William H. Rehnquist: We'll hear argument now in No. 90-634, Dan Cohen v. the Cowles Media Company, doing business as Minneapolis Star and Tribune Company. Mr. Rothenberg.
Elliot C. Rothenberg: Mr. Chief Justice, and may it please the Court: This case is on writ of certiorari from the Minnesota Supreme Court which held that promises of confidentiality from newspapers to a source of information were unenforceable because it would violate the First Amendment rights of the newspapers. Cohen v. Cowles Media presents the question of whether newspapers have the right to inflict injuries by dishonoring voluntary promises used to obtain information. Honoring promises of confidentiality is critical in ensuring the free flow of information to the public. An expert witness in the trial to this case testified that at least one-third of all newspaper stories and 85 percent of news magazine stories come from sources promised confidentiality by the media organizations involved.
William H. Rehnquist: Well, why should the desirability of keeping the promise of confidentiality on the part of a media organization be subject to our decision here?
Elliot C. Rothenberg: Because, Your Honor... because, Mr. Chief Justice, the Minnesota Supreme Court ruled that the First Amendment barred enforceability of these promises.
William H. Rehnquist: Yes, and if... if the Minnesota Supreme Court was wrong on that point, we would say, or if we thought so, we would say that the First Amendment did not bar the enforcement of those promises. But I doubt that we would express any views on the merits as whether it's desireable as to public policy to enforce them or not.
Elliot C. Rothenberg: Mr. Chief Justice, I was really raising this issue to point out the First Amendment values that are involved that to ensure the free flow of information to the public, news media consider it necessary to make these promises and it's also necessary to keep these promises to avoid drying up the flow of information from sources.
Antonin Scalia: The First Amendment requires that these contractual obligations be enforceable.
Elliot C. Rothenberg: Yes--
Antonin Scalia: You're taking the polar view from the view that the Minnesota Supreme Court took.
Elliot C. Rothenberg: --Yes, Justice Scalia--
Antonin Scalia: I--
Elliot C. Rothenberg: --there is no conflict in this case.
Antonin Scalia: --Isn't it conceivable that the First Amendment neither requires nor prohibits? Is that a possible resolution?
Elliot C. Rothenberg: That is a possible resolution, Your Honor. Justice Scalia, it's been the position of the trial court and the Minnesota court of appeals and also of course the petitioner in this case that the First Amendment simply ought not to allow the news media organizations who are parties to this case to break promises they voluntarily made in order to obtain information, that the media organization should be subject to the same law as everyone else--
Antonin Scalia: But--
Elliot C. Rothenberg: --every other business, every other individual in keeping their promises.
William H. Rehnquist: --Well, then what you're saying is that the First Amendment doesn't accord them any special protection when they break their promises.
Elliot C. Rothenberg: Yes, Mr. Chief Justice.
Anthony M. Kennedy: Well, what would be the result if a State passed a statute which said, as a matter of the public policy of this State, no contract in... for confidential source material shall be enforceable? What result?
Elliot C. Rothenberg: Your Honor, Justice Kennedy, it would be our position that that would violate the constitutional provision regarding the impairment of contracts. If--
Anthony M. Kennedy: No, no, it wouldn't, because it's future.
Elliot C. Rothenberg: --Future. Well, we don't know of any... it would... it would be bad public policy... it would be our position that this... this type of statute ought not to be--
Anthony M. Kennedy: Well, I... it--
Elliot C. Rothenberg: --adopted. It would be the equal protection... possibly an equal protection argument. Possibly--
Anthony M. Kennedy: --Would there be a First Amendment problem?
Elliot C. Rothenberg: --It would certainly violate values of the First Amendment that would be involved in the--
Anthony M. Kennedy: Well, if it violates values of the First Amendment, does it violate the First Amendment? I'm just following on your answers to Justice Scalia where he said, well, you're taking the position that the First Amendment requires it.
