any such fear of pro-

fessional criticism in this case was apparently insuffi-

cient to convince appellants to abide by their promises.

A-34-35.

The trial court also found this argument unpersuasive.

The newspapers’ assertion that “severe criticism from

fellow professionals and skepticism, loss of credibility

and trust from potential or existing sources” provides

sufficient deterrent against journalistic excesses rings

not only unrealistic but disingenuous. A-67.

17

As Minnesota Supreme Court Justice Lawrence Yetka

said in his dissent, “The simple truth of the matter is that

the appellants made a promise of confidentiality to Cohen

in consideration for information they considered news-

worthy. That promise was broken and, as a direct conse-

quence, Cohen lost his job.” The newspapers should -be

held responsible for the injuries they caused Mr. Cohen.

A-14.

This Court should reverse the decision below because,

said Justice Yetka, “the news media should be compelled

to keep their promises like anyone else.” A-15.

CONCLUSION

The judgment of the Minnesota Supreme Court should

be reversed and the judgment of the Minnesota Court of

Appeals should be affirmed together with interest in accord-

ance with the law of Minnesota.

Respectfully submitted,

ELLIOT C. ROTHENBERG

Counsel for Petitioner

3901 West 25th Street

Minneapolis, MN 55416

(612) 926-8185

Dated: March 15, 1991.