The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_634/90_634.d1

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Subject: 90-634 -- DISSENT, COHEN v. COWLES MEDIA CO.




    SUPREME COURT OF THE UNITED STATES


No. 90-634


DAN COHEN, PETITIONER v. COWLES MEDIA COMPANY, dba MINNEAPOLIS STAR AND
TRIBUNE COMPANY, et al

on writ of certiorari to the supreme court of minnesota

[June 24, 1991]



    Justice Blackmun, with whom Justice Marshall and Justice Souter join,
dissenting.
    I agree with the Court that the decision of the Supreme Court of
Minnesota rested on federal grounds and that the judicial enforcement of
petitioner's promissory estoppel claim constitutes state action under the
Fourteenth Amendment.  I do not agree, however, that the use of that claim
to penalize the reporting of truthful information regarding a political
campaign does not violate the First Amendment.  Accordingly, I dissent.
    The majority concludes that this case is not controlled by the decision
in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), to the effect
that a State may not punish the publication of lawfully obtained, truthful
information "absent a need to further a state interest of the highest
order."  Id., at 103.  Instead, we are told, the controlling precedent is
"the equally well-established line of decisions holding that generally
applicable laws do not offend the First Amendment simply because their
enforcement against the press has incidental effects on its ability to
gather and report the news."  Ante, at 5.  See, e. g., Branzburg v. Hayes,
408 U. S. 665 (1972); Oklahoma Press Publishing Co. v. Walling, 327 U. S.
186, 192-193 (1946); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575, 581-583 (1983).  I disagree.
    I do not read the decision of the Supreme Court of Minnesota to create
any exception to or immunity from the laws of that State for members of the
press.  In my view, the court's decision is premised, not on the identity
of the speaker, but on the speech itself.  Thus, the court found it to be
of "critical significance," that "the promise of anonymity arises in the
classic First Amendment context of the quintessential public debate in our
democratic society, namely, a political source involved in a political
campaign."  457 N. W. 2d 199, 205 (1990); see also id., at 204, n. 6 ("New
York Times v. Sullivan, 376 U. S. 254 . . . (1964), holds that a state may
not adopt a state rule of law to impose impermissible restrictions on the
federal constitutional freedoms of speech and press").  Necessarily, the
First Amendment protection afforded respondents would be equally available
to non-media defendants.  See, e. g., Lovell v. Griffin, 303 U. S. 444, 452
(1938) ("The liberty of the press is not confined to newspapers and
periodicals. . . .  The press in its historic connotation comprehends every
sort of publication which affords a vehicle of information and opinion").
The majority's admonition that " `[t]he publisher of a newspaper has no
special immunity from the application of general laws,' " ante, at 6, and
its reliance on the cases that support that principle, are therefore
misplaced.
    In Branzburg, for example, this Court found it significant that "these
cases involve no intrusions upon speech or assembly, no . . . restriction
on what the press may publish, and no express or implied command that the
press publish what it prefers to withhold. . . .  [N]o penalty, civil or
criminal, related to the content of published material is at issue here."
408 U. S., at 681.  Indeed, "[t]he sole issue before us" in Branzburg was
"the obligation of reporters to respond to grand jury subpoenas as other
citizens do and to answer questions relevant to an investigation into the
commission of crime."  Id., at 682.  See also Associated Press v. NLRB, 301
U. S. 103, 133 (1937); Associated Press v. United States, 326 U. S. 1, 20,
n. 18 (1945); Citizen Publishing Co. v. United States, 394 U. S. 131, 139
(1969).  In short, these cases did not involve the imposition of liability
based upon the content of speech. {1}
    Contrary to the majority, I regard our decision in Hustler Magazine,
Inc. v. Falwell, 485 U. S. 46 (1988), to be precisely on point.  There, we
found that the use of a claim of intentional infliction of emotional
distress to impose liability for the publication of a satirical critique
violated the First Amendment.  There was no doubt that Virginia's tort of
intentional infliction of emotional distress was "a law of general
applicability" unrelated to the suppression of speech. {2}  Nonetheless, a
unanimous Court found that, when used to penalize the expression of
opinion, the law was subject to the strictures of the First Amendment.  In
applying that principle, we concluded, id., at 56, that "public figures and
public officials may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one here at issue
without showing in addition that the publication contains a false statement
of fact which was made with `actual malice,' " as defined by New York Times
v. Sullivan, 376 U. S. 254 (1964).  In so doing, we rejected the argument
that Virginia's interest in protecting its citizens from emotional distress
was sufficient to remove from First Amendment protection a "patently
offensive" expression of opinion.  485 U. S., at 50. {3}
    As in Hustler, the operation of Minnesota's doctrine of promissory
estoppel in this case cannot be said to have a merely "incidental" burden
on speech; the publication of important political speech is the claimed
violation.  Thus, as in Hustler, the law may not be enforced to punish the
expression of truthful information or opinion. {4}  In the instant case, it
is undisputed that the publication at issue was true.
    To the extent that truthful speech may ever be sanctioned consistent
with the First Amendment, it must be in furtherance of a state interest "of
the highest order."  Smith, 443 U. S., at 103.  Because the Minnesota
Supreme Court's opinion makes clear that the State's interest in enforcing
its promissory estoppel doctrine in this case was far from compelling, see
457 N. W. 2d, at 204-205, I would affirm that court's decision.
    I respectfully dissent.