Elliot C. Rothenberg: --Justice Kennedy, it's... that... he was bringing it out to point out there was no necessary conflict between the First Amendment and rules of contract law as applied to this case. The Minnesota Supreme Court seemed to believe that the First Amendment required that these promises not be enforceable. It's our position that the First Amendment does not require this. And not only that but that there are certain values of the First Amendment which are enhanced by promoting these promises... by honoring these promises rather than allowing newspapers to violate these promises [inaudible].
Sandra Day O'Connor: Mr. Rothenberg, the... I have a little difficulty with the opinion that we're asked to review. As I read it, the court first rejected a contract theory as a matter of State law.
Elliot C. Rothenberg: Yes, Justice O'Connor.
Sandra Day O'Connor: And then it went on to address whether there was promissory estoppel. That theory was not presented, I take it, to the jury by the plaintiff below?
Elliot C. Rothenberg: Yes, Your Honor.
Sandra Day O'Connor: Is that correct?
Elliot C. Rothenberg: Yes, Your Honor.
Sandra Day O'Connor: Did you argue promissory estoppel? Why did the court even address it?
Elliot C. Rothenberg: In Minnesota, Your Honor, promissory estoppel is closely related to the law of contracts. It implies a contract where a contact might not otherwise exist. That was pointed out in the opinion below. And the Minnesota Supreme Court discussed this issue... pointed out that promises of confidentiality from newspapers to sources of information could constitute an implied contract under rules of promissory estoppel. But then went on to say that such a promise would be unenforceable in this case because it would violate the First Amendment rights of the newspapers.
Sandra Day O'Connor: The problem I have is that I didn't understand how the court could address it at all if it was never urged below.
Elliot C. Rothenberg: It isn't necessary, Justice O'Connor, in Minnesota, to specifically plead promissory estoppel apart from general contract law. Minnesota is a notice pleading State. And in this case before the court and in another case which was cited in the opinion below, the Christianson v. Minneapolis Municipal Employees, in both of these cases the parties did not specifically plead or argue promissory estoppel or implied contract as distinct from conventional contract--
Sandra Day O'Connor: And as a matter of State law, it's possible to sustain a jury verdict that was presented on a different theory--
Elliot C. Rothenberg: --Yes.
Sandra Day O'Connor: --by concluding there was promissory estoppel? That's the Minnesota State law?
Elliot C. Rothenberg: Uh-huh. This... Your Honor, there is no... there is not this fine or close distinction between implied contracts on a promissory estoppel or conventional contracts. It's based upon section 90 of the restatement of contracts. And in both this case and the Christianson case where in fact the lower court held against the plaintiff, and then the Minnesota Supreme Court reversed the decision on the basis of an implied contract through promissory estoppel when the issue had not been raised below. So, in Minnesota State practice, it is possible to do this without specifically pleading promissory estoppel as apart from conventional contract.
Sandra Day O'Connor: Now, one other question before I finish if I may. Here, you... the plaintiff sought damages for the disclosure. Had the plaintiff known in advance that there was a danger of disclosure, I take it you would feel you could even go in and enjoin the publication? Is that right?
Elliot C. Rothenberg: Well, Your Honor, Justice O'Connor, plaintiff did not ask that this publication be enjoined. Plaintiff asked for damages for the violation of the promise made by the newspapers.
Sandra Day O'Connor: Yes, I know. Is it your position that an injunction could be sought before publication?
Elliot C. Rothenberg: Plaintiff has not sought an injunction. Plaintiff has not--
Sandra Day O'Connor: Yes, I know that. Is it your view that an injunction could be sought?
Elliot C. Rothenberg: --Could it be sought? That presents the issue of prior restraint, Your Honor, and it would present a different issue than damages. No, because this case does not involve any attempt for prior restraint nor would I think any principle established by the Minnesota Court of Appeals or the trial court involve any issue of prior restraint on publication by newspapers. It merely involves the issue of whether newspaper should be liable for their promises and whether they should be liable for damages caused by violations of their promises, which in this case caused--
Antonin Scalia: You think maybe only the Government can get prior restraint of publication? Is that... is that it? The Snepp case is all right, but nobody else can get prior restraint except the Government?
