Amicus Curiae Brief — Cohen v. Cowles Media Co.

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TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ..............ccccccccccccssceesceescees l

SUMMARY OF ARGUMENT. ................cccccccsssssccssceseeseees 3

GEPUIEPEIIIITEE cetennstenencstscnscnccescssccscececsccocsecesesesesoceecsees 6

1. JUDICIAL ENFORCEMENT OF AN ETHICAL

OBLIGATION NOT TO PUBLISH TRUTHFUL

INFORMATION ABOUT POLITICAL

CAMPAIGNS VIOLATES THE FIRST

nn satienichenieesiesteeetenssensnenennsnnsstensnteceeancoce 6

dupeenevesnsscnsonsessuscssssseoeeesssotenesncocsosceses ll

i. Unlike Typical Promissory Estoppel

Situations, Reporter-Source

a “ oy ee Upon An

xpectation t The Understanding Is

Legally Enforceable ..............cccccccssseseeseeee 12

ui. Reporter-Source Understandings Do Not

Involve A “Meeting Of The Minds” ..... 15

iii. Reporter-Source Understandings Do Not

.__) Involve The Type Of Interest Which

Promissory Estoppel Is Intended To

Protect; Instead, Unde

Create Ethical, Rather Than y

Enforceable, Obligations ............c..0... 16

C. First Amendment Interests Are Furthered

By Protecting The Dissemination Of

Truthful Information To The Public,

Particularly Where, As Here, That

Information Involves ‘Government Affairs .

D. Application Of The Test A In

Analogous Areas, Like Invasion Of Pri

Cases, Demonstrates That Civil

Enforcement Of Reporter-Source

Understandings Is Comatitutiele

Impermissible

PSS ESET EEE TEESE EEE EEE EEEE EEE EEE HEHE

2. EVEN ASSUMING, ARGUENDO, THAT

LIMITED ENFORCEMENT OF REPORTER.

SOURCE UNDERSTANDINGS IS

CONSTITUTIONALLY PERMISSIBLE, THE

FIRST AMENDMENT REQUIRES

APPROPRIATE SAFEGUARDS TO ENSURE

THE “BREATHING SPACE” ESSENTIAL TO

THE EXERCISE OF FREE SPEECH AND

SED GENEEED cxenninsmessssicennsensemmessnnbiattneneiseenes

CARUSO. §=—=»««scaunnesaensvesenmusiinnniinnneennnsionnnnassanauesisinieune

18

iil

TABLE OF AUTHORITIES

CASES: Page(s)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

EERE IEA Coren eeeee eee Cee 27

Associated Press v. N.L.R.B., 301 U.S. 103

SUID simhiniehlibatnihpiaiesceaticinaaianieee aia incase s

Associated Press v. United States, 326 U.S. 1

IIT Siete cient adhataaeiaete bine iaiiaeadaaiaiil tah ia alcataas 8

Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal.

Rptr. 29 (1979) ......... PEASE GI ICS On 13

Branzburg v. Hayes, 408 U.S. 665 (1972) ............. 18

Brown v. Hartlage, 456 U.S. 45 (1982) ................. 10

Buckley v. Valeo, 424 U.S. 1 (1976) «0.0.0.0... 10

Cohen v. Cowles Media Co., 445 N.W.2d 248 (Ct.

CA. TIE cxscnswintinisicstaneienninnntianindiemmmnennio 24

Cohen v. Cowles Media Co., 457 N.W.2d 199 (Minn.

STII sini 12,13,16,19,28

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

GSU, snivaeesteunesieieeiatiedaieisinaciteiichiaiaiieaacedicnls 9,19,20

Doe v. American Broadcasting Co., 152 A.D.2d 482,

543 N.Y.S.2d 455 (1969) ..............ccc...ccccceeeees- 13

Dombrowski v. Pfister, 380 U.S. 479 (1965) .......... 20

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

— f ) & § — eee 7

Eu v. San Francisco County Democratic Central

Committee, 489 U.S. 214, 109 S. Ct. 1013

ES eee ee 10

Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct.

EE es 19,24,29

Gertz v. Robert Welch, Inc., 418 U.S. 323

RE ee enn OD 19,26

ean v. American Press, 297 U.S. 233

ER a Oe 8

Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657, 109 S. Ct. 2678 (1989) ............ 10,26

Hendry v. Conner, 303 Minn. 317, 226 N.W.2d 921

ES ee en ee 24

Huskey v. National "7 Co., Ine., 632 F.

Supp. 1282 (N.D. Il]. 1986) ..................ccceeeeeeee 13

iV

Table of Authorities Continued

Page

Landmark Communications, Inc. v. Virginia, 435

BR Ce EEE eiictticicetneresnicieininnemnnnnminns 19

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

eee 9,21,22,23

Mills v. Alabama, 384 U.S. 214 (1966) ..............00 10

Minneapolis Star and Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575

STII ccisiescthiedtinenneccenienaidsisbenieinnnmmmenianeaeees 8

New York Times Co. v. Sullivan, 376 U.S. 254

GEIEED cencetpecentsenseumsnensnsaneeseseeniememaneuneecneste 7,20,25,28

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

Be CUE cccnnniscenanmeniniesntininuemitmanmeenibetonsinanns 9,19

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

ee CIEE centensesssnscaneinenensninmneeminemensenemmseses 26

Poteet v. Roswell Daily Record, Inc., 92 N.M. 170,

584 P.2d 1310 Ct. aa 28

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

BD GR cecenencnssnsentesninnieninnnimessscemestuncensemnnse 18

Ruzicka v. Conde Nast Publications, Inc., 733 F.

Supp. 1289 (D. Minn. 1990) ...............000. 13,22,24,27

Smith v. Daily Mail Publishing Co., 443 U.S. 97

TOUT cxcnctndisnsnnccnsieqemunennmmemenieimentns 7,10,19,24,25,29

Snepp v. United States, 444 U.S. 507 (1980) ........ 11

Stromberg v. California, 283 U.S. 359 (1931) ....... 10

Stubbs v. North Mem. Medical Center, 448 N.W.2d

FD ee 24

Tashyian v. Republican Party of Connecticut, 479

Se ED CID ccseiernicienteittarntstcesitnatinicvennsinennsctntenses 6

Virelli v. Goodson-Todman Enterprises, Ltd., 142

A.D.2d 479, 536 N.Y.S.2d 571 (1989) ............ 13,29

Wainwright v. Goode, 464 U.S. 78 (1983) ............. 12

CONSTITUTIONAL PROVISIONS:

FS ee passim

U.S. Const. amend. XIV .................... Siiisdidicigtaliiinia 6

Table of Authorities Continued

OTHER AUTHORITIES:

1 A. Corbin, Corbin on Contracts (1963) ...............

2 A. Corbin, Corbin on Contracts (1950) ...............

T. mast The System Of Freedom Of Expression

a

IT Cecsshidhatiasassbastaieieitieasaincnaipiasiimnsanmaltinns

Blasi, The Newsman’s Privilege: An Empirical

Study, 70 Mich. L. Rev. 229 (1971) ...............

Kase, When A Promise Is Not A Promise: The Legal

C. or Journalists Who Break Prom-

ises of Con iality To Sources, 12 Hastings

Comm/Ent. L.J. 565 (1990) ..........ccc.cceccseeeneees

Smyser, There Are Sources and Then There Are

“Sourcerers,”” Soc. Resp.: Journalism, Law,

DT ee

Note, Freedom of Expression in a Commercial Con-

text, 78 Harv. L. Rev. 1191 (1965) ................

Two Leaks, But by Whom?, NEWSWEEK, July 27,

PEED ‘encsitnanesntantanetansiciitinpennsinmmanipeanacisenenstin

Restatement (Second) of Contracts, § 189 (1981) .......

