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Curious Cohen confidentiality case commemorate

By

“It is important that you do not give away any clues to the

identity of a source who has asked to be anonymous.”

Chapter 60, The News Manual (2008)

Next week, Tuesday, Jan. 24, to be precise, commemorates the 25th anniversary of the conclusion of one of the most curious, contorted, and consequential cases in Minnesota jurisprudence as well as that of the U.S. Supreme Court.

The epic case, Cohen v. Cowles Media Co., 479 N.W.2d 387 (Minn. Jan. 24, 1992) was finally resolved after nearly a decade of disputation and litigation by a news source who sued the two Twin Cities daily newspapers for outing him despite promises not to reveal his identity. The silver anniversary of the denouement of that drama provides an opportune occasion to revisit a case that made new law or, depending upon one’s viewpoint, confirmed existing law. But from the media’s perspective, it was a lawsuit for the ages.

Cohen’s contract

The genesis of the decade-long dispute began in the waning days of the 1982 gubernatorial campaign, when a supporter of the Republican ticket, former Minneapolis City Council member and mayoral candidate Dan Cohen, informed a pair of reporters with the two Twin Cities dailies about some minor criminal incidents, including a $6 shoplifting offense by Marlene Johnson, the DFL candidate for lieutenant governor, on the ticket with former Gov. Rudy Perpich, seeking re-election after being ousted four years earlier. The source insisted on confidentiality, which both reporters promised, only to be overruled by their editorial bosses.

The two daily newspapers wrote stories about the incidents in Johnson’s background, both identifying the source, despite the pledges of confidentiality. The focus of the stories and follow up reporting was on the source himself, rather than the data he revealed, which may have contributed to the victory by the Perpich-Johnson ticket, precipitating an eight-year run as leaders of the state.

The outed source, a prominent public relations man, sued both newspapers for breach of contract and fraudulent misrepresentation. After lengthy litigation, a Hennepin County District Court jury awarded him $200,000 in compensatory damages and $500,000 punitive damages for fraud. By the end of the decade, the Minnesota Court of Appeals overturned the fraud claim, dispensing with punitive damages, but upheld the breach claim and corresponding compensatory award. 445 N.W.2d 248 (1989).

The state Supreme Court disagreed with the breach issue, reversing the verdict, because a breach-of-contract claim was “inappropriate” and a claim of promissory estoppel. A claim of promissory estoppel, a contract variant, although not tried, briefed, or argued on appeal, but raised by one of the judges at oral argument, also was rejected because imposing liability on estoppel grounds would “impair the media’s First Amendment rights” to report the news. 475 N.W.2d 195 (Minn. 1990).

‘Anonymous’ appeal

The would-be anonymous source appealed to the U.S. Supreme Court, which reversed by a narrow 5-4 margin. 501 U.S. 663 (1991). The majority decision, written by Justice Byron White, relied upon the “well-established line of decisions holding that generally applicable laws” such as state tort and breach of contract claims do not offend the First Amendment “simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

A dissent by Justice Harry Blackmun of Minnesota lamented that the decision would improperly “penalize the reporting of truthful information regarding a political campaign.” Another dissent by Justice David Souter reiterated that motif, observing that the type of “political information” furnished by the anonymous source was “quintessentially subject to strict First Amendment protection.” But the First Amendment advocates lost out to the majority view that neutral principles of law do not violate the First Amendment, even if they impact how the media reports the news.

Case conclusion

The divided vote left the ultimate outcome unresolved. On remand, the state Supreme Court decided to bring the case to a conclusion without further proceedings. Rather than sending it back to the trial court for retrial, it resolved the case itself, 25 years ago next week, by reviving the previously rejected promissory estoppel doctrine. 479 N.W.2d 387 (Minn. 1992).

Characterizing the litigation as one of the pot calling the kettle black, as both sides blamed the other for improprieties, the court unanimously deemed the verdict sustainable on the theory of promissory estoppel, the same doctrine that it had previously refused to invoke against the First Amendment rights of the media.