Elliot C. Rothenberg: --It's... it's--
Antonin Scalia: That may be the law.
Elliot C. Rothenberg: --Not necessarily, Justice Scalia. It's our position that the Court doesn't have to even reach the issue of prior restraint. It merely has to allow a plaintiff to recover damages for a violation--
Antonin Scalia: You seem very much worried about it. Mr. Rothenberg, doesn't the State court decision rest on the State supreme court's view of good policy. It... it points out that the... that the question arises in what it calls a classic First Amendment context. It closes the discussion in that paragraph by saying, "Considering the nature of the political story involved, it seems to us the law best leaves the parties here to their trust in each other. " Then it goes on to talk about First Amendment demands. But doesn't the... doesn't the Court rest its decision on its own view of where the law best leaves the parties. And isn't that the holding of the case?
Elliot C. Rothenberg: --Your Honor, the holding of the case from the Minnesota Supreme Court we would submit was purely based upon the First Amendment where it says towards the end of the decision, "we conclude that the enforcement of respondent's promises in this case would violate that First Amendment rights-- "
David H. Souter: Well, isn't the most that you can say is that that was an alternative holding, and in fact the second of the two pieces of reasoning expressed? Doesn't it rest and wouldn't it rest with equal decisiveness on the language that I just quoted, "seems to us the law best leaves the parties to their trust in each other? "
Elliot C. Rothenberg: --Except, Justice Souter, that was not the arrangement that the parties had made. In fact, the Minnesota Supreme Court pointed out itself that there was offer. There was acceptance. There was consideration.
David H. Souter: No, I realize that. But the court is saying offer consideration contract theory is not the basis upon which the parties ought to be left to deal. They ought to be left to deal on matters of trust and if that doesn't work, too bad. Isn't that the... isn't that an... an independent holding of the case, if not the principal holding of the case?
Elliot C. Rothenberg: No, Your Honor, Justice Souter, any fair reading of the decision would lead one to conclude that this decision was in fact based on the First Amendment in terms of the promissory estoppel where the court says we conclude that violation of these promises would violate--
David H. Souter: Well--
Elliot C. Rothenberg: --would... the enforcement of the promises would violate the First Amendment rights of the newspapers--
David H. Souter: --Let me just ask you one question. I don't want to prolong this, but do you agree that if the court had not gone onto the further language, "we conclude that the"... that the First... "that there would be violation of First Amendment rights in enforcing the contract. " do you agree that if the court had not gone on to that further statement that the holding in the case and the result in the case rather, I should say... the result in the case would be exactly the same as it is now? Because the result in the case would rest, as I understand it, on the court's conclusion that the law best leaves the parties to their trust in each other. So that the... wouldn't the result be exactly the same if it had not gone on to make the First Amendment point?
Elliot C. Rothenberg: --Justice Souter, we would submit that that would not be the case, because the court, the Minnesota Supreme Court, did find it necessary to examine the First Amendment issues and to make that specific holding--
David H. Souter: Well, they did to go on to demand them, but if the court had stopped right there and said, it seems to us the law best leaves the parties here to their trust in each other, what would the result in the case have been? They wouldn't have gone on and said, however, we think we'll enforce the contract. That would have been the end of it right there, wouldn't it?
Elliot C. Rothenberg: --Well, Your Honor, the context in which that statement was made wasn't the context of the First Amendment discussion. That was about a sentence or two after they pointed out that this case presents the classic First Amendment situation of a source providing information in connection with a political campaign which they called the quintessential First Amendment situation. And then they said that we think that in this situation, the law best leaves the parties to the trust in each other.
