Burning The Source
The St. Paul Pioneer Press reporter tells how he promised Dan Cohen confidentiality, then exposed him on orders of an editor. The case wound up in the Supreme Court.
By Bill Salisbury
Bill Salisbury is the political writer at the St. Paul Pioneer Press.
Nine years ago, an editor at the St. Paul Pioneer Press overruled my promise of confidentiality and ordered me to burn a source.
Stunned and angry, I got up from my desk in the press room of the Minnesota statehouse and kicked a steel file cabinet as hard as I could. I yelled a string of profanities.
Then I returned to my computer terminal and rewrote my story, naming Minneapolis public relations executive Dan Cohen as the source who had leaked damaging information about a rival political candidate on the eve of the 1982 gubernatorial election.
I had a terrible knot in my stomach as I wrote that story. I thought my newspaper was making a big mistake.
This year the United States Supreme Court agreed. In a 5-4 decision June 24, the court ruled that the First Amendment does not protect a newspaper from a lawsuit if it breaks a promise to keep the name of a source secret. It said Cohen can sue the Pioneer Press and The Star Tribune of Minneapolis, Minnesota's two largest newspapers, for betraying his identity.
"Minnesota law simply requires those making promises to keep them," Justice Byron White wrote for the majority. "The First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law."
Star Tribune reporter Lori Sturdevant and I had each promised Cohen that his name would not be published. Our editors broke our promises. The day Cohen's name appeared in print, he lost his job at a large advertising agency. He sued the papers for fraud and breach of contract.
In 1988, a six-member jury in Minneapolis awarded him $200,000 in compensatory damages and $500,000 in punitive damages. A year later, a state appeals court threw out the punitive damages but upheld the $200,000 award for breach of contract. The state Supreme Court overturned that award in 1990, ruling that enforcing a reporter's promise of confidentiality would violate the newspapers' First Amendment rights. The U.S. Supreme Court reversed that ruling and sent the case back to the Minnesota Supreme Court. Now the state court must decide whether the newspapers had an enforceable contract with Cohen.
The Cohen case may permanently change the relationship between reporters and anonymous sources. It should discourage editors from breaking reporters' promises, thus making sources feel more confident that their names will be protected. But the ruling also chips away at the press's First Amendment protections, and it invites more lawsuits over broken promises.
A look at how all this happened might be instructive to other reporters and editors; I think if I had heard about a reporter who had to burn his source before this episode, I might have been more careful in my dealings with Dan Cohen.
When Cohen phoned on Wednesday, October 27, 1982, and asked to meet me, I was annoyed. It was just six days before the general election, and I wanted to work on a Sunday wrap-up on the race for Minnesota governor between Democratic-
Farmer-Laborite Rudy Perpich and Independent-Republican Wheelock Whitney. (Don't be confused by Minnesota's hyphenated party names: DFLers are Democrats and IRs are Republicans.)
Despite my annoyance, I invited Cohen to my office in the basement of the Capitol. He was, after all, an active Republican and Whitney campaign adviser. I didn't know Cohen well. He was a former Minneapolis City Council president who had written occasional op-ed pieces for the old Minneapolis Star . I had interviewed him once a few years earlier for his analysis of a Minneapolis mayoral election.
Around 10 a.m., Cohen stepped into the office I shared with three other Pioneer Press reporters, motioned me to come into the hall and asked if we could go someplace to talk privately. "Sure," I said, and led him to the cafeteria.
As we walked through the Capitol hallway, Cohen was tense, dismissing my attempts to make small talk. Wearing a trench coat, he reminded me of a character from a spy novel. But he didn't seem terribly concerned about protecting his identity. To find me, he had walked past the offices of a half dozen reporters for the state's major news organizations, and he didn't object when I suggested the cafeteria, a favorite hangout for legislators, state employees, lobbyists and political activists.
In the cafeteria, we each grabbed a cup of coffee and found a secluded table. When we sat down, Cohen reached into his breast pocket and pulled out some folded papers. "I have some documents which may or may not relate to a candidate in the upcoming election," he said, "and if you will give me a promise of confidentiality, that is, that I will be treated as an anonymous source, that my name will not appear in any material in connection with this, and you will also agree that you're not going to pursue with me a question of who my source is, then I'll furnish you with the documents."
I asked a few perfunctory questions about the papers, but Cohen made it clear he wouldn't tell me anything until I promised to keep his name secret. So I made the promise, and he handed over the documents.
