Subject:  COHEN v. COWLES MEDIA CO., Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



COHEN v. COWLES MEDIA CO., dba MINNEAPOLIS STAR & TRIBUNE CO., et al.

certiorari to the supreme court of minnesota

No. 90-634.  Argued March 27, 1991 -- Decided June 24, 1991

During the 1982 Minnesota gubernatorial race, petitioner Cohen, who was
associated with one party's campaign, gave court records concerning another
party's candidate for Lieutenant Governor to respondent publishers'
newspapers after receiving a promise of confidentiality from their
reporters.  Nonetheless, the papers identified him in their stories, and he
was fired from his job.  He filed suit against respondents in state court,
alleging, among other things, a breach of contract.  The court rejected
respondents' argument that the First Amendment barred the suit, and a jury
awarded him, inter alia, compensatory damages.  The State Court of Appeals
affirmed, but the State Supreme Court reversed, holding that a contract
cause of action was inappropriate.  It then went on to address the question
whether Cohen could recover under state law on a promissory estoppel theory
even though that issue was never tried to a jury, nor briefed nor argued by
the parties, concluding that enforcement under such a theory would violate
respondents' First Amendment rights.

Held:

    1. This Court has jurisdiction.  Respondents' contention that the case
should be dismissed because the promissory estoppel theory was not argued
or presented in the courts below and because the State Supreme Court's
decision rests entirely on a state-law interpretation is rejected.  It is
irrelevant to this Court's jurisdiction whether a party raised below and
argued a federal-law issue that the state supreme court actually considered
and decided.  Orr v. Orr, 440 U. S. 268, 274-275.  Moreover, the Minnesota
Supreme Court made clear that its holding rested on federal law, and
respondents have defended against this suit all along by arguing that the
First Amendment barred the enforcement of the reporters' promises.  Pp.
3-4.

    2. The First Amendment does not bar a promissory estoppel cause of
action against respondents.  Such a cause of action, although private,
involves state action within the meaning of the Fourteenth Amendment and
therefore triggers the First Amendment's protections, since promissory
estoppel is a state-law doctrine creating legal obligations never
explicitly assumed by the parties that are enforceable through the
Minnesota courts' official power.  Cf., e. g., New York Times Co. v.
Sullivan, 376 U. S. 254, 265.  However, the doctrine is a law of general
applicability that does not target or single out the press, but rather is
applicable to all Minnesota citizens' daily transactions.  Thus, the First
Amendment does not require that its enforcement against the press be
subject to stricter scrutiny than would be applied to enforcement against
others, cf. Associated Press v. NLRB, 301 U. S. 103, 132-133, even if the
payment is characterized as compensatory damages.  Nor does that Amendment
grant the press protection from any law which in any fashion or to any
degree limits or restricts its right to report truthful information.  The
Florida Star v. B. J. F., 491 U. S. 524, distinguished.  Moreover, Cohen
sought damages for a breach of promise that caused him to lose his job and
lowered his earning capacity, and did not attempt to use a promissory
estoppel cause of action to avoid the strict requirements for establishing
a libel or defamation claim.  Hustler Magazine, Inc. v. Falwell, 485 U. S.
46, distinguished.  Any resulting inhibition on truthful reporting is no
more than the incidental, and constitutionally insignificant, consequence
of applying to the press a generally applicable law requiring them to keep
certain promises.  Pp. 4-8.

    3. Cohen's request that his compensatory damages award be reinstated is
rejected.  The issues whether his verdict should be upheld on the ground
that a promissory estoppel claim had been established under state law and
whether the State Constitution may be construed to shield the press from an
action such as this one are matters for the State Supreme Court to address
and resolve in the first instance.  P. 8.

457 N. W. 2d 199, reversed and remanded.

    White, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and Stevens, Scalia, and Kennedy, JJ., joined.  Blackmun, J., filed a
dissenting opinion, in which Marshall and Souter, JJ., joined.  Souter, J.,
filed a dissenting opinion, in which Marshall, Blackmun, and O'Connor, JJ.,
joined.
------------------------------------------------------------------------------




Subject: 90-634 -- OPINION, COHEN v. COWLES MEDIA CO.

