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

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




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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 White delivered the opinion of the Court.
    The question before us is whether the First Amendment prohibits a
plaintiff from recovering damages, under state promissory estoppel law, for
a newspaper's breach of a promise of confidentiality given to the plaintiff
in exchange for information.  We hold that it does not.
    During the closing days of the 1982 Minnesota gubernatorial race, Dan
Cohen, an active Republican associated with Wheelock Whitney's
Independent-Republican gubernatorial campaign, approached reporters from
the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis
Star and Tribune (Star Tribune) and offered to provide documents relating
to a candidate in the upcoming election.  Cohen made clear to the reporters
that he would provide the information only if he was given a promise of
confidentiality.  Reporters from both papers promised to keep Cohen's
identity anon ymous and Cohen turned over copies of two public court rec
ords concerning Marlene Johnson, the Democratic-FarmerLabor candidate for
Lieutenant Governor.  The first record indicated that Johnson had been
charged in 1969 with three counts of unlawful assembly, and the second that
she had been convicted in 1970 of petit theft.  Both newspapers interviewed
Johnson for her explanation and one reporter tracked down the person who
had found the records for Cohen.  As it turned out, the unlawful assembly
charges arose out of Johnson's participation in a protest of an alleged
failure to hire minority workers on municipal construction projects and the
charges were eventually dismissed.  The petit theft conviction was for
leaving a store without paying for $6.00 worth of sewing materials.  The
incident apparently occurred at a time during which Johnson was emotionally
distraught, and the conviction was later vacated.
    After consultation and debate, the editorial staffs of the two
newspapers independently decided to publish Cohen's name as part of their
stories concerning Johnson.  In their stories, both papers identified Cohen
as the source of the court records, indicated his connection to the Whitney
campaign, and included denials by Whitney campaign officials of any role in
the matter.  The same day the stories appeared, Cohen was fired by his
employer.
    Cohen sued respondents, the publishers of the Pioneer Press and Star
Tribune, in Minnesota state court, alleging fraudulent misrepresentation
and breach of contract.  The trial court rejected respondents' argument
that the First Amendment barred Cohen's lawsuit.  A jury returned a verdict
in Cohen's favor, awarding him $200,000 in compensatory damages and
$500,000 in punitive damages.  The Minnesota Court of Appeals, in a split
decision, reversed the award of punitive damages after concluding that
Cohen had failed to establish a fraud claim, the only claim which would
support such an award.  445 N. W. 2d 248, 260 (Minn. App. 1989).  However,
the court upheld the finding of liability for breach of contract and the
$200,000 compensatory damage award.  Id., at 262.
    A divided Minnesota Supreme Court reversed the com pensatory damages
award.  457 N. W. 2d 199 (Minn. 1990).  After affirming the Court of
Appeals' determination that Cohen had not established a claim for
fraudulent misrepre sentation, the court considered his breach of contract
claim and concluded that "a contract cause of action is inappropriate for
these particular circumstances."  Id., at 203.  The court then went on to
address the question whether Cohen could establish a cause of action under
Minnesota law on a promissory estoppel theory.  Apparently, a promissory
estoppel theory was never tried to the jury, nor briefed nor argued by the
parties; it first arose during oral argument in the Minnesota Supreme Court
when one of the justices asked a question about equitable estoppel.  See
App. 38.
    In addressing the promissory estoppel question, the court decided that
the most problematic element in establishing such a cause of action here
was whether injustice could be avoided only by enforcing the promise of
confidentiality made to Cohen.  The court stated that "[u]nder a promissory
estoppel analysis there can be no neutrality towards the First Amendment.
In deciding whether it would be unjust not to enforce the promise, the
court must necessarily weigh the same considerations that are weighed for
whether the First Amendment has been violated.  The court must balance the
constitutional rights of a free press against the common law interest in
protecting a promise of anonymity."  457 N. W. 2d, at 205.  After a brief
discussion, the court concluded that "in this case enforcement of the
promise of confidentiality under a promissory estoppel theory would violate
defendants' First Amendment rights."  Ibid.
    We granted certiorari to consider the First Amendment implications of
this case.  498 U. S. --- (1990).