The papers were the criminal records of Marlene Johnson, the DFL candidate for lieutenant governor. One document showed that she had been arrested in 1969 on three misdemeanor counts of unlawful assembly, but the charges had been dismissed. "So what?" I thought to myself. "That isn't news."
But the second document revealed that Johnson had been arrested, tried and convicted of petty theft in 1970. "Now, that's a story," I thought. I told Cohen the information could be "political dynamite" and asked for more details. He didn't have any, so I thanked him, rushed back to my office and phoned my city editor, Doug Hennes, to tell him about Johnson's record. We agreed that I should pursue the story.
The next step was to find Johnson. When I phoned the Perpich-Johnson campaign headquarters, I learned she was attending a meeting in the Capitol. As I rushed up and down the corridors looking for her, I kept running into Gerry Nelson, a veteran Associated Press reporter and the unofficial dean of the Capitol press corps. After a few encounters, Nelson asked, "Are you looking for Marlene Johnson?" I admitted I was, and we quickly discovered that Cohen had slipped the same documents to both of us. I had assumed I had an exclusive. I scolded myself for failing to ask Cohen not to give the information to anyone else.
Nelson and I agreed to team up to search for Johnson. When we located her, we arranged an interview at 3 p.m. in her advertising and public relations agency in downtown St. Paul.
In the interview Johnson confirmed she was the subject of the documents. Twelve years earlier, she said, she had shoplifted $6 worth of sewing supplies at a time when she was emotionally distraught over the recent death of her father. Eight months later, the judge had expunged the conviction from her record. She had told Perpich about it before he selected her as his running mate, she said, and he had dismissed it as irrelevant to the campaign.
Johnson accused the Whitney organization of leaking the documents as part of a "last-minute smear campaign." She also revealed that Sturdevant of the Star Tribune had the same information. That was the last thing I wanted to hear. Our closest competition was onto the story. (Later, I learned that Cohen had also leaked the documents to WCCO-TV reporter Dave Nimmer. But Nimmer never did a story because he didn't think they were newsworthy.)
After the interview, I dashed across the street to the Pioneer Press newsroom and met with Hennes in his office. I said the "Strib" had the story and told him that Cohen was my confidential source. Like me, Hennes knew who Cohen was but didn't know him well. As we talked, Managing Editor Deborah Howell (now the Washington bureau chief of the Newhouse News Service) stuck her head in the door, asking what we were up to. I was reluctant to tell her – Howell and Johnson were good friends. But as soon as I said I was working on a story involving Johnson, Howell smiled, said "See ya," and walked away. As far as I know, she stayed out of the story, as she did with all my stories about Johnson.
Hennes and I agreed we should run a story on Johnson because voters had a right to know if a candidate had a criminal record, even if it was for a misdemeanor. So I returned to the Capitol, phoned the Perpich and Whitney campaigns for reactions and started writing.
Unknown to me, when Hennes told Executive Editor David Hall what I was doing, he decided within five minutes to name Cohen in the story. Hall didn't know Dan Cohen from Dan Patch, but he considered his action "sleazy." Cohen was trying to manipulate the media in an eleventh-hour attempt to discredit the DFL ticket, and he wanted to keep the public in the dark about his involvement. Hall said the fact that a Whitney campaign operative was peddling the story was as newsworthy as the information he handed over. Given the proximity of the election, the dated nature of Johnson's misdemeanor and Cohen's unsavory tactics, Hall thought our readers should know how we got the information.
Hall also wanted to name Cohen in order to clear up a dispute about the disclosure. Johnson had accused the Whitney campaign of a last-minute smear job, and Whitney's campaign manager, Jann Olsten, had denied any involvement.
Shortly after 5 p.m., Hennes phoned me at the Capitol telling me Hall had ordered him to name Cohen in the story. I couldn't believe it! I had never dreamed that an editor would order me to burn a confidential source. It had never happened before to me or anyone I knew.
I told Hennes we couldn't name Cohen. I had made a deal, and we had to stick with it, even if it wasn't a good deal. It was a matter of honor. I had a moral and ethical obligation to keep my promise. (It didn't occur to me that we might also have a legal obligation.) Moreover, if I couldn't promise sources that my editors would honor my promises of confidentiality, who would confide in me? Our sources would dry up.
Hennes was sympathetic, but he said Hall, now editor of The Record in Hackensack, New Jersey, had made the call and that was that. I phoned Hall to protest, making the same arguments I had used with Hennes. They didn't work. Hall said we had an obligation to give our readers a complete and truthful account of what had happened, including the source of the leak, and that obligation outweighed my promise to Cohen.