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1
    The only arguable exception is Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562 (1977).  In Zacchini, a performer sued a news
organization for appropriation of his "right to publicity value of his
performance," id., at 565, after it broadcast the entirety of his act on
local television.  This Court held that the First Amendment did not bar the
suit.  We made clear, however, that our holding did not extend to the
reporting of information about an event of public interest.  We explained
that "if . . . respondent had merely reported that petitioner was
performing at the fair and described or commented on his act, with or
without showing his picture on television, we would have a very different
case."  Id., at 569.  Thus, Zacchini cannot support the majority's
conclusion that "a law of general applicability," ante, at 6, may not
violate the First Amendment when employed to penalize the dissemination of
truthful information or the expression of opinion.

2
    The Virginia cause of action for intentional infliction of emotional
distress at issue in Hustler provided for recovery where a plaintiff could
demonstrate "that the defendant's conduct (1) is intentional or reckless;
(2) offends generally accepted standards of decency or morality; (3) is
causally connected with the plaintiff's emotional distress; and (4) caused
emotional distress that was severe."  485 U. S., at 50, n. 3.

3
    The majority attempts to distinguish Hustler on the ground that there
the plaintiff sought damages for injury to his state of mind whereas the
petitioner here sought damages "for a breach of a promise that caused him
to lose his job and lowered his earning capacity."  Ante, at 7.  I perceive
no meaningful distinction between a statute that penalizes published speech
in order to protect the individual's psychological well being or
reputational interest, and one that exacts the same penalty in order to
compensate the loss of employment or earning potential.  Certainly, our
decision in Hustler recognized no such distinction.

4
    The majority argues that, unlike the criminal sanctions we considered
in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), the liability
at issue here will not "punish" respondents in the strict sense of that
word.  Ante, at 6.  While this may be true, we have long held that the
imposition of civil liability based on protected expression constitutes
"punishment" of speech for First Amendment purposes.  See, e. g.,
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S.
376, 386 (1973) ("In the context of a libelous advertisement . . . this
Court has held that the First Amendment does not shield a newspaper from
punishment for libel when with actual malice it publishes a falsely
defamatory advertisement") (emphasis added), citing New York Times v.
Sullivan, 376 U. S. 254, 279-280 (1964); Gertz v. Robert Welch, Inc., 418
U. S. 323, 340 (1974) ("[P]unishment of error runs the risk of inducing a
cautious and restrictive exercise of the constitutionally guaranteed
freedoms of speech and press") (emphasis added).  Cf. New York Times, 376
U. S., at 297 (Black, J., concurring) ("To punish the exercise of this
right to discuss public affairs or to penalize it through libel judgments
is to abridge or shut off discussion of the very kind most needed")
(emphasis added).
    Though they be civil, the sanctions we review in this case are no more
justifiable as "a cost of acquiring newsworthy material," ante, at 6, than
were the libel damages at issue in New York Times, a permissible cost of
disseminating newsworthy material.