    Respondents initially contend that the Court should dismiss this case
without reaching the merits because the promissory estoppel theory was not
argued or presented in the courts below and because the Minnesota Supreme
Court's decision rests entirely on the interpretation of state law.  These
contentions do not merit extended discussion.  It is irrelevant to this
Court's jurisdiction whether a party raised below and argued a federal-law
issue that the state supreme court actually considered and decided.  Orr v.
Orr, 440 U. S. 268, 274-275 (1979); Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U. S. 749, 754, n. 2 (1985); Mills v. Maryland, 486 U.
S. 367, 371, n. 3 (1988); Franks v. Delaware, 438 U. S. 154, 161-162
(1978); Jenkins v. Georgia, 418 U. S. 153, 157 (1974).  Moreover, that the
Minnesota Supreme Court rested its holding on federal law could not be made
more clear than by its conclusion that "in this case enforcement of the
promise of confidentiality under a promissory estoppel theory would violate
defendants' First Amendment rights."  457 N. W. 2d, at 205.  It can hardly
be said that there is no First Amendment issue present in the case when
respondents have defended against this suit all along by arguing that the
First Amendment barred the enforcement of the reporters' promises to Cohen.
We proceed to consider whether that Amendment bars a promissory estoppel
cause of action against respondents.
    The initial question we face is whether a private cause of action for
promissory estoppel involves "state action" within the meaning of the
Fourteenth Amendment such that the protections of the First Amendment are
triggered.  For if it does not, then the First Amendment has no bearing on
this case.  The rationale of our decision in New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), and subsequent cases compels the conclusion
that there is state action here.  Our cases teach that the application of
state rules of law in state courts in a manner alleged to restrict First
Amendment freedoms constitutes "state action" under the Fourteenth
Amendment.  See, e. g., id., at 265; NAACP v. Claiborne Hardware Co., 458
U. S. 886, 916, n. 51 (1982); Philadelphia Newspapers, Inc. v. Hepps, 475
U. S. 767, 777 (1986).  In this case, the Minnesota Supreme Court held that
if Cohen could recover at all it would be on the theory of promissory
estoppel, a state-law doctrine which, in the absence of a contract, creates
obligations never explicitly assumed by the parties.  These legal
obligations would be enforced through the official power of the Minnesota
courts.  Under our cases, that is enough to constitute "state action" for
purposes of the Fourteenth Amendment.
    Respondents rely on the proposition that "if a newspaper lawfully
obtains truthful information about a matter of public significance then
state officials may not constitutionally punish publication of the
information, absent a need to further a state interest of the highest
order."  Smith v. Daily Mail Publishing Co., 443 U. S 97, 103 (1979).  That
proposition is unexceptionable, and it has been applied in various cases
that have found insufficient the asserted state interests in preventing
publication of truthful, lawfully obtained information.  See, e. g., The
Florida Star v. B. J. F., 491 U. S. 524 (1989); Smith v. Daily Mail, supra;
Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978).
    This case however, is not controlled by this line of cases but rather
by 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.  As the cases relied on by respondents
recognize, the truthful information sought to be published must have been
lawfully acquired.  The press may not with impunity break and enter an
office or dwelling to gather news.  Neither does the First Amendment
relieve a newspaper reporter of the obligation shared by all citizens to
respond to a grand jury subpoena and answer questions relevant to a
criminal investigation, even though the reporter might be required to
reveal a confidential source.  Branzburg v. Hayes, 408 U. S. 665 (1972).
The press, like others interested in publishing, may not publish
copyrighted material without obeying the copyright laws.  See Zacchini v.
Scripps-Howard Broadcasting Co., 433 U. S. 562, 576-579 (1977).  Similarly,
the media must obey the National Labor Relations Act, Associated Press v.
NLRB, 301 U. S. 103 (1937), and the Fair Labor Standards Act, Oklahoma
Press Publishing Co. v. Walling, 327 U. S. 186, 192-193 (1946); may not
restrain trade in violation of the antitrust laws, Associated Press v.
United States, 326 U. S. 1 (1945); Citizen Publishing Co. v. United States,
394 U. S. 131, 139 (1969); and must pay nondiscriminatory taxes.  Murdock
v. Pennsylvania, 319 U. S. 105, 112 (1943); Minneapolis Star and Tribune
Co. v. Min nesota Commissioner of Revenue, 460 U. S. 575, 581-583 (1983).