I suggested linking the Whitney campaign to the information by using a veiled reference identifying Cohen as a "Whitney campaign advisor" or "Whitney supporter," but not by name. Besides, I argued, hardly anybody in St. Paul knew Cohen.
Hall rejected the veiled reference option, saying it would cast suspicion on apparently innocent people, including Whitney himself.
The ruckus I made after hanging up attracted Sturdevant, the Star Tribune reporter and a good friend. When she came running down the hall in the Capitol press room, I told her and fellow Pioneer Press reporter Aron Kahn that I had been ordered to burn a confidential source. "You're shitting me!" Kahn said. Sturdevant, who figured out I was talking about Cohen, consoled me and then walked back to her office. Later, she told a Star Tribune editor that the Pioneer Press had decided to name Cohen. I don't know whether that influenced her newspaper's decision.
After I calmed down, I phoned Cohen. "We're in trouble," I said. When I told him of Hall's decision to name him, he erupted in anger. Other reporters have gone to jail rather than reveal their sources, he said. Why didn't I tell him that an editor could revoke my promise? Because I didn't know he could, I replied. I felt terrible. He had every right to be angry.
I relayed Hall's request that Cohen give us permission to use his name. Absolutely not, he replied, and he asked me to tell Hall that he insisted we honor my promise to him. For the next hour or two, I relayed messages between Cohen and my editors. Between calls, I banged out the story.
Across the Mississippi River at the Star Tribune , when Sturdevant told Assistant City Editor Roger Buoen about Johnson's court records, he dispatched another reporter, David Anderson, to Ramsay County's dead records warehouse in St. Paul to locate the original court files. In addition to finding the documents, Anderson discovered a sign-out sheet that showed the records had been checked out the day before by Gary Flakne, a former Hennepin County attorney and prominent Whitney supporter. Flakne was the only person who had checked out the file in several years. Anderson called Flakne, who told him "I did it for Dan Cohen." That independent confirmation of Cohen's role from a source who had not been promised confidentiality influenced the Tribune's decision to name Cohen.
(The Whitney campaign had first got wind of Johnson's record a few days earlier when, during a commercial break on a radio talk show, the host mentioned an "old criminal offense" by one of the DFL candidates to Lauris Krenik, the IR candidate for lieutenant governor. At Krenik's suggestion, Flakne investigated. After finding the records, he met with Cohen and three other Whitney campaign operatives early Wednesday morning to discuss the material. They agreed the documents should be leaked to the press, and Cohen volunteered to deliver copies to four reporters.)
During the afternoon news huddle at the Star Tribune , about 15 editors debated the Johnson records. Some editors said the records weren't newsworthy; others argued they were important and so was the Whitney connection. A third group asserted the paper had to protect Sturdevant's promise of confidentiality at all costs, while others suggested using a veiled reference to link the information to Whitney without naming Cohen. They failed to resolve the issue in more than an hour of debate.
At her editor's request, Sturdevant called Cohen to ask that he release her from her promise of confidentiality. He refused.
Around 9 p.m., an hour before deadline, "Strib" Assistant Managing Editor Mike Finney decided to publish the story using Cohen's name. Managing Editor Frank Wright concurred.
Sturdevant was outraged and pulled her byline off the story. Looking back, I wish I had done that. It simply didn't occur to me.
On the 10 p.m. newscasts that evening, some Twin Cities radio and television stations used Gerry Nelson's AP story about Johnson's record. The story said court documents "were slipped to reporters," but it didn't name Cohen.
The next morning, Cohen's name was buried in my story for the Pioneer Press , which focused on Johnson. Under the headline "Perpich running mate arrested in petty theft case in '70," my lead read: "Marlene Johnson, the DFL candidate for lieutenant governor, was convicted 12 years ago of shoplifting $6 worth of sewing supplies." The second paragraph said a "prominent Independent-Republican" had leaked Johnson's court records to reporters, but at Hall's direction, Cohen wasn't named until the 13th paragraph – two-thirds of the way through the story.
By contrast, the Star Tribune highlighted Cohen's involvement. Its headline read: "Marlene Johnson arrests disclosed by Whitney ally," and Cohen was named high up in the story.
Neither paper told the whole story; neither reported that it had broken its reporter's promise of confidentiality to Cohen.