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-634



DAN COHEN, PETITIONER v. COWLES MEDIA COMPANY, dba MINNEAPOLIS STAR AND
TRIBUNE COMPANY, et al

on writ of certiorari to the supreme court of minnesota

[June 24, 1991]



    Justice White delivered the opinion of the Court.
    The question before us is whether the First Amendment prohibits a
plaintiff from recovering damages, under state promissory estoppel law, for
a newspaper's breach of a promise of confidentiality given to the plaintiff
in exchange for information.  We hold that it does not.
    During the closing days of the 1982 Minnesota gubernatorial race, Dan
Cohen, an active Republican associated with Wheelock Whitney's
Independent-Republican gubernatorial campaign, approached reporters from
the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis
Star and Tribune (Star Tribune) and offered to provide documents relating
to a candidate in the upcoming election.  Cohen made clear to the reporters
that he would provide the information only if he was given a promise of
confidentiality.  Reporters from both papers promised to keep Cohen's
identity anon ymous and Cohen turned over copies of two public court rec
ords concerning Marlene Johnson, the Democratic-FarmerLabor candidate for
Lieutenant Governor.  The first record indicated that Johnson had been
charged in 1969 with three counts of unlawful assembly, and the second that
she had been convicted in 1970 of petit theft.  Both newspapers interviewed
Johnson for her explanation and one reporter tracked down the person who
had found the records for Cohen.  As it turned out, the unlawful assembly
charges arose out of Johnson's participation in a protest of an alleged
failure to hire minority workers on municipal construction projects and the
charges were eventually dismissed.  The petit theft conviction was for
leaving a store without paying for $6.00 worth of sewing materials.  The
incident apparently occurred at a time during which Johnson was emotionally
distraught, and the conviction was later vacated.
    After consultation and debate, the editorial staffs of the two
newspapers independently decided to publish Cohen's name as part of their
stories concerning Johnson.  In their stories, both papers identified Cohen
as the source of the court records, indicated his connection to the Whitney
campaign, and included denials by Whitney campaign officials of any role in
the matter.  The same day the stories appeared, Cohen was fired by his
employer.
    Cohen sued respondents, the publishers of the Pioneer Press and Star
Tribune, in Minnesota state court, alleging fraudulent misrepresentation
and breach of contract.  The trial court rejected respondents' argument
that the First Amendment barred Cohen's lawsuit.  A jury returned a verdict
in Cohen's favor, awarding him $200,000 in compensatory damages and
$500,000 in punitive damages.  The Minnesota Court of Appeals, in a split
decision, reversed the award of punitive damages after concluding that
Cohen had failed to establish a fraud claim, the only claim which would
support such an award.  445 N. W. 2d 248, 260 (Minn. App. 1989).  However,
the court upheld the finding of liability for breach of contract and the
$200,000 compensatory damage award.  Id., at 262.
    A divided Minnesota Supreme Court reversed the com pensatory damages
award.  457 N. W. 2d 199 (Minn. 1990).  After affirming the Court of
Appeals' determination that Cohen had not established a claim for
fraudulent misrepre sentation, the court considered his breach of contract
claim and concluded that "a contract cause of action is inappropriate for
these particular circumstances."  Id., at 203.  The court then went on to
address the question whether Cohen could establish a cause of action under
Minnesota law on a promissory estoppel theory.  Apparently, a promissory
estoppel theory was never tried to the jury, nor briefed nor argued by the
parties; it first arose during oral argument in the Minnesota Supreme Court
when one of the justices asked a question about equitable estoppel.  See
App. 38.
    In addressing the promissory estoppel question, the court decided that
the most problematic element in establishing such a cause of action here
was whether injustice could be avoided only by enforcing the promise of
confidentiality made to Cohen.  The court stated that "[u]nder a promissory
estoppel analysis there can be no neutrality towards the First Amendment.
In deciding whether it would be unjust not to enforce the promise, the
court must necessarily weigh the same considerations that are weighed for
whether the First Amendment 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."  457 N. W. 2d, at 205.  After a brief
discussion, the court concluded that "in this case enforcement of the
promise of confidentiality under a promissory estoppel theory would violate
defendants' First Amendment rights."  Ibid.
    We granted certiorari to consider the First Amendment implications of
this case.  498 U. S. --- (1990).
    Respondents initially contend that the Court should dismiss this case