Cf. University of Pennsylvania v. EEOC, 493 U. S. 182 , 201-202 (1990).  It
is therefore beyond dispute that "[t]he publisher of a newspaper has no
special immunity from the application of general laws.  He has no special
privilege to invade the rights and liberties of others."  Associated Press
v. NLRB, supra, at 132-133.  Accordingly, enforcement of such general laws
against the press is not subject to stricter scrutiny than would be applied
to enforcement against other persons or organizations.
    There can be little doubt that the Minnesota doctrine of promissory
estoppel is a law of general applicability.  It does not target or single
out the press.  Rather, in so far as we are advised, the doctrine is
generally applicable to the daily transactions of all the citizens of
Minnesota.  The First Amendment does not forbid its application to the
press.
    Justice Blackmun suggests that applying Minnesota promissory estoppel
doctrine in this case will "punish" Respondents for publishing truthful
information that was lawfully obtained.  Post, at ---.  This is not
strictly accurate because compensatory damages are not a form of
punishment, as were the criminal sanctions at issue in Smith.  If the
contract between the parties in this case had contained a liquidated
damages provision, it would be perfectly clear that the payment to
petitioner would represent a cost of acquiring newsworthy material to be
published at a profit, rather than a punishment imposed by the State.  The
payment of compensatory damages in this case is constitutionally
indistinguishable from a generous bonus paid to a confidential news source.
In any event, as indicated above, the characterization of the payment makes
no difference for First Amendment purposes when the law being applied is a
general law and does not single out the press.  Moreover, Justice
Blackmun's reliance on cases like The Florida Star and Smith v. Daily Mail
is misplaced.  In those cases, the State itself defined the content of
publications that would trigger liability.  Here, by contrast, Minnesota
law simply requires those making promises to keep them.  The parties
themselves, as in this case, determine the scope of their legal obligations
and any restrictions which may be placed on the publication of truthful
information are self-imposed.
    Also, it is not at all clear that Respondents obtained Cohen's name
"lawfully" in this case, at least for purposes of publishing it.  Unlike
the situation in The Florida Star, where the rape victim's name was
obtained through lawful access to a police report, respondents obtained
Cohen's name only by making a promise which they did not honor.  The
dissenting opinions suggest that the press should not be subject to any
law, including copyright law for example, which in any fashion or to any
degree limits or restricts the press' right to report truthful information.
The First Amendment does not grant the press such limitless protection.
    Nor is Cohen attempting to use a promissory estoppel cause of action to
avoid the strict requirements for establishing a libel or defamation claim.
As the Minnesota Supreme Court observed here, "Cohen could not sue for
defamation because the information disclosed [his name] was true."  457 N.
W. 2d, at 202.  Cohen is not seeking damages for injury to his reputation
or his state of mind.  He sought damages in excess of $50,000 for a breach
of a promise that caused him to lose his job and lowered his earning
capacity.  Thus this is not a case like Hustler Magazine, Inc. v. Falwell,
485 U. S. 46 (1988), where we held that the constitutional libel standards
apply to a claim alleging that the publication of a parody was a state-law
tort of intentional infliction of emotional distress.
    Respondents and amici argue that permitting Cohen to maintain a cause
of action for promissory estoppel will inhibit truthful reporting because
news organizations will have legal incentives not to disclose a
confidential source's identity even when that person's identity is itself
newsworthy.  Justice Souter makes a similar argument.  But if this is the
case, it is no more than the incidental, and constitutionally in
significant, consequence of applying to the press a generally applicable
law that requires those who make certain kinds of promises to keep them.
Although we conclude that the First Amendment does not confer on the press
a constitutional right to disregard promises that would otherwise be
enforced under state law, we reject Cohen's request that in reversing the
Minnesota Supreme Court's judgment we re instate the jury verdict awarding
him $200,000 in com pensatory damages.  See Brief for Petitioner 31.  The
Minnesota Supreme Court's incorrect conclusion that the First Amendment
barred Cohen's claim may well have truncated its consideration of whether a
promissory estoppel claim had otherwise been established under Minnesota
law and whether Cohen's jury verdict could be upheld on a prom issory
estoppel basis.  Or perhaps the State Constitution may be construed to
shield the press from a promissory estoppel cause of action such as this
one.  These are matters for the Minnesota Supreme Court to address and
resolve in the first instance on remand.  Accordingly, the judgment of the
Minnesota Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

So ordered.


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