Restatement (Second) of Torts §§ 569-575 (1977) ....

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-634

DAN COHEN.

Petitioner,

v.

CowLes Mepia Company, d/b/a Minneapolis Star and

Tribune Company, and NORTHWEST PUBLICATIONS, INC.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Minnesota

BRIEF OF AMICI CURIAE

ADVANCE PUBLICATIONS, INC.,

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,

AMERICAN SOCIETY OF NEWSPAPER EDITORS,

ASSOCIATED PRESS,

THE COPLEY PRESS, INC.,

GANNETT COMPANY, INC.,

NEWSLETTER ASSOCIATION,

THE NEW YORK TIMES COMPANY, AND

THE TIMES MIRROR COMPANY,

IN SUPPORT OF RESPONDENTS*

STATEMENT OF INTEREST

Advance Publications, Inc., directly and through subsid-

lary corporations, publishes newspapers in 22 cities

* Written consent of all parties has been filed with the Clerk of the

Court, as required by Supreme Court Rule 37.

throughout the United States, operates 16 cable systems

across the country, publishes 15 magazines with nationwide

circulation, and owns a major national book publishing

company.

The American Newspaper Publishers Association is a

nonprofit trade association representing about 1,400 news-

papers. Membership constitutes about 90 percent of the

total daily and Sunday newspaper circulation, and a sub-

stantial portion of the non-daily newspaper circulation, in

the United States. These newspapers have the basic func-

tion of gathering and publishing news and information.

ANPA brings to the case the perspective of a substantial

segment of the nation’s newspapers, who are directly af-

fected by the Court’s decisions in the area of First Amena-

ment protections.

The American Society of Newspaper Editors was

founded over 50 years ago. It is a nationwide, professional

organization of more than 900 persons who hold positions

as directing editors of daily newspapers throughout the

United States. The purposes of the Society include assist-

ing journalists in providing an unfettered and effective

press in the service of the American people.

Associated Press, the world’s largest news gathering

organization, is a mutual news cooperative organized under

the Not-for-Profit Corporation Law of the State of New

York. Associated Press gathers and distributes news of

local, national and international significance to its member

newspapers and broadcast stations in the United States

and throughout the world.

In carrying out its vital role of informing the public,

Associated Press and its members have a significant in-

terest in protecting the accurate reporting of matters of

public concern and ensuring that sanctions are not imposed

on the press for so reporting. They are also vitally con-

cerned with maintaining the integrity of the editorial func-

tion, and preventing intrusion into that function that may

result in obstructing public access to information key to

the political process.

The Copley Press, Inc. publishes five daily newspapers

in California—The San Diego Union, San Diego Tribune,

The Daily Breeze, The News-Pilot and The Outlook—whose

combined circulation exceeds 500,000 copies daily, as well

as seven daily newspapers in Illinois, and operates an in-

ternational news service.

Gannett Company, Inc. is a nationwide news and infor-

mation company that publishes 82 daily newspapers (in-

cluding USA Today), a variety of non-daily publicztions

(including USA Weekend, a newspaper magazine) and op-

erates 10 television stations, 15 radio stations, Gannett

News Services, and the largest outdoor advertising com-

pany in North America.

The Newsletter Association is the inter*ational trade

association representing 850 publishers of newsletters and

specialized information services. The Newsletter Associa-

tion has a long-standing commitment to the free exchange

of information and opinion through the written word as

protected by the First Amendment.

The New York Times Company publishes 33 newspa-

pers, including The New York Times, a daily newspaper

with national circulation of 1.15 million daily and Sunday

circulation of over 1.7 million. The Company also publishes

17 magazines and owns five television and two radio sta-

tions.

The Times Mirror Company publishes the Los Angeles

Times, a newspaper with a circulation of more than 1.2

million daily and more than 1.5 million on Sunday. Times

Mirror also publishes seven other newspapers including

Newsday, the Baltimore Sun, and The Hartford Courant,

with a combined Sunday circulation of more than two mil-

lion copies.

SUMMARY OF ARGUMENT

The relationship between reporters and their sources has

historically been one of mutual trust, which gives rise to

mutual ethical obligations: in providing information to a

reporter, the source has an ethical obligation to be truthful

and the reporter, in turn, has an ethical obligation to keep

the source’s identity confidential, if the source so desires.

Petitioner is asking this Court to hold that these ethical

obligations between reporters and their sources are legally

enforceable obligations, disregarding the distinction be-

tween these ethical understandings and typical commercial

agreements, as well as the First Amendment interests

which would be adversely affected by such a decision.

Amici curiae urge this Court to reject Petitioner’s request

and instead hold that the judicial enforcement of ethical

obligations between reporters and their sources would vi-

olate the First Amendment in the circumstances presented

here, where there was no reasonable expectation that a

civilly enforceable agreement was being entered into.

The principle upon which Petitioner’s case ultimately

rests - that the media are not exempt from the application

of general laws, such as tax, contract, and labor laws -

has no relevance here. This principle applies only to non-

discriminatory regulations of commercial activities, which

have no more than an incidental effect on the news gath-

ering and dissemination process. Government actions which

directly impact on the media’s ability to gather and dis-

seminate truthful information, however, fall within the am-

bit of the First Amendment. (See Section 1(A), infra.)

Accordingly, this Court must evaluate the propriety of

applying general promissory estoppel principles to re-

porter-source understandings by weighing the interests in

enforcing such understandings against the First Amend-

ment interests in gathering and disseminating truthful in-

formation to the public. (Jd.) That analysis demonstrates

Respondents should prevail here.

First, there is no significant state interest, let alone a

compelling one, in enforcing reporter-source understand-

ings. These understandings do not have the characteristics

common to civilly enforceable agreements, because they

are not based on an expectation that they are legally en-

forceable agreements. (See Section 1(B\Xi), infra.) More-

over, by their very nature, such understandings do not

involve a ‘‘meeting of the minds,”’ because they are typ-

ically vague, do not have precisely defined or understood

terms, and involve situations where one party to the

“agreement’”’—the reporter—cannot know what informa-

tion. is being provided (and, therefore, cannot know what

is being agreed to) until after an assurance of confiden-

tiality has been made. Thus, reporter-source understand-

ings are clearly not intended to be nor can they reasonably

be interpreted to be within the realm of general promis-

sory estoppel law. (See Section 1(B\ii), infra.)

Moreover, reporter-source understandings do not involve

the type of interests which promissory estoppel law is

designed to protect. Here, Petitioner’s only interest is the

purported right to engage in a political smear campaign

without taking responsibility for his action. That interest

is no interest at all. In any event, the obligation which

arises from the reporter-source relationship is an ethical

one, the enforcement of which comes from self-policing

mechanisms, rather than government mandate. (See Sec-

tion 1(B\Xiii), infra.)

Second, there are First Amendment interests which

would be adversely affected by the judicial enforcement of

such understandings. Petitioner is seeking to inhibit the

dissemination of truthful information in contravention of

well-established principles protecting the dissemination of

such information. (See Section 1(C), infra.) Moreover, the

information he seeks to restrain involves the conduct of

government affairs, which is at the very core of the First

Amendment’s protection. (Jd.) Civil enforcement of re-

porter-source understandings, and the concommitant liti-

gation which would ensue, would unquestionably chill the

dissemination of such information. (Jd.)

The strong public interest in protecting the truthful dis-

semination of information about government affairs out-

weighs the minimal or non-existent interest in enforcement

of reporter-source understandings in this case. Conse-

quently, this Court should hold, as it has in analogous

cases, that state interference with protected speech, by

civilly enforcing reporter-source understandings, is consti-

tutionally impermissible in the circumstances presented

here. (See Section 1(D), infra; see also note 14, infra.)

