Court to Hear Media Confidentiality Issue : Judiciary: It will determine if newspapers may be sued for naming a source after promising anonymity. Justices grow less willing to shield press.


The Supreme Court agreed Monday to decide whether the Constitution shields news organizations from being sued for revealing the name of a confidential source.

The high court will delve into the inner workings of the news business, where sources often insist that reporters promise to protect their identifies.

Typically, reporters absolutely refuse to identify confidential sources, even at the cost of going to jail. The case (Cohen vs. Cowles Media Co., 90-634) concerns the exception to the rule.

In the closing days of the 1982 election campaign, the editors of two Minnesota newspapers overruled their reporters and chose to disclose the name of a Republican political operative who had provided damaging information about the Democratic candidate for lieutenant governor.


Dan Cohen, the Republican operative, lost his job after his name was published.

He sued the two newspapers, the Star Tribune of Minneapolis and the St. Paul Pioneer Press Dispatch, contending that they had breached a promise to him. A jury agreed and awarded him $700,000.

But a state appeals court reduced the amount to $200,000, and, in July, the Minnesota Supreme Court threw out the jury verdict entirely.

The state court ruled that the 1st Amendment’s protection of freedom of the press outweighs the state law’s protection of implied contracts. To allow such a verdict, the court said, would “mean second-guessing the newspaper editors” during a political campaign, which it described as “the classic 1st Amendment context.”


On Monday, the Supreme Court justices announced that they would review that conclusion. The case will be heard early next year, with a ruling due by July.

News media attorneys said they were surprised by the court’s action. The state court decision focused on Minnesota law, and the Supreme Court usually steers away from issues that involve interpretations of state law. Moreover, the high court tends to step in when there are similar conflicts around the country, yet suits from confidential sources are rare in the news business.

The Supreme Court under Chief Justice William H. Rehnquist has been less willing than in the past to shield the news media from lawsuits and court orders.

Last year, the court said a newspaper could be forced to pay a libel judgment for having reported damaging charges about a candidate just before an election. In June, the court said news columnists and editorial writers are not immune from suits simply because they state opinions. And, three weeks ago, the court let stand a judge’s order forcing Cable News Network to turn over tapes of conversations made from prison by ousted Panamanian dictator Manuel A. Noriega.


Elliot Rothenberg, Cohen’s attorney, stressed that his client did not have just a casual conversation with the news reporters but instead got “a quite formal, unambiguous promise” that his name would not be disclosed.

In the 1982 campaign, Cohen was working for the Republican candidate for governor. He obtained court documents showing that Marlene Johnson, the Democratic candidate for lieutenant governor, had been arrested for unlawful assembly and for shoplifting. Cohen then called reporters and offered to give them the documents, but only if his identity was hidden.

The Associated Press agreed to the deal and ran a story on Johnson without identifying Cohen as the source. WCCO-TV, a CBS affiliate, refused to go along with the deal and did not run the story.

Reporters for the two key newspapers in the Twin Cities agreed to the deal and wrote stories without mentioning Cohen. However, their editors later insisted that Cohen’s name and his links to the Republican candidate be included in the stories.


In his appeal to the Supreme Court, Cohen said that the 1st Amendment should not be read to give the news media “a constitutional privilege to break promises or contracts with others . . . . No one, including the news media, should be above the law.”

Press lawyers said they knew of only one or two other lawsuits against the media for disclosing a confidential source, and none in which a verdict against the press was upheld.

Quite regularly, however, reporters fight against court orders intended to force them to identify sources.