A Source May Hit You With Estoppel   

Common-law theory can make an informal promise legally binding.

Life in the legal realm is made harder for the press by the constant fear that someone will think up some new and different way to sue. To make matters worse, someone always does.

The latest fretful wrinkle is something that does not sound like the name of a new fad in press law, but it just may turn out to be. It is called "promissory estoppel" (thus illustrating anew the befogging nature of lawspeak).

For those who haven't the foggiest idea what that is, it is the legal threat reporters and editors may face if they break a promise of confidentiality to a news source. Such a threat has now gained the constitutional blessing of the U.S. Supreme Court.

The now-famous case of the Minnesota newspapers' broken promise to a source (the case described in first-person terms by Bill Salisbury of the St. Paul Pioneer Press in WJR last month) has uncorked promissory estoppel in the legal world.

What the press may not yet realize fully, however, is that it will be a whole lot easier to lose a promissory estoppel case than any libel or privacy lawsuit.

Promissory estoppel is a common-law theory that can make a simple oral promise legally binding and its violation the basis for a damages lawsuit. The promise does not have to be formal at all (as in a specific binding contract in which each side assumes a definite duty, leading someone to sue for breach of contract if the deal falls through).

Under promissory estoppel, a person who uses nearly any kind of promise to get someone to take action, and has good reason to think that the promise will do that, has a duty to carry out the promise if the action then occurs. This kind of promise is legally binding if failure to enforce the promise would be "unjust."

Those are very open-ended concepts, leaving it to a jury to decide when a promise was made and when justice would be served by enforcing it.

But what gives the jury real power is that, according to the Supreme Court, the First Amendment does not protect the press in such a case.

If a state makes the press subject to promissory estoppel and everybody else in the state who makes a promise is similarly subject to that law, then the First Amendment does not come into play at all. So the court ruled 5-4 in the Minnesota case, Cohen V. Cowles Media . (By contrast, those who sue for libel or invasion of privacy have to climb over a lot of First Amendment obstacles to win.)

But, in a lawsuit based on promissory estoppel, a state is merely requiring "those making promises to keep them," Justice Byron R. White wrote for the majority. If the press is not singled out, the state may force the press to keep its promises like anyone else.

The Minnesota case was sent back to the state Supreme Court to decide whether the Pioneer Press and the Minneapolis Star Tribune may now be sued by political publicist Dan Cohen on a promissory estoppel theory for burning their source.

The Cohen case, from its beginning in 1983, had never involved a claim of promissory estoppel. Cohen had sued on a claim of breach of contract and had won $200,000 in damages.

But the Minnesota Supreme Court later ruled that he had no such claim, since the secrecy deal he made with the newspapers was not a contract under state law. When that court held a hearing on the Cohen case, however, one of the judges brought up promissory estoppel as an alternative theory for Cohen's claim; that led the court to rule that the First Amendment would bar such a claim when the broken promise involved a story about politics. Eventually the U.S. Supreme Court overturned that argument but did not necessarily guarantee that Cohen would win on that theory. It did rule, however, that the Constitution would not keep him from trying, and the case went back to the state.

In the aftermath of that decision, the press clearly is on notice that any negotiations it has with potential news sources over naming or not naming them must now be conducted very carefully.

Even if reporters or editors do not make a distinct promise of confidentiality, as in the formal terms of a binding oral contract, reporters or editors might say something informal that sounds like a promise of confidentiality. The source hears it that way and acts on that understanding. A promissory estoppel lawsuit very likely looms on the horizon if the source is then identified in the story – no matter how careful reporters or editors may think they have been to avoid a full-fledged guarantee of secrecy.

In some states, as perhaps in Minnesota, state courts may show sympathy for the press and bar such lawsuits. But that is a battle that now would have to be won one state at a time – if at all.

Since many news organizations (broadcast outlets, in particular) operate in more than one state, they may find themselves trying to obey conflicting state laws on promissory estoppel. The predictable result, of course, would be that they will censor their dealings with sources just to be safe. l