To reach that result, the ruling, crafted by Justice John Simonett, addressed and answered four questions, much like a celebrant at a Passover Seder: (1) was the failure to plead promissory estoppel in the original case fatal? (2) Is the publication of the source’s identity protected by the freedom of the press provision of the state constitution, Article I, Section 3? (3) Would a monetary judgment be contrary to “public policy” should the case be remanded for retrial? (4) Should the case go back for a re-trial?

The Court answered all four issues in the negative. Promissory estoppel was permissible, even though not pled, because it is “essentially a variation of contract theory,” and it would be “unfair not to allow it to be asserted at this stage.” The Court opted to decline application of the independent state constitutional grounds to this issue of first impression. There was no grave importance warranting the invocation of the public policy doctrine. Retrial was unnecessary on damages alone, since liability had already been established.

So, nearly 10 years after the controversy commenced, it ended, not with a bang, but with a whimper and $200,000 for the outed source. In addition, the claimant received sizable interest and costs and disbursements. But, alas, his hard-working attorney, Elliott Rothenberg, did not recover his attorney’s fees as a prevailing party because estoppel law does not permit a fee award.

The Cohen case has been often cited for the proposition that “generally applicable” laws do not offend restrictions on First Amendment rights. It also represented an alarm bell for the media, including the local newspapers, who became more introspective and restrained, at least for a while, in use of confidential sources, highlighted by development of codes and guidelines by the media for citing anonymous sources. Those limitations, however, seem to have eroded over the years and some observers have noted an alarming increase in reporting based on confidential news sources.

The most recent exemplification was a ruling by the Minnesota Court of Appeals this fall in Range Development Co. of Chisholm v. Star & Tribune, 885 N.W.2d 500 (Minn. App. 2016), in the converse of Cohen: a newspaper reporter seeking to maintain confidentiality of a news source. The appellate court refused to require divulgence of a confidential source by one of the newspapers involved in the Cohen case of a leaked internal report reflecting negligent care of a resident at a disabled living facility in Chisholm. The court reasoned that the state shield law, Minn. Stat. § 595.025, which covers journalists who refuse to disclose confidential sources, barred compulsory disclosure in the absence of concrete evidence that doing so would lead to persuasive evidence on the key defamation issues of falsity and actual malice of the reporting.

War winners

The multitude of unusual features of the case included the following:

  • The jury verdict was partially reversed and partially affirmed by the Minnesota court of Appeals;
  • The state Supreme Court affirmed the appellate court reversal and reversed its affirmance;
  • The U.S. Supreme Court reversed the reversal and remanded;
  • The state Supreme Court heard the case twice and decided it two different ways, sandwiched around the remand;
  • Its final adjudication upheld the plaintiff’s claims on grounds never pled or tried at trial;
  • The lawsuit was not resolved until nearly a decade  after the occurrence that precipitated it.

The litigation exemplified the old saying that “History is written by the victors.”

The victorious principals in the Cohen case used that warlike motif in a pair of well- written post-lawsuit books recounting the lawsuit, which lasted three years longer than World War II.

Attorney Rothenberg, writing seven years after the denouement in “The Taming of The Press,” meticulously described the litigation and the effect on his personal life resulting from the “legal warfare in a landmark case.” His client, Cohen, writing six years later in “Anonymous Source,” subtitled “At War Against The Media, A True Story,” concluded that “the case turned out better than I deserved” because he achieved “the rarest and sweetest [blessing], revenge…and more, which was “enough to get on with my life.”

As for other observers, the case was momentous. The late media law expert Donald M. Gillmor of the University Of Minnesota School of Journalism opined that the case would “determine the course of media law for the foreseeable future.”

In many ways, all of them are, like the case itself, partially right, and partially wrong.

The saga of the not-so-secret source remains, 25 years later, a landmark piece of litigation in the annals of First Amendment law in Minnesota and the nation.

PERSPECTIVES POINTERS

The Cohen-Cowles roller coaster

  • Jury verdict of $700,000 in Hennepin County District Court for breach of contract ($200,000) and punitive damages for misrepresentation ($500,000);
  • Court of Appeals reverses punitive award, upholds $200,00 for contract breach;
  • Minnesota Supreme Court reverses breach award;
  • U.S. Supreme Court reinstates contract claim and remands;
  • Minnesota Supreme Court awards $200,000 for promissory estoppel.

 

As originally published in Minnesota Lawyer.