The High Cost of Burning a Source   

Two Minnesota papers hurt themselves – and press freedom.

Minnesota's two leading newspapers now know the price of breaking a promise of secrecy to a news source. In dollar terms, it came out to a total of $200,000 (plus lawyers' fees). But the other cost, incalculable but enormous, is the damage that's been done to press freedom.

It now appears that the final chapter has been written in the nearly decade-long legal saga that began in 1982 when editors at the Minneapolis Star Tribune and the St. Paul Pioneer Press overrode promises of confidentiality made by their reporters, and published the identity of a source.

Minneapolis political campaign operative Dan Cohen sued the newspapers for revealing his name in stories about political dirty tricks on the eve of a state election. The editors determined that Cohen's identity as the source was newsworthy and, for that reason, more important than the pledges of secrecy given him by reporters he tipped off.

What the newspapers did to Cohen may have been an ethical outrage, but practically no one – except Cohen and his lawyers – thought it was illegal. Cohen went ahead with his lawsuit anyway, seeking damages because the broken promise had cost him his job.

That celebrated lawsuit went to the U.S. Supreme Court, but Cohen did not win a final victory there. Now, he has. The Supreme Court sent the case back to the Minnesota Supreme Court, which ruled in January that Cohen was due $200,000 in damages. The papers are not considered likely to appeal further, but they have not paid the damages because they are still fighting a claim for interest.

The newspapers already had lost their First Amendment claim when the U.S. Supreme Court rejected it last June in its decision in Cohen v. Cowles Media . Since everybody else can be sued for breaking a binding promise, so can the press, the court ruled by a 5-4 vote.

But the Minnesota papers still had a chance: They could try to persuade the state court that their decision to publish Cohen's identity should be protected under the state constitution. The Minnesota constitution guarantees that the press "shall remain forever inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right."

That phrasing, said the papers, reads more broadly than the First Amendment and thus should give the press more legal cover. The state court said it was not ready to rule that way. The issue of enforcing promises of anonymity to news sources is brand new, it said, and may have implications beyond the Cohen case. That court concluded: "We are not prepared to say here that the newsworthiness of Cohen's identity had achieved a level of such grave importance as to require invalidation of the anonymity promise on grounds of public policy."

The Star Tribune and Pioneer Press fared no better on other arguments. One of those claims was that it would be "unjust" to punish them for revealing Cohen's identity, because that was a part of "the whole truth" of the dirty-tricks story. Reacting to that, the state Supreme Court set itself up as a super-editor. Had the newspapers merely said that their source was "someone close to the opposing gubernatorial ticket," the court suggested, that "would have sufficed as a sufficient reporting of the 'whole truth.' "

Moreover, the state court said, editors at the two newspapers believed that they "generally must keep promises of confidentiality given a news source... It was this longstanding journalistic tradition that Cohen, who has worked in journalism, relied upon in asking for and receiving a promise of anonymity."

The state court then wrapped up its opinion with a little lecture on morality: "Neither side in this case clearly holds the higher moral ground, but in view of the [newspapers'] concurrence in the importance of honoring promises of confidentiality, and absent the showing of any compelling need in this case to break that promise, we conclude that the resultant harm to Cohen requires a remedy here to avoid an injustice. In short, [the newspapers] are liable in damages to [Cohen] for their broken promise."

Since a jury already had decided Cohen should get $200,000 in damages (even though that verdict was based on a different theory than the one the state court adopted), the court imposed damages in that amount and refused to order a new trial.

From the day Cohen filed his lawsuit, the case posed two serious dangers: that the courts would convert the normal ethical duty to keep promises of source secrecy into a binding duty under the law, and that the courts would judge such a case by second-guessing decisions the editors made in breaking such a promise. Both of those threats ultimately became reality. The First Amendment was no refuge, and neither was a state constitution's guarantee of a free press.

In the legal atmosphere that prevails these days, the press knows well that it can expect no favors. But the press also could learn, from cases like Dan Cohen's, that it might improve its chances with the law if it were truer to its own code of ethics. l