without reaching the merits because the promissory estoppel theory was not
argued or presented in the courts below and because the Minnesota Supreme
Court's decision rests entirely on the interpretation of state law.  These
contentions do not merit extended discussion.  It is irrelevant to this
Court's jurisdiction whether a party raised below and argued a federal-law
issue that the state supreme court actually considered and decided.  Orr v.
Orr, 440 U. S. 268, 274-275 (1979); Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U. S. 749, 754, n. 2 (1985); Mills v. Maryland, 486 U.
S. 367, 371, n. 3 (1988); Franks v. Delaware, 438 U. S. 154, 161-162
(1978); Jenkins v. Georgia, 418 U. S. 153, 157 (1974).  Moreover, that the
Minnesota Supreme Court rested its holding on federal law could not be made
more clear than by its conclusion that "in this case enforcement of the
promise of confidentiality under a promissory estoppel theory would violate
defendants' First Amendment rights."  457 N. W. 2d, at 205.  It can hardly
be said that there is no First Amendment issue present in the case when
respondents have defended against this suit all along by arguing that the
First Amendment barred the enforcement of the reporters' promises to Cohen.
We proceed to consider whether that Amendment bars a promissory estoppel
cause of action against respondents.
    The initial question we face is whether a private cause of action for
promissory estoppel involves "state action" within the meaning of the
Fourteenth Amendment such that the protections of the First Amendment are
triggered.  For if it does not, then the First Amendment has no bearing on
this case.  The rationale of our decision in New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), and subsequent cases compels the conclusion
that there is state action here.  Our cases teach that the application of
state rules of law in state courts in a manner alleged to restrict First
Amendment freedoms constitutes "state action" under the Fourteenth
Amendment.  See, e. g., id., at 265; NAACP v. Claiborne Hardware Co., 458
U. S. 886, 916, n. 51 (1982); Philadelphia Newspapers, Inc. v. Hepps, 475
U. S. 767, 777 (1986).  In this case, the Minnesota Supreme Court held that
if Cohen could recover at all it would be on the theory of promissory
estoppel, a state-law doctrine which, in the absence of a contract, creates
obligations never explicitly assumed by the parties.  These legal
obligations would be enforced through the official power of the Minnesota
courts.  Under our cases, that is enough to constitute "state action" for
purposes of the Fourteenth Amendment.
    Respondents rely on the proposition that "if a newspaper lawfully
obtains truthful information about a matter of public significance then
state officials may not constitutionally punish publication of the
information, absent a need to further a state interest of the highest
order."  Smith v. Daily Mail Publishing Co., 443 U. S 97, 103 (1979).  That
proposition is unexceptionable, and it has been applied in various cases
that have found insufficient the asserted state interests in preventing
publication of truthful, lawfully obtained information.  See, e. g., The
Florida Star v. B. J. F., 491 U. S. 524 (1989); Smith v. Daily Mail, supra;
Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978).
    This case however, is not controlled by this line of cases but rather
by the equally well-established line of decisions holding that generally
applicable laws 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.  As the cases relied on by respondents
recognize, the truthful information sought to be published must have been
lawfully acquired.  The press may not with impunity break and enter an
office or dwelling to gather news.  Neither does the First Amendment
relieve a newspaper reporter of the obligation shared by all citizens to
respond to a grand jury subpoena and answer questions relevant to a
criminal investigation, even though the reporter might be required to
reveal a confidential source.  Branzburg v. Hayes, 408 U. S. 665 (1972).
The press, like others interested in publishing, may not publish
copyrighted material without obeying the copyright laws.  See Zacchini v.
Scripps-Howard Broadcasting Co., 433 U. S. 562, 576-579 (1977).  Similarly,
the media must obey the National Labor Relations Act, Associated Press v.
NLRB, 301 U. S. 103 (1937), and the Fair Labor Standards Act, Oklahoma
Press Publishing Co. v. Walling, 327 U. S. 186, 192-193 (1946); may not
restrain trade in violation of the antitrust laws, Associated Press v.
United States, 326 U. S. 1 (1945); Citizen Publishing Co. v. United States,
394 U. S. 131, 139 (1969); and must pay nondiscriminatory taxes.  Murdock
v. Pennsylvania, 319 U. S. 105, 112 (1943); Minneapolis Star and Tribune
Co. v. Min nesota Commissioner of Revenue, 460 U. S. 575, 581-583 (1983).
Cf. University of Pennsylvania v. EEOC, 493 U. S. 182 , 201-202 (1990).  It
is therefore beyond dispute that "[t]he publisher of a newspaper has no
special immunity from the application of general laws.  He has no special