Antonin Scalia: Mr. Rothenberg, I thought when they said the law best leaves the parties to the trust in each other, they included within the law the First Amendment. Isn't the First Amendment part of the law?
Elliot C. Rothenberg: Absolutely, Justice Scalia.
Antonin Scalia: Oh. May I ask you a variation of Justice Souter's question? Supposing you had two statutes, one in one State and one in another. One State had a statute that just said, contracts of this kind or promises of this kind shall not be enforceable, period. And the other State the statute said the same thing, but it had a preamble that said, because the members of the legislature are convinced that it would violate the First Amendment Xto have such a statute, contracts like this are unenforceable. Would... each of those be... would they both be... have the same constitutional result? Would they both be valid or invalid, or would you get one result in one case and another in the other case?
Elliot C. Rothenberg: If the one statute was ostensibly based upon the First Amendment, Your Honor--
John Paul Stevens: It said that because the members of the legislature are all convinced that it would violate the First Amendment, we therefore enact this statute.
Elliot C. Rothenberg: --That would present... that would provide jurisdiction for this Court, Justice Stevens, to consider whether the First Amendment actually requires that the--
John Paul Stevens: Did we review the reasoning that the legislators adopt, do we? Or do we review the end product of their work?
Elliot C. Rothenberg: --I would submit both, Your Honor. That in fact, as is pointing out the beginning, if there are values of the First Amendment involved in this case, these values require that these promises be honored to ensure the free flow of information to the public. That's what the Minnesota State legislature did in this case. In fact, getting back to the issue of the statute, it would be one thing if you had a statute saying that these promises are unenforceable. Giving notice to all potential sources that they could not trust promises from newspapers, it would dry up these sources. I would assume that the newspapers themselves would not support such a statute. In this type of situation, a solemn promise was made to the source, Mr. Cohen, as is made to many other sources on a daily basis. He believed that he could trust the promise of the reporter, that the newspaper would honor their promises. They did not do so. He had no notice whatsoever. Had he had that notice, he wouldn't have... he wouldn't have offered the information to the newspapers, he wouldn't have trusted the promises, and this case wouldn't have arisen. He wouldn't have lost his job as a result.
John Paul Stevens: Well, I know, but of course in the future the law will be clearer if this is affirmed. The future is... will be as though a statute like this was on the books.
Elliot C. Rothenberg: Yes, yes, yes, Your Honor. But I think it's important to point out that in other cases involving court orders of reporters to divulge confidential sources before grand juries, newspapers and other media organizations have taken the position--
John Paul Stevens: Yes, we haven't always agreed with them, though.
Elliot C. Rothenberg: --Right. But the positions they took in those cases, Justice Stevens, was that if newspapers are forced to expose their sources that sources will dry up, that the public will be deprived of important information it now gets from confidential sources, and that will disserve the interest of the First Amendment. That's exactly the position they took in the Branzburg case about 20 years ago.
John Paul Stevens: You seem to be posing the issue as whether we... which result we think will maximize the flow of information. We should pick one result or the other on the basis of our judgment as to which one will increase the flow of information. Is that your argument?
Elliot C. Rothenberg: Well, Justice Stevens, I was pointing out that the positions of the media have been inconsistent on this issue.
John Paul Stevens: Well, I understand that. Very few litigants come here who haven't taken other positions from time to time.
Elliot C. Rothenberg: But it's been our position, Justice Stevens, if I could perhaps answer the question that, as in the Minnesota Court of Appeals... the First Amendment really ought not to be applicable to this case. You have a private... you have an agreement between private parties, a newspaper and a source of information, that the First Amendment... there was no governmental compulsion involved in this case. That the case ought to be decided on the common law, on issues of contract State law, and that the First Amendment ought not to be a... ought not to be interpreted to give newspapers or other media organizations a right to violate their voluntary promises with another private person.