In the alternative, if this Court believes that enforce-

ment of such understandings is permissible in some in-

stances, amici urge this Court to adopt strict requirements

which must be satisfied to pursue promissory estoppel ac-

tions against the media to protect the First Amendment

interests in gathering and disseminating truthful infor-

mation about political affairs to the public. (See Section

2, infra.) Although adoption of these safeguards would not

eliminate the constitutional concerns raised by amici, if

this Court permits any promissory estoppel actions to be

pursued, these devices would provide at least sorm.e meas-

ure of protection for the gathering and dissemination of

information under the First Amendment and retard the

growing proliferation of claims asserting a wide variety of

“understandings,” including purported agreements to keep

identities hidden or masked, to allow pre-publication review

of articles, or to give a source “favorable coverage.”

ARGUMENT

1. JUDICIAL ENFORCEMENT OF AN _ ETHICAL

OBLIGATION NOT TO PUBLISH TRUTHFUL

INFORMATION ABOUT POLITICAL CAMPAIGNS

VIOLATES THE FIRST AMENDMENT.

The scope of First Amendment protection for gathering

and disseminating information must be determined by con-

sidering the interests served by the freedoms of speech

and press, as well as any competing interests served by

restricting that speech. See, ¢.g., Tashyian v. Republican

Party of Connecticut, 479 U.S. 208, 214 (1986) (when de-

ciding whether laws that impinge on associational freedom

violate the First Amendment, “‘a court .. . must first con-

sider the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate. It then

must identify and evaluate the precise interests put for-

ward by the State, as justifications for the burden imposed

by its rule. In passing judgment, the court must not only

determine the legitimacy and strength of each of thuse

interests: it must also consider the extent to which those

interests make it necessary to burden the plaintiff's

rights.”); Smith v. Daily Mail Publishing Co., 443 U.S.

97, 106 (1979) (‘“‘we have eschewed absolutes in favor of

a more delicate calculus that carefully weighs the conflict-

ing interests to determine which demands the greater pro-

tection under the particular circumstances presented’’)

(Rehnquist, J., concurring); Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 757 (1985) (‘‘[t]o

make this determination we ... balance the State’s inter-

est ... against the First Amendment interest in protecting

this type of expression’’).

As discussed in the following sections, judicial

enforcement! of an understanding h<*veen a source and

a reporter, that would allow the source co inject misleading

information into the public debate during an election in

an effort to smear a political opponent, furthers no legit-

imate state interest, while endangering the constitutional

freedom of editors to decide what to publish and the right

of the public to know the whole truth about that political

campaign. This Court should hold, therefore, that the First

Amendment does not permit judicial enforcement of such

ethical obligations in the circumstances of this case.

A. The Principle That The Media Are Not Exempt

From The Application Of General Laws Is

Completely Irrelevant To This Case, Which

Involves A Direct Restriction On The Gathering

And Dissemination Of Truthful Information To The

Public.

Petitioner’s entire argument is based on the premise

that, because the media are not exempt from the appli-

'‘ Petitioner contends that no state action arises from judicial en-

forcement of civil suits for damages. That proposition has been squarely

rejected by this Court. New York Times Co. v. Sullivan, 376 U.S. 254,

265 (1964).

cation of general laws, understandings between reporters

and sources also must be subjected to the application of

general promissory estoppel principles without any consid-

eration of the First Amendment. (See, e¢.g., Petitioner’s

Brief at 22-24.) That premise is fatally flawed.

There is no dispute that the media are, like any other

citizens, subject to the application of general laws and

regulations concerning commercial activities. As this Court

noted in Associated Press v. United States, 326 U.S. 1

(1945), “[t]he fact that the publisher handles news while

others handle food does not ... afford the publisher a

peculiar constitutional sanctuary in which he can with im-

punity violate laws regulating his business practices.” 326

U.S. at 7. In keeping with this principle, this Court has

held, among other things, that the media are not exempt

from the antitrust laws (Associated Press, supra (applying

Sherman Antitrust Act)), from the federal labor laws (see,

e.g., Associated Press v. N.L.R.B., 301 U.S. 108, 132-33

(1937) (applying National Labor Relations Act)), or from

generally applicable taxes (see, e.g., Minneapolis Star and

Tribune Co. v. Minnesota Commissioner of Revenue, 460

U.S. 575, 587 n.9 (1983).

This principle - that when conducting commercial activ-

ities, the media are no different from other commercial

enterprises and, therefore, are subject to the application

of general laws - which principle we do not dispute, simply

has no application here. It only applies when the state

action is a nondiscriminatoiy regulation of commercial ac-

tivities? which has no more than an incidental or minimal

* Thus, this Court has recognized that laws which differentially apply

to the media must be carefully scrutinized to ensure that they are not

used as tools of government censorship. For example, in Minneapolis

Star, this Court struck down a state statute which imposed differential

taxes on newspapers, noting that “{dJifferential taxation of the press

.. . places such a burden on the interests protected by the First Amend-

ment that we cannot countenance such treatment unless the State

asserts a counterbalancing interest of compelling importance that it

cannot achieve without differential taxation.” Minneapolis Star, supra,

460 U.S. at 585 (footnote and citations omitted). See also Grosjean v.

effect on the gathering and dissemination of information

to the public. In contrast, government actions which di-

rectly impact the media’s ability to gather and disseminate

information are subject to challenge on First Amendment

grounds.’ See, ¢.g., Oklahoma Publishing Co. v. District

Court, 430 U.S. 308, 311-12 (1977) (court order restraining

media from publishing name of juvenile obtained at open

court proceeding violates First Amendment); Coz Broad-

casting Corp. v. Cohn, 420 U.S. 469, 491 (1975) (invali-

dating, on First Amendment grounds, state statute which

punished publication of rape victim’s name); Miami Herald

Publishing Company v. Tornillo, 418 U.S. 241, 258 (1974)

(state statute compelling newspapers to publish ‘‘reply’’ by

political candidates violates First Amendment).

This case falls within this latter category. The issue

before this Court is not whether a media enterprise is

bound by commercial agreements it has entered into, e.9.,

an agreement to purchase newsprint, to use printing fa-

cilities, or to purchase vehicles to deliver newspapers. Ap-

plication of general legal principles to those types of

commercial agreements, which are only incidentally related

to the news gathering and dissemination process, is plainly

constitutional. Here, however, Petitioner seeks to restrict

directly the media’s ability to gather and disseminate in-

formation to the public, by transforming what is, at most,

an ethical obligation to maintain the confidentiality of a

source’s identity into a legally enforceable promise. That

restriction on the media falls within the First Amend-

ment’s protections.

American Press Co., 297 U.S. 233, 250, 251 (1936) (invalidating state

tax which applied only to large newspapers).

*One noted commentator has distinguished these two areas by de-

fining the commercial realm as encompassing ‘‘the production and ex:

change of goods and services for profit,” while the realm of information

gathering and dissemination involves ‘‘the production or exchange of

ideas.” T. Emerson, The System Of Freedom Of Expression 414 (1970),

see also Note, Freedom of Expression in a Commercial Contert, 78

Harv. L. Rev. 1191, 1192, 1194-95 (1965) (distinguishing these two

areas). .

10

The First Amendment has particular force here, because

the information sought to be restrained is truthful infor-

mation about the conduct of government affairs. As this

Court noted in Smith v. Daily Mail Publishing Co., 443

U.S. 97 (1979), “state action to punish the publication of

truthful information seldom can satisfy constitutional

standards.” 443 U.S. at 102 (emphasis added).

Indeed, under any view, the publication of information

concerning matters of public concern, especially political

campaigns, is at the heart of the First Amendment’s pro-

tection. As this Court noted in Mills v. Alabama, 384 U.S.