privilege to invade the rights and liberties of others."  Associated Press
v. NLRB, supra, at 132-133.  Accordingly, enforcement of such general laws
against the press is not subject to stricter scrutiny than would be applied
to enforcement against other persons or organizations.
    There can be little doubt that the Minnesota doctrine of promissory
estoppel is a law of general applicability.  It does not target or single
out the press.  Rather, in so far as we are advised, the doctrine is
generally applicable to the daily transactions of all the citizens of
Minnesota.  The First Amendment does not forbid its application to the
press.
    Justice Blackmun suggests that applying Minnesota promissory estoppel
doctrine in this case will "punish" Respondents for publishing truthful
information that was lawfully obtained.  Post, at ---.  This is not
strictly accurate because compensatory damages are not a form of
punishment, as were the criminal sanctions at issue in Smith.  If the
contract between the parties in this case had contained a liquidated
damages provision, it would be perfectly clear that the payment to
petitioner would represent a cost of acquiring newsworthy material to be
published at a profit, rather than a punishment imposed by the State.  The
payment of compensatory damages in this case is constitutionally
indistinguishable from a generous bonus paid to a confidential news source.
In any event, as indicated above, the characterization of the payment makes
no difference for First Amendment purposes when the law being applied is a
general law and does not single out the press.  Moreover, Justice
Blackmun's reliance on cases like The Florida Star and Smith v. Daily Mail
is misplaced.  In those cases, the State itself defined the content of
publications that would trigger liability.  Here, by contrast, Minnesota
law simply requires those making promises to keep them.  The parties
themselves, as in this case, determine the scope of their legal obligations
and any restrictions which may be placed on the publication of truthful
information are self-imposed.
    Also, it is not at all clear that Respondents obtained Cohen's name
"lawfully" in this case, at least for purposes of publishing it.  Unlike
the situation in The Florida Star, where the rape victim's name was
obtained through lawful access to a police report, respondents obtained
Cohen's name only by making a promise which they did not honor.  The
dissenting opinions suggest that the press should not be subject to any
law, including copyright law for example, which in any fashion or to any
degree limits or restricts the press' right to report truthful information.
The First Amendment does not grant the press such limitless protection.
    Nor is Cohen attempting to use a promissory estoppel cause of action to
avoid the strict requirements for establishing a libel or defamation claim.
As the Minnesota Supreme Court observed here, "Cohen could not sue for
defamation because the information disclosed [his name] was true."  457 N.
W. 2d, at 202.  Cohen is not seeking damages for injury to his reputation
or his state of mind.  He sought damages in excess of $50,000 for a breach
of a promise that caused him to lose his job and lowered his earning
capacity.  Thus this is not a case like Hustler Magazine, Inc. v. Falwell,
485 U. S. 46 (1988), where we held that the constitutional libel standards
apply to a claim alleging that the publication of a parody was a state-law
tort of intentional infliction of emotional distress.
    Respondents and amici argue that permitting Cohen to maintain a cause
of action for promissory estoppel will inhibit truthful reporting because
news organizations will have legal incentives not to disclose a
confidential source's identity even when that person's identity is itself
newsworthy.  Justice Souter makes a similar argument.  But if this is the
case, it is no more than the incidental, and constitutionally in
significant, consequence of applying to the press a generally applicable
law that requires those who make certain kinds of promises to keep them.
Although we conclude that the First Amendment does not confer on the press
a constitutional right to disregard promises that would otherwise be
enforced under state law, we reject Cohen's request that in reversing the
Minnesota Supreme Court's judgment we re instate the jury verdict awarding
him $200,000 in com pensatory damages.  See Brief for Petitioner 31.  The
Minnesota Supreme Court's incorrect conclusion that the First Amendment
barred Cohen's claim may well have truncated its consideration of whether a
promissory estoppel claim had otherwise been established under Minnesota
law and whether Cohen's jury verdict could be upheld on a prom issory
estoppel basis.  Or perhaps the State Constitution may be construed to
shield the press from a promissory estoppel cause of action such as this
one.  These are matters for the Minnesota Supreme Court to address and
resolve in the first instance on remand.  Accordingly, the judgment of the
Minnesota Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

