Supreme Court agrees to review newspapers' case on confidential sources

December 11, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court, stepping into a celebrated controversy over the ethics of the press, agreed yesterday to spell out when -- or whether -- news organizations may be sued for breaking promises to their news sources.

The case, from Minneapolis, involves a vow of confidentiality given by two newspaper reporters to a political source and then a decision by their editors to override that promise and publish the source's name as part of an article. The source sued the two newspapers over the broken vow and won $200,000 in damages.

Minnesota's Supreme Court overturned that verdict, saying that it was barred by the First Amendment. Lawyers who specialize in representing the press expressed alarm at the justices' agreement to review the Minneapolis case. One of the lawyers, James Goodale of New York, said the court might use the case as a platform for generally restricting the right of the press to rely on the First Amendment to protect all of its relationships with confidential news sources. Under codes of ethics adopted by various news organizations, it is a firm professional obligation for reporters and editors to keep a promise not to reveal the identity of a source. The issue before the court is whether such an ethical duty can be turned into a binding legal duty and, if such a duty is violated, whether the Constitution's First Amendment shields the press from having to pay damages for the broken promise.

The Minnesota Supreme Court said it was not ruling that the First Amendment prevents all such lawsuits but that it at least bars a damage lawsuit when the broken promise of secrecy was made to the source of a political story about a political campaign. Most often, a promise of confidentiality to a news source gets the press into legal trouble when a prosecutor or some other lawyer demands to know the source's identity in order to pursue evidence in a criminal or civil case. Reporters have gone to jail rather than obey orders to reveal their sources or to tell all of what their sources had said to them. Some lower courts have said the First Amendment sometimes protects the press from forced disclosure of source identity.

But in the Minneapolis case, the tables were turned when two newspapers chose, for news reasons, to reveal the identity of one of their sources despite a commitment to hide that identity.

The source was Dan Cohen, a Minneapolis public relations man who was working to promote one candidate for lieutenant governor. In return for promises to keep his name out of the article, Mr. Cohen gave reporters for the Minneapolis Star Tribune and the St. Paul Pioneer Press Dispatch court documents showing that the opposing candidate had twice been in trouble with the law -- once for shoplifting $6 worth of sewing materials.

When the reporters got back to their newsroom, a hot debate erupted, and editors ultimately decided that since the incident involved a political "dirty trick" shortly before the election, Mr. Cohen should be named in the article.

Going to court on a theory that he had a contract of confidentiality that that had been breached, Mr. Cohen won $200,000 in damages.

In overturning the verdict, Minnesota's highest court said the promise of confidentiality was not a formal, binding contract. But, it said, even assuming the reporters' vow to Mr. Cohen was an implied "promissory" agreement, it would violate the First Amendment's free press clause to enforce that agreement in the context of political news coverage.

A final ruling in the case of Cohen vs. Cowles Media (No. 90-634) is expected in the spring.

*

The Supreme Court also agreed to rule on the constitutionality of punishing drug dealers more heavily for selling a drug when the drug itself weighs little but the innocent material that carries the drug weighs enough to push the total over the minimum for stricter sentences.

The case is Chapman vs. U.S. (No. 90-5744).

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