Cohen v. Cowles Media Company, 501 U.S. 663 (1991)

Journalists often promise confidentiality to news sources; in Cohen v. Cowles Media Co., the U.S. Supreme Court ruled the First Amendment does not protect journalists who break promises of confidentiality.

Dan Cohen, a spokesperson for a 1982 gubernatorial candidate in Minnesota, offered reporters documents damaging to an opposing candidate. Reporters for two newspapers agreed to protect Cohen’s identity, but their editors decided to publish Cohen’s name to show that one candidate’s campaign was leaking damaging information about an opponent on the eve of the election. After publication of these stories, Cohen lost his job and sued the newspapers. A jury awarded Cohen damages; the Minnesota Supreme Court set the jury verdict aside, ruling that enforcing promises between reporters and sources would chill debate about political campaigns.

By a five to four vote, the U.S. Supreme Court overruled the state supreme court and held that promissory estoppel, a legal doctrine protecting people who rely on promises, could be applied to the press. Drawing on a well-established line of cases, the Court emphasized that the press has no special immunity from laws that apply to everyone. Reporters cannot break into a home to gather news, nor can reporters break promises to sources with impunity. The Court rejected claims that promissory estoppel would harm freedom of the press, stating that the law ‘‘simply requires those who make promises to keep them.’’

Cohen reiterates the doctrine that enforcement of generally applicable laws against the press is ‘‘constitutionally insignificant’’ and does not trigger heightened judicial review.

WILLIAM E. LEE

References and Further Reading

• Easton, Eric B., Two Wrongs Mock a Right: Overcoming the Cohen Maledicta That Bar First Amendment Protection for News-gathering, Ohio State Law Journal 58 (1997): 1135–1216.
• Richards, Jeffrey A., Note: Confidentially Speaking: Protecting the Press from Liability for Broken Confidentiality Promises, Washington Law Review 67 (1992): 501–519.
• Rothenberg, Eliot C. The Taming of the Press: Cohen v. Cowles Media Company. Westport, CT: Praeger, 1999.

See also Branzburg v. Hayes, 408 U.S. 665 (1972); Journalism and Sources; Subpoenas to Reporters