214, 218 (1966): “Whatever differences may exist about

interpretations of the First Amendment, there is practi-

cally universal agreement that a major purpose of that

Amendment was to protect the free discussion of govern-

mental affairs.” See also Stromberg v. California, 283 U.S.

359, 369 (1931) (“[t}he maintenance of the opportunity for

free political discussion ...is a fundamental principle of

our constitutional system’’); Brown v. Hartlage, 456 U.S.

45, 53 (1982) (“[tjhe free exchange of ideas provides special

vitality ott ede traditionally at the heart of Amer-

ican co 0 emocracy—the political campaign’”’:

thus, the First Amendment “has its fullest and a ur-

gent application precisely to the conduct of camraigns for

political office”); Buckley v. Valeo, 424 U.S. 1, 14-15 (1976)

(“[djebate on the qualifications of candidates [is] integral

to the operation of the system of government established

by our Constitution”); Harte-Hanks Communications, Inc.

v. Connaughton, 491 U.S. 657, 109 S. Ct. 2678, 2695, 2696

(1989) (“[vjigorous reportage of political campaigns is nec-

essary for the optimal functioning of democratic institu-

tions and central to our history of individual liberty”’;

consequently, it is a “‘value [that] must be protected with

special vigilance”); Eu v. San Francisco County Demo-

cratic Central Committee, 489 U.S. 214, 109 S. Ct. 1013

1020 (1989) — first amendment ‘has its fullest and most

urgent application’ to speech uttered duri

for political office’’). _— —————

ll

Accordingly, this Court should not accept Petitioner's

misleading assertion that the First Amendment has no

application here because all that is involved is the appli-

cation of general laws. Instead, this Court must evaluate

the constitutionality of applying general promissory estop-

pel principles to reporter-source understandings, by as-

sessing the interests in enforcement of such ethical

obligations versus the First Amendment interests in pro-

tecting the gathering and dissemination of truthful infor-

mation to the public about elections. The following sections

demonstrate that when Petitioner’s interests are evaluated

against Respondents’ First Amendment interests,

Petitioner cannot overcome the First Amendment interests

at stake here.

B. No Significant, Let Alone Compelling, State

Interest Would Be Served By Converting Ethical

Understandings Between Sources And Reporters

Into Civilly Enforceable Promises.

Because of the First Amendment interests in protecting

the gathering and dissemination of information to the pub-

lic (see Section 1(A), supra, and Section 1(C), infra), this

Court has recognized that there must be a compelling gov-

ernment interest which justifies using the might of the

state to restrict news gathering and dissemination. (Jd.)

For example, in Snepp v. United States, 444 U.S. 507, 509

n.3 (1980), this Court held that the importance of pro-

tecting national security, and in particular, the effective

operation of America’s foreign intelligence service, were

compelling interests which justified enforcement of an

agreement by a former government employee to submit a

manuscript to pre-publication review by the Central In-

telligence Agency.

There is no similarly compelling interest here. As set

forth below, the general principles of promissory estoppel —

simply do not apply to reporter-source understandings,

which do not have the characteristics of civilly enforceable

agreements and which do not involve the type of interest

which promissory estoppel is designed to protect. Conse-

12

quently, there is no, or at most a minimal, state interest

in civilly enforcing reporter-source understandings.

i. Unlike Typical Promissory Estoppel Situations,

Reporter-Source Understandings Are Not Based

Upon An Expectation That The Understanding

Is Legally Enforceable.

The Minnesota Supreme Court held, as a matter of state

law, that a reporter’s promise of confidentiality does not

constitute a binding contract. (Pet. App. A7-A10.)* Because

this holding was grounded in state law, rather than federal

law, it Is not subject to review by this Court. See, e.g.,

Wainwright v. Goode, 464 U.S. 78, 84 (1983) (“the views

of the State’s highest court with respect to state law are

binding on the federal courts’’). Consequently, the only

issue before this Court is whether the state interests served

by Petitioner pursuing a civil damages claim on a theory

of promissory estoppel overcome the First Amendment in-

terests at issue here. The answer is that they do not.®

As the Minnesota Supreme Court recognized, a claim

for promissory estoppel is premised on reasonable reliance,

1.€., that the source reasonably relied on the promise of

confidentiality. 457 N.W.2d at 203, 204. In the typical case

of a reporter and a source, there simply is no such “re-

liance,”” because there is no reasonable expectation that

any understanding they reach concerning confidentiality is

* The Minnesota Supreme Court indicated that it was “

: re not persuaded

that in the special milieu of media news gathering a source and a

reporter ordinarily believe they are engaged in making a legally binding

contract. .. . The parties understand that the reporter’s promise of

a 18 given as a moral commitment, but a moral obligation

not support a contract.”’ Cohen v. C

N.W.2d 199, 203 (Minn. 1990). ee

*We agree with Respondents that certiorari in this case was im-

providently granted, especially because this issue was not tried or briefed

13

civilly enforceable.’ The fact that there are no prior re-

ported cases like this one, in which a source has success-

fully sued a reporter for allegedly “breaching’’ an

understanding about confidentiality,’ demonstrates that

such understandings have not previously been conceived

of as legally enforceable agreements.

That conclusion is reinforced by some well-known in-

stances in which the identity of a source has been revealed,

despite an understanding of confidentiality between the

* This requirement should have ended the Minnesota Supreme Court's

analysis, because it had already determined that the parties neither

intended nor anticipated that their purported ‘‘agreement”’ would be

anything more than a non-binding, non-enforceable moral commitment.

See, ¢.g., 457 N.W.2d at 203. At the very least, it means that

Petitioner's reliance interest is not of significant weight here.

’ Prior to Cohen, the closest analogy would have been Huskey ».

National Broadcasting Co., Inc, 632 F. Supp. 1282 (N.D. Ill. 1986), in

which the district court denied the defendant’s motion to dismiss a

breach of contract claim brought by a prison inmate who claimed that

NBC violated a provision of its agreement with the prison that forbade

photographing inmates without their consent. 632 F. Supp. at 1292-93.

That decision received little attention, however, and no subsequent de-

cision has been reported. The few other cases prior to Cohen that raised

contract claims were unsuccessful. See, ¢.g., Bindrim v. Mitchell, 92

Cal. App. 3d 61, 81, 155 Cal. Rptr. 29 (1979) (affirming trial court's

JNOV against plaintiff's breach of contract claim, which arose out of

the defendant’s agreement not to disclose any information about her

attendance at plaintiff's therapy group sessions).

However, Cohen, and the widely publicized controversy it has gen-

erated, has provoked a substantial number of reported decisions in-

volving breach of contract or related claims, arising out of reporters’

ethical obligations not to publish certain information. See, e.g., Virelli

v. Goodson-Todman Enterprises, Ltd., 142 A.D.2d 479, 536 N.Y.S.2d

571, 576-77 (1989) (dismissing suit for invasion of privacy and emotional

distress brought by interviewees who claimed agreement not to reveal

their identities was violated); Doe v. American Broadcasting Co., 152

A.D.2d 482, 543 N.Y.S.2d 455 (1989) (suit by rape victims for breach

of contract and emotional distress arising out of alleged violation of

promise of anonymity); Ruzicka v. Conde Nast Publications, Inc., 733

F. Supp. 1289 (D. Minn. 1990) (district court dismissed suit for breach

of contract and other claims arising out of alleged violation of confi-

dentiality agreement), appeal pending.

14

source and the reporter, without giving rise to litigation.

See, e.g., Kase, When A Promise Is Not A Promise: The

Legal Consequences for Journalists Who Break Promises

of Confidentiality to Sources, 12 Hastings Comm/Ent. L.J.