So ordered.


------------------------------------------------------------------------------




Subject: 90-634 -- DISSENT, COHEN v. COWLES MEDIA CO.

 


    SUPREME COURT OF THE UNITED STATES


No. 90-634


DAN COHEN, PETITIONER v. COWLES MEDIA COMPANY, dba MINNEAPOLIS STAR AND
TRIBUNE COMPANY, et al

on writ of certiorari to the supreme court of minnesota

[June 24, 1991]



    Justice Blackmun, with whom Justice Marshall and Justice Souter join,
dissenting.
    I agree with the Court that the decision of the Supreme Court of
Minnesota rested on federal grounds and that the judicial enforcement of
petitioner's promissory estoppel claim constitutes state action under the
Fourteenth Amendment.  I do not agree, however, that the use of that claim
to penalize the reporting of truthful information regarding a political
campaign does not violate the First Amendment.  Accordingly, I dissent.
    The majority concludes that this case is not controlled by the decision
in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), to the effect
that a State may not punish the publication of lawfully obtained, truthful
information "absent a need to further a state interest of the highest
order."  Id., at 103.  Instead, we are told, the controlling precedent is
"the equally well-established line of decisions holding that generally
applicable laws 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."  Ante, at 5.  See, e. g., Branzburg v. Hayes,
408 U. S. 665 (1972); Oklahoma Press Publishing Co. v. Walling, 327 U. S.
186, 192-193 (1946); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575, 581-583 (1983).  I disagree.
    I do not read the decision of the Supreme Court of Minnesota to create
any exception to or immunity from the laws of that State for members of the
press.  In my view, the court's decision is premised, not on the identity
of the speaker, but on the speech itself.  Thus, the court found it to be
of "critical significance," that "the promise of anonymity arises in the
classic First Amendment context of the quintessential public debate in our
democratic society, namely, a political source involved in a political
campaign."  457 N. W. 2d 199, 205 (1990); see also id., at 204, n. 6 ("New
York Times v. Sullivan, 376 U. S. 254 . . . (1964), holds that a state may
not adopt a state rule of law to impose impermissible restrictions on the
federal constitutional freedoms of speech and press").  Necessarily, the
First Amendment protection afforded respondents would be equally available
to non-media defendants.  See, e. g., Lovell v. Griffin, 303 U. S. 444, 452
(1938) ("The liberty of the press is not confined to newspapers and
periodicals. . . .  The press in its historic connotation comprehends every
sort of publication which affords a vehicle of information and opinion").
The majority's admonition that " `[t]he publisher of a newspaper has no
special immunity from the application of general laws,' " ante, at 6, and
its reliance on the cases that support that principle, are therefore
misplaced.
    In Branzburg, for example, this Court found it significant that "these
cases involve no intrusions upon speech or assembly, no . . . restriction
on what the press may publish, and no express or implied command that the
press publish what it prefers to withhold. . . .  [N]o penalty, civil or
criminal, related to the content of published material is at issue here."
408 U. S., at 681.  Indeed, "[t]he sole issue before us" in Branzburg was
"the obligation of reporters to respond to grand jury subpoenas as other
citizens do and to answer questions relevant to an investigation into the
commission of crime."  Id., at 682.  See also Associated Press v. NLRB, 301
U. S. 103, 133 (1937); Associated Press v. United States, 326 U. S. 1, 20,
n. 18 (1945); Citizen Publishing Co. v. United States, 394 U. S. 131, 139
(1969).  In short, these cases did not involve the imposition of liability
based upon the content of speech. {1}
    Contrary to the majority, I regard our decision in Hustler Magazine,
Inc. v. Falwell, 485 U. S. 46 (1988), to be precisely on point.  There, we
found that the use of a claim of intentional infliction of emotional
distress to impose liability for the publication of a satirical critique
violated the First Amendment.  There was no doubt that Virginia's tort of
intentional infliction of emotional distress was "a law of general
applicability" unrelated to the suppression of speech. {2}  Nonetheless, a
unanimous Court found that, when used to penalize the expression of
opinion, the law was subject to the strictures of the First Amendment.  In
applying that principle, we concluded, id., at 56, that "public figures and
public officials may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one here at issue
without showing in addition that the publication contains a false statement
of fact which was made with `actual malice,' " as defined by New York Times
v. Sullivan, 376 U. S. 254 (1964).  In so doing, we rejected the argument
that Virginia's interest in protecting its citizens from emotional distress
was sufficient to remove from First Amendment protection a "patently
offensive" expression of opinion.  485 U. S., at 50. {3}
    As in Hustler, the operation of Minnesota's doctrine of promissory
estoppel in this case cannot be said to have a merely "incidental" burden
on speech; the publication of important political speech is the claimed
violation.  Thus, as in Hustler, the law may not be enforced to punish the
expression of truthful information or opinion. {4}  In the instant case, it
is undisputed that the publication at issue was true.
    To the extent that truthful speech may ever be sanctioned consistent
with the First Amendment, it must be in furtherance of a state interest "of
the highest order."  Smith, 443 U. S., at 103.  Because the Minnesota
Supreme Court's opinion makes clear that the State's interest in enforcing
its promissory estoppel doctrine in this case was far from compelling, see
457 N. W. 2d, at 204-205, I would affirm that court's decision.
    I respectfully dissent.
 
