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Supreme Court Hears Arguments on Suits by Confidential Sources

March 27, 1991

WASHINGTON (AP) _ A lawyer for Minnesota’s two largest newspapers told the Supreme Court today the Constitution’s free-press guarantees shield publications from being sued when they break promises and reveal the identity of a confidential source.

Some justices voiced doubts about such sweeping protection.

And a lawyer for the source who sued accused the newspapers of trying to place themselves above the law.

The attorney for the Star Tribune of Minneapolis and the Saint Paul Pioneer Press, John French, said ″the core function″ of a newspaper is ″revealing truthful information″ and it should not be penalized for doing that job even if a source is betrayed.

″It’s part of the editorial judgment″ to determine whether a source’s identity should be disclosed, he said.

Justice Anthony M. Kennedy said French was suggesting that newspaper editors should be granted such protection, but not reporters or their sources.

″It’s an odd calculus that those closest to the source of the truth″ are left unprotected, Kennedy said.

Elliot Rothenberg, a lawyer for the source who sued the Minnesota newspapers, said ″a solemn promise was made″ to his client, and ″it was not kept.″

Noting that news organizations normally defend the need for such confidentiality, Rothenberg accused the newspapers of trying to place themselves above the law.

The case poses the question, ″should a newspaper be subject to the enforcement of agreements as anyone else who makes a voluntary agreement,″ he said.

The Minnesota newspapers are asking the justices not to reinstate a $200,000 award won by a news source whose name was disclosed.

The court is expected to announce a ruling by July.

A group of news organization supporting the Minnesota newspapers said in a friend-of-the court brief, ″Judicial enforcement of ethical obligations between reporters and their sources would violate the First Amendment in the circumstances presented here.″

Public relations man Dan Cohen initially won a $700,000 award against the Star Tribune of Minneapolis and the Saint Paul Pioneer Press.

A state appeals court ruled that a promise of confidentiality given to Cohen by reporters for the newspapers amounts to an oral contract, but it cut the award to $200,000.

The Minnesota Supreme Court threw out the judgment in 1989, ruling that promises of confidentiality may have moral weight but fall short of being legal obligations.

Also, the state court said, forcing the newspapers to pay would violate freedom of the press protected by the First Amendment to the Constitution.

The state court did not rule out the possibility that in some circumstances a state’s interest in enforcing a promise of confidentiality outweighs the First Amendment. But it said the Cohen case is not such an instance.

Cohen provided information during the 1982 Minnesota political campaign that Marlene Johnson, a Democratic-Farmer-Labor candidate for lieutenant governor, once was arrested and charged with shoplifting.

Cohen was associated with the campaign of Wheelock Whitney, the Independent-Republican candidate for governor. He told reporters for the newspapers about Ms. Johnson on condition he not be identified as the source.

The reporters assured him his name would be kept confidential. But their editors ordered Cohen’s name published because, they said, the public had the right to know the information was coming from someone linked to Whitney’s campaign.

Cohen was fired from his advertising agency job when his name appeared in the newspapers.

In his appeal to the U.S. Supreme Court, he said the news media are not above the law and should not be allowed to break contracts with impunity.

The case is Cohen vs. Cowles Media Co., 90-634.

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