565, 576 (1990) (citing, among other instances, the disclo-

sure of Daniel Ellsberg as the source of the “Pentagon

Papers” and of Lt. Col. Oliver North as the source of

information about retaliation against the terrorists who

hijacked the Achille Lauro cruise ship); see also examples

cited in Respondent Northwest Publications, Inc.’s Brief,

Argument, Section II(B).*

Moreover, in this case, the source—Petitioner Cohen—

was a sophisticated political insider used to dealing with

the media. As the Minnesota Supreme Court recognized,

“(flor many years Cohen had been active in politics as a

campaign worker, a candidate, and as an elected public

official.” 457 N.W.2d at 201 n.3; see also Petitioner’s Brief

at 21 (where Cohen adopts the Minnesota Court of Appeal’s

characterization of him as an “experienced political op-

erative”). As a sophisticated public figure, who then worked

in public relations, Petitioner had to know that such un-

derstandings with reporters were not civilly enforceable.

Petitioner cannot claim, therefore, that he reasonably be-

lieved his understandings with Respondents’ reporters were

legally enforceable contracts. Because there was no rea-

sonable reliance by Petitioner, the state interest in recog-

* This is not to suggest that a decision to reveal a source’s identity

occurs frequently or without careful consideration. In the case involving

Lt. Col. Oliver North, for example, he was identified as a source only

after he publicly accused Congress of leaking secret intelligence infor-

mation to the press, which he himself had provided as a “confidential

source.” Two Leaks, But by Whom?, Newsweek, July 27, 1987, at 16.

In another case, a Chicago Sun Times reporter identified “confidential

source’ Jody Powell as the source of information damaging to Senator

Charles Percy, who had been critical of budget director Bert Lance,

after it was learned that the information was completely false. Smyser,

There Are Sources and Then There Are “Sourcerers,” Soc. Resp.: Jour-

nalism, Law, Med. 13, 17-18 (1979).

15

nizing a promissory estoppel claim here is minimal or non-

existent.’

ii. Reporter-Source Understandings Do Not

Involve A “‘Meeting Of The Minds.”

Reporter-source understandings are also distinguishable

from ordinary promissory estoppel situations because they

do not involve a true agreement, upon which the -parties

justifiably rely. Such understandings are vague, and in-

variably involve terms that have no well-established mean-

ing or that are susceptible to more than one reasonable

interpretation. For example, if the source provides infor-

mation on a “not for attribution” basis, the reporter may

believe that he can describe the source, so long as he does

not identify the source by name (‘‘a government official,’’

‘a member of the defense team,’’ ‘“‘a Cabinet member’’);

the source, however, may intend that no identifying in-

formation of any kind be published. Similarly, the source

and reporter may have different interpretations of the

meaning of statements like “‘off the record,’’ “‘confiden-

tially,” or ‘as background only.”” The source may intend

that none of the information provided ever be published,

while the reporter may believe that the information can

be published, so long as it is not attributed to any source.

Under these circumstances, which are quite typical, there

is no true “meeting of the minds.”’

Furthermore, unlike typical promissory estoppel situa-

tions, the very nature of a reporter-source relationship

- means that the reporter does not know what information

is being provided until after the assurance of confiden-

* As the Minnescta Supreme Court recognized, there may be circum-

stances in which a promissory estoppel claim could survive First Amend-

ment scrutiny. 457 N.W.2d at 205. Thus, for example, if Petitioner had

bargained for and received an explicit promise that he could bring a

civil suit for damages if the confidentiality understanding was violated,

a different case might be presented, because he would have had a clear

expectation that a civil remedy was available. This Court does not need

to decide what rule would be appropriate in that situation, however,

because that situation is not presented by the facts of this case.

16

tiality has been extracted. Thus, there is no true “meeting

of the minds’ between the reporter and the source, and

can never be one, because the reporter does not know the

actual terms to be agreed upon.

For example, if, after extracting an assurance of con-

fidentiality, the source “revealed” information that the re-

porter already knew or that the source had previously

revealed to the reporter or to others without any discus-

sion of confidentiality,’ the source could not possibly be-

lieve that there was an agreement, upon which the source

could justifiably rely, such that the reporter was really

agreeing not to use that information.

Similarly, 10 source who extracts an assurance of an-

onymity from a reporter can possibly believe that, if he

tells the reporter that he is responsible for the murder of

a prominent citizen, the reporter can be held liable for

payment of civil damages if he ‘“‘breaches his promise” by

revealing the source’s identity. There simply is no ‘“‘meet-

ing of the minds’ because in the usual situation, the re-

porter never knows what he or she is going to be told.

It is precisely this lack of any meeting of the minds

that has kept reporter-source understandings in the realm

of ethics rather than law. Petitioner’s pretense that every-_

one has always known that there is a civilly enforceable

‘“‘agreement’’ when a source is assured of confidentiality

not only contradicts reality, it demonstrates the insub-

stantial nature of the state interest involved here.

iii. Reporter-Source Understandings Do Not

Involve The Type Of Interest Which

Promissory Estoppel Law Is Intended To

Protect; Instead, These Understandings Create

Ethical, Rather Than Legally Enforceable,

Obligations.

As set forth in the preceding sections, the understand-

ings reached by sources and reporters do not have the

‘In this case, the Star Tribune had independently determined that

Petitioner was the source of the information provided. See Cohen, 457

N.W.2d at 201; see also Tr. 1572-74, 1599-1601.

17

characteristics of promissory estoppel obligations. Instead,

the obligation created is an ethical one. And, as is true

of most ethical obligations, ‘“‘enforcement’”’ must come from

self-policing, rather than a government command. In the

case of reporter-source understandings, the mechanisms

for self-enforcement of such ethical obligations include a

reporter’s or editor’s professional disgrace, the loss of re-

spect by their peers, and ultimately the loss of sources

who no longer believe the reporter or editor to be trust-

worthy. These are serious penalties. They have worked so

well in the past that other sources have not felt the need

to sue to enforce such understandings. Indeed, Petitioner

does not even attempt to show that these self-policing

mechanisms are so inadequate that what always have been

ethical obligations must now all be treated as civilly en-

forceable agreements. Thus, any state interest in civilly

enforcing such ethical obligations is quite small.

In addition, the idea that there are areas in which the

state has little or no legitimate interest in civilly enforcing

ethical obligations is not novel, even under circumstances

which give a much stronger appearance of a civilly en-

forceable agreement (i.e., justifiable reliance and a meeting

of the minds), than the case at hand. For example, social

engagements may have all the characteristics of enforce-

able promises: an offer (invitation), acceptance (or promise

to attend), and reliance on the promise, to the detriment

of the relying party (i.¢., cancelling other plans, preparing

dinner, hiring a caterer). Nonetheless, unless the parties

have expressed a clear intention to be legally bound, such

engagements typically are not viewed as creating civilly

enforceable agreements. See, ¢.g., 1 A. Corbin, Corbin On

Contracts, § 34 (1963).

Similarly, agreements to refrain from marriage gener-

ally are not legally enforceable, even though such agree-

ments involve one of the most fundamental relationships

in our society and despite the fact that the failure to honor

such an agreement can cause tremendous and enduring

harm. See Restatement (Second) of Contracts, § 189 (1981).

18

If anything, the state interest here is even less impor-

tant. Petitioner was attempting to use the media to dis-

seminate misleading information, during an election

campaign, about a political opponent and sought to prevent

the dissemination of the truth: that he was the source of

the smear campaign. Certainly, no important state interest

would have been furthered by permitting Petitioner to ac-

complish this. Thus, there is little or no state interest, let

alone a compelling one, in making the ethical obligation

here civilly enforceable.

C. First Amendment Interests Are Furthered By

Protecting The Dissemination Of Truthful

Information To The Public, Particularly Where, As

Here, That Information Involves Government

Affairs.