 
 
 
 
------------------------------------------------------------------------------
1
    The only arguable exception is Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562 (1977).  In Zacchini, a performer sued a news
organization for appropriation of his "right to publicity value of his
performance," id., at 565, after it broadcast the entirety of his act on
local television.  This Court held that the First Amendment did not bar the
suit.  We made clear, however, that our holding did not extend to the
reporting of information about an event of public interest.  We explained
that "if . . . respondent had merely reported that petitioner was
performing at the fair and described or commented on his act, with or
without showing his picture on television, we would have a very different
case."  Id., at 569.  Thus, Zacchini cannot support the majority's
conclusion that "a law of general applicability," ante, at 6, may not
violate the First Amendment when employed to penalize the dissemination of
truthful information or the expression of opinion.

2
    The Virginia cause of action for intentional infliction of emotional
distress at issue in Hustler provided for recovery where a plaintiff could
demonstrate "that the defendant's conduct (1) is intentional or reckless;
(2) offends generally accepted standards of decency or morality; (3) is
causally connected with the plaintiff's emotional distress; and (4) caused
emotional distress that was severe."  485 U. S., at 50, n. 3.

3
    The majority attempts to distinguish Hustler on the ground that there
the plaintiff sought damages for injury to his state of mind whereas the
petitioner here sought damages "for a breach of a promise that caused him
to lose his job and lowered his earning capacity."  Ante, at 7.  I perceive
no meaningful distinction between a statute that penalizes published speech
in order to protect the individual's psychological well being or
reputational interest, and one that exacts the same penalty in order to
compensate the loss of employment or earning potential.  Certainly, our
decision in Hustler recognized no such distinction.

4
    The majority argues that, unlike the criminal sanctions we considered
in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), the liability
at issue here will not "punish" respondents in the strict sense of that
word.  Ante, at 6.  While this may be true, we have long held that the
imposition of civil liability based on protected expression constitutes
"punishment" of speech for First Amendment purposes.  See, e. g.,
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S.
376, 386 (1973) ("In the context of a libelous advertisement . . . this
Court has held that the First Amendment does not shield a newspaper from
punishment for libel when with actual malice it publishes a falsely
defamatory advertisement") (emphasis added), citing New York Times v.
Sullivan, 376 U. S. 254, 279-280 (1964); Gertz v. Robert Welch, Inc., 418
U. S. 323, 340 (1974) ("[P]unishment of error runs the risk of inducing a
cautious and restrictive exercise of the constitutionally guaranteed
freedoms of speech and press") (emphasis added).  Cf. New York Times, 376
U. S., at 297 (Black, J., concurring) ("To punish the exercise of this
right to discuss public affairs or to penalize it through libel judgments
is to abridge or shut off discussion of the very kind most needed")
(emphasis added).
    Though they be civil, the sanctions we review in this case are no more
justifiable as "a cost of acquiring newsworthy material," ante, at 6, than
were the libel damages at issue in New York Times, a permissible cost of
disseminating newsworthy material.





Subject: 90-634 -- DISSENT, COHEN v. COWLES MEDIA CO.

