The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_634/90_634.d2

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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 Souter, with whom Justice Marshall, Justice Blackmun and
Justice O'Connor join, dissenting.

    I agree with Justice Blackmun that this case does not fall within the
line of authority holding the press to laws of general applicability where
commercial activities and relationships, not the content of publication,
are at issue.  See ante, at 2-3.  Even such general laws as do entail
effects on the content of speech, like the one in question, may of course
be found constitutional, but only, as Justice Harlan observed,


"when [such effects] have been justified by subordinating valid
governmental interests, a prerequisite to constitutionality which has
necessarily involved a weighing of the governmental interest involved. . .
.  Whenever, in such a context, these constitutional protections are
asserted against the exercise of valid governmental powers a reconciliation
must be effected, and that perforce requires an appropriate weighing of the
respective interests involved."  Konigsberg v. State Bar of California, 366
U. S. 36, 51 (1961).


Thus, "[t]here is nothing talismanic about neutral laws of general
applicability," Employment Division, Dept. of Human Resources of Oregon v.
Smith, 494 U. S. ---, --- (slip op., at 11), (1990) (O'Connor, J.,
concurring in judgment), for such laws may restrict First Amendment rights
just as effectively as those directed specifically at speech itself.
Because I do not believe the fact of general applicability to be
dispositive, I find it necessary to articulate, measure, and compare the
competing interests involved in any given case to determine the legitimacy
of burdening constitutional interests, and such has been the Court's recent
practice in publication cases.  See Hustler Magazine, Inc. v. Falwell, 485
U. S. 46 (1988); Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562
(1977).
    Nor can I accept the majority's position that we may dispense with
balancing because the burden on publication is in a sense  "self-imposed"
by the newspaper's voluntary promise of confidentiality.  See ante, at 7.
This suggests both the possibility of waiver, the requirements for which
have not been met here, see, e. g., Curtis Publishing Co. v. Butts, 388 U.
S. 130, 145 (1967), as well as a conception of First Amendment rights as
those of the speaker alone, with a value that may be measured without
reference to the importance of the information to public discourse.  But
freedom of the press is ultimately founded on the value of enhancing such
discourse for the sake of a citizenry better informed and thus more
prudently self-governed.  "[T]he First Amendment goes beyond protection of
the press and the self-expression of individuals to prohibit government
from limiting the stock of information from which members of the public may
draw."  First National Bank of Boston v. Bellotti, 435 U. S. 765, 783
(1978).  In this context, " `[i]t is the right of the [public], not the
right of the [media], which is paramount,' "  CBS, Inc. v. FCC, 453 U. S.
367, 395 (1981) (emphasis omitted) (quoting Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367, 390 (1969)), for "[w]ithout the information provided by
the press most of us and many of our representatives would be unable to
vote intelligently or to register opinions on the administration of
government generally."  Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492
(1975); cf. Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 573
(1980); New York Times Co. v. Sullivan, 376 U. S. 254, 278-279 (1964).
    The importance of this public interest is integral to the balance that
should be struck in this case.  There can be no doubt that the fact of
Cohen's identity expanded the universe of information relevant to the
choice faced by Minnesota voters in that State's 1982 gubernatorial
election, the publication of which was thus of the sort quintessentially
subject to strict First Amendment protection.  See, e. g., Eu v. San
Francisco County Democratic Central Committee, 489 U. S. 214, 223 (1989).
The propriety of his leak to respondents could be taken to reflect on his
character, which in turn could be taken to reflect on the character of the
candidate who had retained him as an adviser.  An election could turn on
just such a factor; if it should, I am ready to assume that it would be to
the greater public good, at least over the long run.
    This is not to say that the breach of such a promise of confidentiality
could never give rise to liability.  One can conceive of situations in
which the injured party is a private individual, whose identity is of less
public concern than that of the petitioner; liability there might not be
constitutionally prohibited.  Nor do I mean to imply that the circumstances
of acquisition are irrelevant to the balance, see, e. g., Florida Star v.
B. J. F., 491 U. S. 524, 534-535, and n. 8 (1989), although they may go
only to what balances against, and not to diminish, the First Amendment
value of any particular piece of information.
    Because I believe the State's interest in enforcing a newspaper's
promise of confidentiality insufficient to outweigh the interest in
unfettered publication of the information revealed in this case, I
respectfully dissent.
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