This suit is aimed at restricting the rights of the media

to obtain aiid disseminate truthful information to the public

about subjects which are at the heart of the First Amend-

ment’s protection of free speech and press - the conduct

of government affairs and campaigns for public office. (See

Section 1(A), supra.) That the conduct targeted by

Petitioner is encompassed by the First Amendment cannot

be questioned.

This Court explicitly recognized the important First

Amendment interests in news gathering in Branzburg v.

Hayes, 408 U.S. 665 (1972). As Justice White wrote:

‘Without some protection for seeking out the news, free-

dom of the press *ould be eviscerated. News gathering is

not without its First Amendment protections.”’ 408 U.S.

at 681. Later decisions by this Court also stand for the

proposition that the gathering of information by the media,

for dissemination to the public, is constitutionally pro-

tected. See, e.g., Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 573 (1980) (in recognizing a constitutional

right of access to judicial proceedings, this Court noted

that the fact that people primarily acquire information

about public affairs through the media instead of by first-

hand observation ‘‘validates the media claim of functioning

as surrogates for the public’’).

19

In addition, there is no question that the dissemination

of truthful information to the public is protected by the

First Amendment. (See cases cited in Section 1(A), supra.)

Even where the publication of such information causes

substantial harm, this Court has repeatedly held that the

public’s interest in receiving truthful information about

matters of public concern outweighs the detrimental im-

pact of the publication on a particular individual. See, e.g.,

Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603

(1989) (emotional injury and fear of later physical harm

from dissemination of rape victim’s name); Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975) (emotional dis-

tress to parents from dissemination of rape victim's

identity); Smith v. Daily Mail Publishing Co., 443 U.S. 97

(1979) (harm caused by disclosure of juvenile offender’s

identity); Oklahoma Publishing Co. v. District Court, 430

U.S. 308 (1977) (same); Landmark Communications, Inc.

v. Virginia, 435 U.S. 829 (1978) (harm to reputation from

publication of confidential information about judicial dis-

ciplinary proceedings). The harm allegedly caused to

Petitioner as a consequence of his identity being revealed,

namely, dismissal from his job, is certainly no greater than

the harm suffered by the plaintiffs in these cases and,

indeed, is much less compelling because he is a public

figure,'! who voluntarily injected himself into the political

arena.'2 See, e.g., Gertz v. Robert Welch, Inc., 418 U.S.

323, 345 (1974) (‘“‘the communications media are entitled

to act on the assumption that public officials and public

figures have voluntarily exposed themselves to increased

The Minnesota Supreme Court found that Petitioner was a public

figure. Cohen, 457 N.W.2d at 201 n.3.

Unlike the plaintiffs in the cited cases, Petitioner sought out the

media as an instrument for manipulating the political process, through

the dissemination of misleading information. Moreover, he “had many

years’ experience in politics and public relations,’’ 457 N.W.2d at 201;

consequently, having voluntarily entered the political arena, Petitioner

cannot be heard to complain about the political sting of sunlight—‘‘the

most powerful of all disinfectants.’ P. Freund, The Supreme Court of

the United States 61 (1949) (paraphrasing former Supreme Court Justice

Brandeis).

20

risk of injury from defamatory falsehood concerning

them’’).

Moreover, as previously discussed, the First Amend-

ment’s protection of free speech and press, particularly

with regard to information about political campaigns and

the conduct of government, is at the very core of the

democratic process. As this Court noted in Cor Broad-

casting, “[w)ithout the information provided by the press

most of us and many of our representatives would be

unable to vote intelligently or to register opinions on the

administration of government generally.” 420 U.S. at 492.

See also cases cited in Section 1(A), supra. Thus, the in-

formation at issue here is entitled to the highest level of

First Amendment protection.

Subjecting reporters who reveal the identity of confi-

dential sources to civil liability would result in the suppres-

sion of this constitutionally protected speech. As this Court

has recognized, ‘t]he chilling effect upon the exercise of

First Amendment rights may derive from the fact of the -

prosecution, unaffected by the prospects of its success or

failure.” Dombrowski v. Pfister, 380 U.S. 479, 487 (1965).

See also New York Times Co. v. Sullivan, 376 U.S. 254,

279 (1964) (the risk of litigation may cause “would-be crit-

ics of official conduct... [to} be deterred from voicing

their criticism, even though it is believed to be true and

even though it is in fact true, because of doubt whether

it can be proved in court or fear of the expense of having

to do so. They tend to make only statements which ‘steer

far wider of the unlawful zone.’ ’’) (citations omitted).

The likelihood of protracted litigation, and its concom-

mitant chilling effect on the exercise of First Amendment

rights, is particularly pronounced here, precisely because

of the oral nature of the reporter-source relationship. Typ-

ically, there is no documentation of the “agreement,” nor

any third party witnesses, so that the terms of the “agree-

ment’ are not objectively verifiable. As one study on re-

porter-source relationships noted, “ ‘confidentiality’ in

these relationships often takes the form of an unspoken

21

trust that the reporter will treat the information with care

and will know what to use and what not to use. Frequently

there is not an explicit agreement about what is on and

off the record.”” Blasi, The Newsman’s Privilege: An Em-

pirical Study, 70 Mich. L. Rev. 229, 243 (1971). In ad-

dition, as noted in Section 1(B), supra, the parties may

have entirely different interpretations of the meaning of

terms such as “not for attribution,” “off the record,” or

the numerous other possible “understandings” a source

may claim.

These ambiguities, which are inherent in the very nature

of these relationships, create fertile ground for sources to

dispute reporters’ later actions. Indeed, to impose civil

liability on these ethical obligations is to issue an open

invitation to any source who is dissatisfied with a publi-

cation to claim later that there was an ‘oral agreement’

or “understanding” of some sort which the reporter

breached—for example, about not revealing the source’s

identity, not publishing confidential information, the Te-

porter’s failure to allow the source to review the article

prior to publication, the failure to treat the source favor-

ably, the failure to adequately explain the source's views,

the inclusion of information or points of view the source

does not wish to be associated with, and so on, ad infin-

itim.

It is certainly not uncommon for sources, when they see

an actual article, to be disappointed by it and to feel un-

fairly treated because the reporter has not concluded that

the source or the source’s views are right, just, and proper

and the source’s opponents or their views are wrong, un-

wise, and immoral. If sources are allowed to continually

embroil journalists in burdensome and expensive litigation,

which will involve a swearing contest between the sources

and the reporters about alleged oral “agreements” and

‘“‘understandings,’’ and which, therefore, will be virtually

impossible to dispose of summarily, “editors might well

conclude that the safe course is to avoid controversy.

Miami Herald, 418 U.S. at 257.

22

Petitioner’s response, namely, that enforcement of re-

porter-source understandings will somehow “improve’’ the

relationship between reporters and their sources, and pre-

vent those sources from ‘drying up” (Petitioner’s Brief at

27-29), is untenable. Despite the fact that previous cases

had not held that such understandings were legally en-

forceable,'* confidential sources have and will continue to

cooperate with reporters. As the district court noted in

Ruzicka v. Conde Nast Publications, Inc., 733 F. Supp.

1289 (D. Minn. 1990), appeal pending:

It is not clear whether potential sources would

dry up if reporter-source agreements were unen-

forceable. Confidential sources often have an in-

terest in making their information public. That

interest, and the source’s relationship of trust

with the reporter, may outweigh the fact that

there is no legal remedy for a breach.

Id. at 1299. Petitioner has not presented any evidence

whatsoever which even remotely suggests that those re-

lationships will not continue, without a civil remedy by

sources against reporters.

In any event, it is not the province of the courts to

“improve”’ the relationship between sources and reporters,

any more than it is the province of the courts to “improve”

editorial judgments.'* As this Court noted in Miami Herald,

[a] responsible press is an undoubtedly desirable goal, but

press responsibility is not mandated by the Constitution

and like many other virtues it cannot be iegislated.” 418°

U.S. at 256.