 


    SUPREME COURT OF THE UNITED STATES


No. 90-634



DAN COHEN, PETITIONER v. COWLES MEDIA COMPANY, dba MINNEAPOLIS STAR AND
TRIBUNE COMPANY, et al

on writ of certiorari to the supreme court of minnesota

[June 24, 1991]



    Justice Souter, with whom Justice Marshall, Justice Blackmun and
Justice O'Connor join, dissenting.

    I agree with Justice Blackmun that this case does not fall within the
line of authority holding the press to laws of general applicability where
commercial activities and relationships, not the content of publication,
are at issue.  See ante, at 2-3.  Even such general laws as do entail
effects on the content of speech, like the one in question, may of course
be found constitutional, but only, as Justice Harlan observed,


"when [such effects] have been justified by subordinating valid
governmental interests, a prerequisite to constitutionality which has
necessarily involved a weighing of the governmental interest involved. . .
.  Whenever, in such a context, these constitutional protections are
asserted against the exercise of valid governmental powers a reconciliation
must be effected, and that perforce requires an appropriate weighing of the
respective interests involved."  Konigsberg v. State Bar of California, 366
U. S. 36, 51 (1961).


Thus, "[t]here is nothing talismanic about neutral laws of general
applicability," Employment Division, Dept. of Human Resources of Oregon v.
Smith, 494 U. S. ---, --- (slip op., at 11), (1990) (O'Connor, J.,
concurring in judgment), for such laws may restrict First Amendment rights
just as effectively as those directed specifically at speech itself.
Because I do not believe the fact of general applicability to be
dispositive, I find it necessary to articulate, measure, and compare the
competing interests involved in any given case to determine the legitimacy
of burdening constitutional interests, and such has been the Court's recent
practice in publication cases.  See Hustler Magazine, Inc. v. Falwell, 485
U. S. 46 (1988); Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562
(1977).
    Nor can I accept the majority's position that we may dispense with
balancing because the burden on publication is in a sense  "self-imposed"
by the newspaper's voluntary promise of confidentiality.  See ante, at 7.
This suggests both the possibility of waiver, the requirements for which
have not been met here, see, e. g., Curtis Publishing Co. v. Butts, 388 U.
S. 130, 145 (1967), as well as a conception of First Amendment rights as
those of the speaker alone, with a value that may be measured without
reference to the importance of the information to public discourse.  But
freedom of the press is ultimately founded on the value of enhancing such
discourse for the sake of a citizenry better informed and thus more
prudently self-governed.  "[T]he First Amendment goes beyond protection of
the press and the self-expression of individuals to prohibit government
from limiting the stock of information from which members of the public may
draw."  First National Bank of Boston v. Bellotti, 435 U. S. 765, 783
(1978).  In this context, " `[i]t is the right of the [public], not the
right of the [media], which is paramount,' "  CBS, Inc. v. FCC, 453 U. S.
367, 395 (1981) (emphasis omitted) (quoting Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367, 390 (1969)), for "[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."  Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492
(1975); cf. Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 573
(1980); New York Times Co. v. Sullivan, 376 U. S. 254, 278-279 (1964).
    The importance of this public interest is integral to the balance that
should be struck in this case.  There can be no doubt that the fact of
Cohen's identity expanded the universe of information relevant to the
choice faced by Minnesota voters in that State's 1982 gubernatorial
election, the publication of which was thus of the sort quintessentially
subject to strict First Amendment protection.  See, e. g., Eu v. San
Francisco County Democratic Central Committee, 489 U. S. 214, 223 (1989).
The propriety of his leak to respondents could be taken to reflect on his
character, which in turn could be taken to reflect on the character of the
candidate who had retained him as an adviser.  An election could turn on
just such a factor; if it should, I am ready to assume that it would be to
the greater public good, at least over the long run.
    This is not to say that the breach of such a promise of confidentiality
could never give rise to liability.  One can conceive of situations in
which the injured party is a private individual, whose identity is of less
public concern than that of the petitioner; liability there might not be
constitutionally prohibited.  Nor do I mean to imply that the circumstances
of acquisition are irrelevant to the balance, see, e. g., Florida Star v.
B. J. F., 491 U. S. 524, 534-535, and n. 8 (1989), although they may go
only to what balances against, and not to diminish, the First Amendment
value of any particular piece of information.
    Because I believe the State's interest in enforcing a newspaper's
promise of confidentiality insufficient to outweigh the interest in
unfettered publication of the information revealed in this case, I
respectfully dissent.
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