High court sends mixed signals on news sources

March 28, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The nation's press got both promising and threatening signals from the Supreme Court yesterday as it took up the issue of the legal risks news organizations may face if they break their promises not to reveal the identity of news sources.

The issue arises over stories in Minneapolis about a "dirty tricks" episode in state politics nearly nine years ago. Two Minneapolis newspapers published the name of a political campaign consultant who, promised confidentiality, had given their LTC reporters critical data about a candidate on the other side.

The newspapers' editors overrode the reporters' promises and decided that the identity of the consultant, advertising man Dan Cohen, should be a part of their articles about the campaign tactic.

During yesterday's hourlong hearing, some of the justices' questions indicated that they thought the court might have made a mistake by agreeing to hear the Minnesota test case at all.

If that view should lead the court to throw out that case, the result would be to leave intact a state court ruling saying that the press most of the time should be immune to damage lawsuits for failing to honor pledges of secrecy to its news sources. Thus, the press would get free, at least temporarily, of the risks of publishing a source's name despite a promise not to do so.

On the other hand, questions and comments by other justices indicated that the press may have trouble winning if the Supreme Court does rule on the issue of whether the First Amendment insulates the press from legal risk for publishing a secret source's identity.

Those comments indicated fairly deep skepticism that the Constitution provides a special shield for the press' broken promises to those with whom it deals. If that leads to a decision against the press' constitutional claim, the law would become a more stringent monitor of reporter-source dealings.

Justices Sandra Day O'Connor and David H. Souter, in particular, questioned whether the issue of press rights under the Constitution's First Amendment free-press guarantee was properly before the court in the Minnesota case.

Those justices' questions were aimed largely at the lawyer for Mr. Cohen, Elliot C. Rothenberg of Minneapolis, who was urging the court to deny all constitutional protection for news organizations' broken promises to sources.

Mr. Rothenberg argued that the press should be subject "to the same law as applies to everybody else" -- that is, a promise is a promise.

Chief Justice William H. Rehnquist and Justice Antonin Scalia, in particular, asked questions that sounded quite critical of the notion that the First Amendment has anything to do, one way or the other, with news organizations' dealings with their sources.

The two newspapers' lawyer, John D. French, drew some skeptical comments from Justice Anthony M. Kennedy when the lawyer suggested that a newspaper could sue one of its own reporters for disclosing something that the newspaper wanted to keep confidential, but the newspaper could not be sued by a source for doing so.

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