Even in the media, there was no consensus as to what

was the proper ethical or editorial judgment here. The

* See, note 7, supra.

“The government is not permitted to intrude into the relationship

between reporters and their sources in this manner, any more than it

should be allowed to interfere with that relationship by attempting to

compel reporters to reveal the identities of their confidential sources.

It is simply not up to the courts to improve relationships between

sources and reporters.

23

Associated Press, one of the amici here, exercised its ed-

itorial judgment differently than the two Respondents,

choosing not to disclose Petitioner's identity. (Joint App.

at 11; Tr. 395.) That simply demonstrates that here, as

in most cases, editorial or ethical judgments on difficult

questions may differ. That very lack of a consensus as to

what was “proper” conduct shows that the issue here is

better .eft to ethics than to law.

As this Court concluded in Miami Herald:

The choice of material to go into a newspaper,

and the decisions made as to limitations on the

size and content of the paper, and treatment of

public issues and public officials—whether fair or

unfair—constitute the exercise of editorial contro!

and judgment. It has yet to be demonstrated how

governmental regulation of this crucial process

can be exercised consistent with First Amend-

ment guarantees of a free press as they have

evolved to this time.

418 U.S. at 258.

Just as in Miami Herald, the civil enforcement of re-

porter-source understandings would severely interfere with

the media’s exercise of editorial judgment. Moreover, the

threat of burdensome and oppressive litigation would op-

erate as a substantial impediment to the exercise of im-

portant First Amendment rights. These concerns outweigh

the minimal (at most) state interest in civilly enforcing

reporter-source understandings.

D. Application Of The Test Applied In Analogous

Areas, Such As Invasion Of Privacy Cases,

Demonstrates That Civil Enforcement Of Typical

Reporter-Source Understandings Is

Constitutionally Impermissible.

Petitioner’s claim in this case, reduced to its essence,

is virtually indistinguishable from the invasion of privacy

claims advanced in Florida Star and Datly Maul. The basis

for his claim, as in those cases, is that private informa-

24

tion—his identity—has been revealed and that the state

has an interest in protecting him from disclosure of that

information. Analyzing Petitioner's claim from the per-

spective of a privacy action, however, further demonstrates

that the important First Amendment interests in disclosure

of the “private” information outweighs any interest

Petitioner has in its secrecy."

The rule advanced by this Court in Daily Mail and

Florida Star for evaluating the constitutionality of the

government's action is that publication of truthful infor-

mation, lawfully obtained, about a matter of public con-

cern, may not be punished except to directly advance a

state interest of the highest order. See Daily Mail, 443

U.S. at 103; Florida Star, 109 S. Ct. at 2613.

Here, there is no dispute that the information published

by Respondents was truthful, nor is there any dispute that

it involved a matter of public concern—the conduct of a

political campaign.

Furthermore, there is no evidence that the information

published by Respondents was obtained unlawfully. To the

contrary, the only discussion of that issue in the Minnesota

Court of Appeals’ opinion indicates that Respondents did

not violate Minnesota law in obtaining the information from

Petitioner. Cohen v. Cowles Media Co., 445 N.W.2d 248,

268 (Minn. Ct. App. 1989) (“{t]here was no wrongful act

of [Respondents] in connection with the conduct of their

reporters or in the acquisition of information peddled by

(Petitioner]’’) (Crippen, J., concurring in part and dissent-

ing in part). The Minnesota Supreme Court also found that

there was no violation of Minnesota contract law. 457

N.W.2d at 203. Moreover, empirical evidence indicates that

the ‘Methods employed by Respondents to obtain infor-

mation from Petitioner were far from unorthodox, let alone

‘Indeed, Minnesota does not even recognize a cause j

invasion of privacy. See, e.g., Ruzicka v. Conde Nast Paton "oes ;

733 F. Supp. 1289, 1302 (D. Minn. 1990), appeal pending (citing Stubbs

v. North Mem. Medical Center, 448 N.W.2d 78, 80-81 (Minn. Ct. App

1989); Hendry v. Conner, 303 Minn. 317, 226 N.W.2d 921, 923 (1975)

25

illegal. See, ¢.g., Blasi at 239-45 (describing some of the

techniques reporters use to obtain information from con-

fidential sources).

Petitioner’s response that the First Amendment does

not permit the media to commit “torts and crimes” in

news gathering (Petitioner's Brief at 30) misses the mark.

It is certainly tcue that a reporter cannot commit burglary

to obtain documents or murder a source, and then claim

First Amendment protection. That does not mean, how-

ever, as Petitioner asserts, that there is no First Amend-

ment protection if a “tort” is committed. To the contrary,

this Court has repeatedly invoked the protection of the

First Amendment to restrict the imposition of strict tort

liability on the media. See, ¢.g., New York Times Co. ».

Sullivan, 376 U.S. 254, 283 (“the constitution delimits a

State’s power to award damages for libel in actions brought

by public officials against critics of their official conduct’),

and its progeny.

Moreover, Petitioner’s assertion that Respondents’ ac-

tions were unlawful is based on circular reasoning. Ac-

cording to Petitioner, the First Amendment does not bar

his claim because Respondents acted unlawfully, but the

only supposed “unlawful” action alleged is the purported

violation of the ethical understanding of confidentiality

here. This begs the question of whether Respondents did

anything unlawful. Respondents’ acquisition of information

from Petitioner was simply a “newspaper reporting tech-

nique” permitted by Daily Mail. 443 U.S. at 103 (asking

people for information, who by law are bound not to dis-

close it, is such a technique).

The only remaining issue, therefore, is whether enforce-

ment of reporter-source understandings directly furthers

a state interest “of the highest order.’ As discussed in

Section 1(B), supra, there is no state interest, let alone

one “of the highest order,’ which justifies civil enforce-

ment of reporter-source agreements. Moreover, the strong

First Amendment interest in protecting the gathering and

dissemination of information to the public easily outweighs

26

any minimal state interest which exists. Thus, under this

Court’s prior decisions in Daily Mail and Florida Star

reporter-source understandings are not civilly enforceable.

2. EVEN ASSUMING, ARGUENDO, THAT LIMIT

’ , E

ENFORCEMENT OF REPORTER-SOURCE

UNDERSTANDINGS IS CONSTITUTIONALLY

PERMISSIBLE, THE FIRST AMENDMENT REQUIRES

APPROPRIATE SAFEGUARDS TO ENSURE THE

BREATHING SPACE” ESSENTIAL TO THE

EXERCISE OF FREE SPEECH AND PRESS RIGHTS.

. Even if this Court were to determine that, under some

circumstances, understandings between reporters and their

sources should be enforced by the courts, the important

First Amendment interests in

| Lmer . protecting the gathering and

dissemination of information to the public ae the

imposition of limits on any such enforcement. As this Cort

noted in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974):

In our continuing effort to define the proper ac-

commodation between these nacier = scan

[w.e., free speech and press and redress of indi-

vidual wrongs], we have been especially anxious

to assure to the freedoms of speech and press

that “breathing space’’ essential to their fruitful

exercise. ... To that end this Court has extended

a measure of strategic protection to

——- gic p on to defamatory

Id. at 342 (citation omitted). In accordance wi

} with that con-

— this Court has, as a matter of federal constitutional

aw, adopted various requirements in defamation cases to

safeguard against the prosecution of spurious claims.'*

‘ For example, public officials and figures required

statements were made with constitutional “neal can" ae, aan

knowledge of the statements’ falsity or while entertaining ‘serious sub-

jective doubts as to their truth or falsity. See, ¢.g., Harte-Hanks, supra

109 S. Ct. at 2696. Plaintiffs in cases against media defendants, where

as — of information of public interest is concerned, also have

of proving that the allegedly defamatory statements are

— ¢.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767

27

Similarly, if this Court permits Petitioner and others

like him to pursue promissory estoppel claims against the

media, it must adopt strict standards for bringing and

maintaining such actions in order to protect the First

Amendment values at stake here.

