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The Cohen case - why the press should win.

The Cohen case -- why the press should win

Larry Bodine's "Shop Talk at Thirty" piece (Feb. 16) on the Dan Cohen case is just plain silly and your readers may be interested in another view.

You will remember that Cohen is the guy who, acting as a political operative, passed reporters damaging information about one of the candidates in the race for lieutenant governor of Minnesota. Editors at two newspapers overruled their reporters' agreement to hide from whom they had got the information and divulged that Cohen was the source.

This disclosure, of course, was a terrific boon to readers and voters because they were then armed with all the relevant political information in time to make a decision at the polls. (Cohen's team lost.)

Cohen has asserted that truthful public disclosure of his actions harmed him and, naturally, he turned to the courts to win some money. At the trial level, the judge ruled that there were no First Amendment issues and ordered the case to be determined on contract law. Did the reporters, acting on behalf of their news organizations, enter into a lawful and binding contract which the newspapers then broke? The jury said yes.

In a split decision, a state appeals court ruled in favor of Cohen, also asserting that there were little or no First Amendment issues involved. The Minnesota Supreme Court reversed, and Cohen has pressed the case to the U.S. Supreme Court. Bodine expects the press to lose and writes in a tone that the newspapers deserve what they get and more. I do not know if the press will lose but all of us deserve better than a ruling in favor of Cohen.

Let us get this out of the way first. The newspapers made a wrong decision to divulge Cohen's identity. Had I been at the Star Tribune when that decision was considered, I would have argued long and hard against it. It was simply wrong. The newspaper has since publicly changed its policy.

That does not mean that Dan Cohen should get a nickel, or that there are issues here meant for a courtroom. Such a ruling would not be good law and the results could be catastrophic.

The most lucid analysis of this case that I have read is by Judge Gary L. Crippen in his appeals court's dissent, four excerpts of which I offer here:

* "We are not dealing with a regular contract claim. Rather, respondent asks the courts to enforce an agreement not to publish -- a pledge not to exercise press freedom. In different words, respondent seeks a judicial decree that the choice to publish information is unlawful and subject to the sanction of a money judgment. Neither the promise nor the claim are neutral to the First Amendment. Rather, both inescapably implicate freedom of the press."

* "When the state determines through civil lawsuits what constitutes a contract, when a breach occurs, and which special circumstances permit disregard of the promise, it usurps editorial decision making and chills exercise of press freedom. In addition, this regulation inevitably shapes the decision about when the promise is appropriately used. It is for editors, not the courts, to decide when promises on content should be made and to decide when publication is important. So, for example, in the context of this case, it is for editors, not for judges, to determine whether identification of respondent was necessary for an accurate report on the political event."

* "Undoubtedly, the good judgment of the press is a matter of serious public importance. Moreover, it is certainly plausible to believe that press agencies will generally deplore compulsory disclosure of sources. Nevertheless, it must be recognized that the honor and the effectiveness of press agencies is a matter of their own prerogative, subject to the public exchange of ideas, all protected by the First Amendment . . . the agencies of government, including the judiciary, have neither the right nor duty to measure or establish the wisdom and honor of the press."

* "The events here are colored singularly by a political scheme to broadcast a political attack but at the same time to evade responsibility for the act. Respondent was the chosen operative for that purpose. He went into the forums of public discussion to volunteer information, and to elicit promises that his unseemly activity would be covered up. He assembled the ingredients for an editorial predicament: to publish respondent's information as an anonymous report would be petty; to bury the information he delivered would be partial, and to attribute disclosure of the information to a candidate's campaign imprecisely would be illegitimate. To accomplish his ends, respondent chose not to approach the editors who would be expected to make publication decisions. He chose not to make his proposal in a deliberative setting. Instead, he approached reporters on their beat, expecting he might readily arouse in them some desire for nuggets of political news.

"Whether or not this course of conduct produced an agreement according to the niceties of contract law and agency law, the enforcement of the purported agreement is not a matter of state interest of the highest order. Moreover, because respondent's concealment attempt did not regard false information or private conduct, his complaint involves a state interest in civil sanctions which is unadorned by any additional cause for coercive steps against the press. We need not decide whether some agreements on the content of publication might be enforceable. In the circumstances here, the Constitution should prevail.

"Some might prefer wording this rationale on contract claims in terms of the law of contracts on agreements void as against public policy. The public policy in this instance is First Amendment law, and this alternative approach to the issue requires the same comparison of competing interests. Whichever approach is taken, the result is the same. The contract claim should not have been tried and a judgment on the claim should not be affirmed."

Larry Bodine, a lawyer, appears to argue that unless this "contract" is ruled legally enforceable, judges later will decide not to protect journalists against being forced to divulge their sources. I am not a lawyer, but that is an odd and instant castration of 20 years of rulings tied to the First Amendment.

In fact, the reverse is probably true. If reporter-source contract law is not invented by the Supreme Court, it is very unlikely that "When the prosecutor subpoenas a reporter for the name of a source in a criminal case, he will argue that there is not a legally binding relationship between a reporter and a source."

The big news for Bodine is that the press wins those battles now, when they do win them, not because of contract law but because of First Amendment interpretations and/or legislation and constitutional amendments in the states. When journalists do lose, it is not because the source and the journalist did or did not have a contract.

More likely, a ruling creating an enforceable contract between reporters and people they talk to will have the effect of revitalizing the plaintiff's bar and freezing hard-hitting reporting in ways the press's worst critics could never have fantasized.

Why? Because anyone interviewed by a reporter wishing to derail a story need only claim some kind of agreement was stated or implied and that it was broken. In the absence of formal, written contracts handed out and signed -- you get the blue copy, I get the yellow one (natch), one for your lawyer, one for mine, and the last one goes into the UCC files at the courthouse -- there will be instant paralysis while the competing claims are resolved, if they can be.

Or, failing to find actionable errors in a story and unable to win a libel suit, a person can and will still try for money by claiming that the reporter broke some agreement which constitutes a contract. There are scores of variations on this theme that occur every day in the normal transactions between reporters and the people they talk to.

Where will it end?

Down here in Reporting Land, where rubber hits the road, I fear it will end once again with judges successfully inserting lawyers into the journalist's chair, resulting in reporters and editors shying away from controversy to avoid lengthy and expensive legal hassles. The only solution once again will be the enactment and reinterpretation of remedial legislation in 50 states and more than 50 courtrooms, another full-employment decision for lawyers.

Irrespective of what you think of the actions of the newspapers or Dan Cohen, the case should not be in court. Now that it is, the case's potential impact on the application of the First Amendment cannot be ignored.

One last point. Bodine quotes the managing editor at the Star Tribune to the effect that some sources were reluctant to talk to reporters because of the newspaper's decision in the Cohen case. Of course, this is where judgments and decisions about the newspaper's conduct is entirely proper -- with readers and sources.

Objective evidence suggests how at least many have decided.

Paid circulation has grown steadily since the episode.

As for sources, the vast majority seem still to trust the reporters they talk to. I joined the newspaper as assistant managing editor for projects not long after the incident. During my six years there, we published many hard-hitting projects, as did other parts of the newspaper. Nearly all the efforts I supervised involved receiving at least some kind of information conditioned by some kind of agreed-upon caveat.

John Ullmann is a free-lance reporter and media consultant. Projects he supervised at the Star Tribune won more than four dozen awards and citations, including the 1990 Pulitzer Prize for investigative reporting.
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Title Annotation:Dan Cohen
Author:Ullmann, John
Publication:Editor & Publisher
Article Type:column
Date:Apr 6, 1991
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