That morning, Cohen suffered the kind of retribution that confidentiality is supposed to guard against: He lost his job. Cohen said he was fired; his supervisor said he resigned.
In the Twin Cities media, the spotlight quickly shifted from Johnson's record to the Whitney campaign's role in revealing that record.
On Friday, both newspapers carried stories about Cohen losing his job, including criticism of him from his former employer. In addition, Star Tribune columnist Jim Klobuchar, a friend of DFL gubernatorial candidate Perpich, wrote that Cohen's tactics were "sleazy." The next day, the Star Tribune ran an editorial page cartoon that depicted Cohen trick-or-treating as a garbage can labeled "last minute campaign smears." The attacks on Cohen seemed unusually harsh.
The following Tuesday, Perpich and Johnson were elected in a landslide. The election didn't turn on the Cohen story; the DFL ticket was well ahead in the polls going into the final week of the campaign. But the Cohen story undoubtedly hurt Whitney's chances of closing the gap.
At the two newspapers, the decision to name Cohen sparked a fury of protests. My fellow Pioneer Press reporters criticized Hall in discussions and signed memos on the newsroom bulletin board. One reporter told me I had made a bad agreement with Cohen, but almost everyone in the newsroom agreed the disclosure of his name was far worse.
To clear the air in the newsroom, Hall called a meeting of about 20 editors and senior reporters to discuss our policies and practices. The group overwhelmingly opposed the decision to name Cohen. Hall defended his decision. Although he thought I should have consulted with an editor before cutting the deal with Cohen, he told the group he didn't blame me for the situation and gave me a strong vote of confidence.
Sturdevant wasn't as lucky at the Star Tribune . Some editors blamed her for the mess, she said, and Executive Editor Joel Kramer, who was not with the paper when the Cohen story broke, once told her he might have fired her had he been in charge when she made the deal with Cohen. As a result, Sturdevant has refused to give interviews about the case.
At the time I promised confidentiality to Cohen, the Pioneer Press had a written policy – one that many of my colleagues and I had never seen – requiring a reporter to get permission from an editor before promising anonymity to a source. But to my knowledge, no one heeded it; promises of confidentiality without permission were routine. The policy was simply unworkable. A reporter can't stop a source who's offering an anonymous tip or an off-the-record interview to say, 'Hold it, I've got to call an editor for permission.'"
A new Pioneer Press policy states that the newspaper will honor a reporter's pledge to a source "under all but the most extreme cases." It also says that only the managing editors or the editor may decide whether to publish information from an anonymous source.
The Star Tribune also had a policy requiring reporters to get an editor's permission before promising anonymity to a source. But Sturdevant said she was unaware of that policy when she talked to Cohen.
In response to the Cohen case, Star Tribune editors in 1988 adopted a new policy on anonymous sources. It requires reporters to "consult with an editor before promising anonymity for information that is potentially damaging to others where there is a reasonable chance that the source could become as big a story as the information."
The paper's policy also says the newspaper "will honor the promises we make except in the most extraordinary circumstances." It doesn't say what those circumstances are.
The Twin Cities Newspaper Guild, which represents the news staffs at both papers, responded to the Cohen case by urging reporters not to disclose the name of a source to editors unless the source agrees to the disclosure.
Faced by editors with a choice of disclosing the name of a confidential source or killing the story, the guild urges reporters to let the story be killed.
The Cohen case hasn't had a dramatic impact on the way journalism is practiced in the Twin Cities. Reporters still go off the record and promise confidentiality to sources, and politicians and government officials still leak documents and provide tips.
But before Cohen, those practices were routine. Now editors discourage the use of anonymous sources, and reporters seem to use them more sparingly. I have learned to carefully work out the details of any agreement I make with a source, particularly whether I have permission to reveal his or her name to an editor. Several fellow reporters have told me they do the same thing.
Some sources have dried up. For instance, immediately after the Cohen incident, two IR Party leaders who had been among my most talkative tipsters stopped feeding me background information because they feared I couldn't protect their identity. Potential whistle-blowers in state government have refused to talk to Pioneer Press reporters for the same reason. Lawyers have cited the Cohen case as a reason for refusing to talk to me on background.
The nine-year-old Cohen case isn't over. The Minnesota Supreme Court must still decide whether to award him damages.
A bitter Cohen, who believes the newspapers tarnished his reputation and career, felt vindicated by the U.S. Supreme Court ruling.
"Thanks to their arrogance and stupidity, the Star Tribune and the St. Paul Pioneer Press are nationally certified as liars," he said. l