First, to avoid the potential chilling effect which results

from the media’s engagement in protracted and expensive

litigation (see Section 1(C), supra), marginal claims must

be discouraged at the outset or must be capable of being

disposed of summarily at an early stage. To accomplish

this goal, plaintiffs must be required to prove by clear and

convincing evidence the existence of an agreement and the

clear, specific terms of that agreement. See, ¢.g., Anderson

v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (applying clear

and convincing evidence standard in public figure defa-

mation cases); see also Ruzicka, 733 F. Supp. at 1298

(purported agreement not to identify source was found to

be “too vague to constitute a waiver of the defendants’

first amendment rights”). Ambiguous terms or understand-

ings should be construed against the source seeking to

enforce the “agreement”’ or ‘“‘understanding.””’’

Second, the source must expressly request and the re-

porter must expressly agree that any such agreement can

be enforced by a civil action for damages. In this way,

reporters will be put on notice that breach of these ethical

obligations can lead to civil damages and that reporters

should not proceed unless they are prepared to accept

those consequences. The source must also be required to

prove by clear and convincing evidence that the media's

conduct clearly and intentionally violated the terms of the

agreement.

Third, to protect the press from defending burdensome

litigation in cases where the plaintiff was not actually dam-

‘This goal would be further served if plaintiffs were barred from

recovery on oral, as opposed to written, understandings. As one noted

authority on contract law wrote, “{rjeduction to writing undoubtedly

tends to prevent not only fraud and perjury but also the disputes and

litigation that arise by reason of treacherous memory and the absence

of witnesses.” 2 A. Corbin, Corbin on Contracts 13 (1950).

28

aged by the purported “‘breach,”’ the source should be

required to demonstrate proof of special damages before

being permitted to proceed with the lawsuit. This is con-

sistent with the common law requirement that certain types

of defamation, i.e., libel and slander per quod, are not

actionable without proof of special damages.'* Moreover,

consistent with the general principles of promissory es-

toppel, only consequential or special damages should be

recoverable. See Cohen, 445 N.W.2d at 260-61 (Cohen was

limited to recovering nonpunitive, compensatory damages

resulting from the purported breach of contract).

Fourth, because media entities, no less than other en-

terprises, should be free from liability based upon the un-

ratified actions of subordinate employees, this Court should

hold that a media entity cannot be held civilly liable absent

a showing that its representative—whether a ‘reporter’

or an “‘editor’’—is clearly vested with authority to accept

the terms of the “agreement” on confidentiality. See, e.g.,

Poteet v. Roswell Daily Record, Inc., 92 N.M. 170, 584

P.2d 1310, 1312-13 (Ct. App. 1978) (in action for invasion

of privacy, reporter’s alleged promise not to reveal rape

victim's name “was insufficient to show waiver without

raising the additional requirement of the reporter’s au-

thority to speak for the defendant. ... Absent authority,

the statements of the reporter could not be considered as

a waiver of a constitutional privilege by the defendant

newspaper’); see also New York Times Co. v. Sullivan,

376 U.S. at 287 (state of mind for actual malice must be

a individuals “having responsibility for the publica-

on’’).

Fifth, to minimize restraints on the dissemination -f

truthful information, this Court should hold that “agr-

ments” or “understandings” of confidentiality are not civ

illy enforceable if the information which is to be kept

* See, ¢.g., Restatement (Second) of Torts §§ 569-575 (1977)

; see also

W. Keeton, Prosser and Keeton on Torts 788 (5th ed. 1984) (special

damages requirement of common la i Lan ;

tori dine, n law was intended to limit unmeri-

29

confidential—whether the identity of a source, or certain

information provided by a source—is already public or has

been independently obtained by the reporter through other

means. See, e.g., Smith v. Daily Mail Publishing Co., 443

U.S. at 104-05 (even assuming that statute restricting

newspapers from publishing identity of youths involved in

juvenile proceedings ‘‘served a state interest of the highest

order,” it could not accomplish its stated purpose where

other media, like radio stations, publicized that informa-

tion).

Finally, because the information sought to be restrained

relates to matters which are at the core of our democratic

system, and, therefore, which are worthy of the most strin-

gent constitutional protection, this Court should look to

its decision in Gertz, which forbade the application of li-

ability to the media in cases involving false statements

without a showing of fault. 418 U.S. at 347. Because truth-

ful statements should be given even greater protection

(see, e.g., Florida Star, 109 S. Ct. at 2613), this Court

should adopt a high standard of fault with respect to the

breach of reporter-source obligations.

For example, sources could be required to demonstrate

that the reporter or editor induced the source to reveal

information with representations of confidentiality that

they did not intend to keep at the time those represen-

tations were made. Alternatively, the source could be re-

quired to demonstrate that’the reporter or editor acted

with gross irresponsibility. See, ¢.g., Virelli, 536 N.Y.S.2d

at 576-77.

Adoption of these safeguards does not eliminate the con-

stitutional concerns expressed in Section 1, supra. To the

extent that the Court is inclined to find some enforceable

obligation, however, amici urge this Court to strictly limit

the application of those principles in order to protect the

important First Amendment interests involved here.

CONCLUSION

For all of the reasons set forth above, amici urge this

Court to hold that the judicial enforcement of reporter-

30

source understandings, like the one in Cohen, would violate

the First Amendment to the United States Constitution.

In the alternative, if this Court determines that there are

some circumstances in which such understandings should

be judicially enforced, amici urge the adoption of the safe-

guards set forth above to protect the important First

Amendment interests involved.

DATED: February 22, 1991.

Respectfully submitted,

Of Counsel: Rex S. HEINKE

Gipson, DUNN & CRUTCHER

~ aaa ge Miron 333 South Grand Avenue

Davip Lopez Los Angeles, CA 90071-3197

GIBSON, DUNN & CRUTCHER (213) 229-7000

Jerry S. BIRENzZ Counsel of Record

RALPH P. HUBER for Amici Curiae

SABIN, BERMANT & GOULD

350 Madison Avenue

New York, New York 10017

Attorneys for Advance

Publications, Inc.

W. TERRY MAGUIRE

RENE P. MILAM

American Newspaper Publishers

Association

The Newspaper Center

11600 Sunrise Valley Drive

Reston, Virginia 22091

Attorneys for American Newspaper

Publishers Association

RICHARD M. SCHMIDT

CoHN & MARKS

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Attorneys for American Society

of Newspaper Editors

RICHARD N. WINFIELD

LOovuIsSE SOMMERS

Rocers & WELLS

200 Park Avenue

New York, New York 10166

Attorneys for Associated Press

HAROLD W. FUuSON, JR.

JupitH L. FANSHAW

The Copley Press, Inc.

7776 Ivanhoe Avenue

La Jolla, California 92038

Attorneys for

The Copley Press, Inc.

BARBARA WARTELLE WALL

Gannett Company, Inc.

1100 Wilson Boulevard

Arlington, Virginia 22234

Attorney for

Gannett Company, Inc.

JAMES E. GROSSBERG

Ross, Drxon & MASBACK

Columbia Square

555 Thirteenth Street, N.W.

Washington, D.C. 20004

Attorneys for

Newsletter Association

GEORGE FREEMAN

The New York Times Company

229 West 43rd Street

New York, New York 10036

Attorney for The New York

Times Company

DANIEL A. CURRY

WILLIAM A. NIESE

PHILIP E. KUCERA

The Times Mirror Company

Times Mirror Square

Los Angeles, California 90053

Attorneys for The Times

Mirror Company

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