# Cohen v. Cowles Media Company

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## Dissenting Opinions

    Blackmun
    Souter
United States Supreme Court
501 U.S. 663
Cohen v. Cowles Media Company
No. 90-634 Argued: March 27, 1991. --- Decided: June 24, 1991
Syllabus
During the 1982 Minnesota gubernatorial race, petitioner Cohen, who was associated with one party's campaign, gave court records concerning another party's candidate for Lieutenant Governor to respondent publishers' newspapers after receiving a promise of confidentiality from their reporters. Nonetheless, the papers identified him in their stories, and he was fired from his job. He filed suit against respondents in state court, alleging, among other things, a breach of contract. The court rejected respondents' argument that the First Amendment barred the suit, and a jury awarded him, inter alia, compensatory damages. The State Court of Appeals affirmed, but the State Supreme Court reversed, holding that a contract cause of action was inappropriate. It then went on to address the question whether Cohen could recover under state law on a promissory estoppel theory even though that issue was never tried to a jury, nor briefed nor argued by the parties, concluding that enforcement under such a theory would violate respondents' First Amendment rights.
Held:
1. This Court has jurisdiction. Respondents' contention that the case should be dismissed because the promissory estoppel theory was not argued or presented in the courts below and because the State Supreme Court's decision rests entirely on a state-law interpretation is rejected. 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, 99 S.Ct. 1102, 1109, 59 L.Ed.2d 306. Moreover, the Minnesota Supreme Court made clear that its holding rested on federal law, and respondents have defended against this suit all along by arguing that the First Amendment barred the enforcement of the reporters' promises. Pp. 667-668.
2. The First Amendment does not bar a promissory estoppel cause of action against respondents. Such a cause of action, although private, involves state action within the meaning of the Fourteenth Amendment and therefore triggers the First Amendment's protections, since promissory estoppel is a state-law doctrine creating legal obligations never explicitly assumed by the parties that are enforceable through the Minnesota courts' official power. Cf., e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686. However, the doctrine is a law of general applicability that does not target or single out the press, but rather is applicable to all Minnesota citizens' daily transactions. Thus, the First Amendment does not require that its enforcement against the press be subject to stricter scrutiny than would be applied to enforcement against others, cf. Associated Press v. NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 655-656, 81 L.Ed. 953, even if the payment is characterized as compensatory damages. Nor does that Amendment grant the press protection from any law which in any fashion or to any degree limits or restricts its right to report truthful information. The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443, distinguished. Moreover, Cohen sought damages for a breach of promise that caused him to lose his job and lowered his earning capacity, and did not attempt to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, distinguished. Any resulting inhibition on truthful reporting is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law requiring them to keep certain promises. Pp. 668-672.
3. Cohen's request that his compensatory damages award be reinstated is rejected. The issues whether his verdict should be upheld on the ground that a promissory estoppel claim had been established under state law and whether the State Constitution may be construed to shield the press from an action such as this one are matters for the State Supreme Court to address and resolve in the first instance. P. 672.
457 N.W.2d 199, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and SOUTER, JJ., joined. SOUTER, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined.
Elliot C. Rothenberg, Minneapolis, Minn., for petitioner.
John D. French, Minneapolis, Minn., for respondents.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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