John Paul Stevens: Well, but the maximum your... result you can achieve here is not just that we remand it to the court of... the Minnesota Supreme Court and say, you're really not required to reach this result by the First Amendment. But you can reach the same result because you believe in the policy of the First Amendment. That would all right, wouldn't it?
Elliot C. Rothenberg: No, Justice Stevens, because the problem that we have if... if you open the door for State courts to say that, although we're not going to judge a case on the amendment or the constitutional provision itself, we're just going to consider the policy of the amendment or the Constitution, that's going to give State courts the opportunity to in effect reach final judgments on constitutional issues without allowing litigants the opportunity to appeal to this Court.
William H. Rehnquist: Well, certainly the Supreme Court of Minnesota, if we were to reverse its judgment here, and say that it was wrong. It had passed on a First Amendment question and it had reached the wrong result. When it went back, it could say that the supreme court... that the Minnesota constitution required the same result, could it not?
Elliot C. Rothenberg: Your Honor, that issue was raised in the oral argument before the Minnesota Supreme Court and also in briefs by the respondents, particular respondent Cowles Media Company. The Minnesota Supreme Court never accepted that argument at that time. They never dealt with it. And--
William H. Rehnquist: Well, maybe they were saving it for a situation like the one... my hypothetical. [Laughter]
Elliot C. Rothenberg: --But it's... Your Honor, again we take the position that... and I think it's clear from the decision itself, which is of course all we have to act upon, is that the Supreme Court of Minnesota did not refer to any State constitutional provisions. It based its decision saying that we conclude that enforcing these promises would violate the newspapers' rights under the First Amendment of the U.S. Constitution and refer to several U.... United States Supreme Court cases in that regard. Can do... to continue, many arguments were made in the briefs on the applicability of the First Amendment. The issue generally is... comes down to whether a private agreement, an agreement between private individuals, a newspaper on the one hand and a source of information on the other, ought to implicate the First Amendment at all and whether the Minnesota Supreme Court acted in error, as we submit it did, in holding that the First Amendment makes these promises unenforceable, because we have here, again, a private agreement... no State compulsion, no governmental compulsion... on the... forcing the newspapers to make this agreement with a private person. But as a... an ordinary business practice of the newspapers, a practice that is indulged in frequently by all--
William H. Rehnquist: You have government compulsion just as you have in a liable case, don't you? I mean you... you... there's no government compulsion that a paper print a story about someone that may libel them. But if a court organized by the Government gives a judgment for damages, that's sought... thought sufficient to invoke the First Amendment to... for... invoke the New York Times against Sullivan doctrine. And here, too, if the Court gives a judgment for damages, that is sufficient government activity I would think to raise the First Amendment question if the First Amendment properly applies.
Elliot C. Rothenberg: --Mr. Chief Justice, we would submit that there is a difference between the New York Times v. Sullivan type of situation and this type of case. New York Times v. Sullivan protected a newspaper from inadvertently publishing defamation about someone else. It did not involved a situation where a newspaper made an agreement with a private person to obtain information. It obtained this information and then the newspaper decided that it was going to violate the agreement.
William H. Rehnquist: Well, there are many differences I agree. But I don't think there's a difference in the extent of government involvement in the two.
Elliot C. Rothenberg: Except, Mr. Chief Justice, that again involves the voluntary agreement. But we submit there are many other ways of looking at the issue as well. For example, the issue of waiver. When a newspaper makes a promise of confidentiality to a news source or makes a voluntary promise of any sort, does it then have the right to say that we're going to violate that promise because we have a First Amendment right to do that so? We submit that once that promise is voluntarily made, the newspaper has in effect waived the right to make any First Amendment claim of a right to violate the promise. Otherwise, promises of newspapers or media organizations would be virtually worthless, not only to news source confidentiality but at any individuals or businesses that newspapers deal with. You had a similar type of situation in the Snepp case Justice Scalia mentioned where a person promised not to publish any information regarding his employment at the CIA without first getting the approval. He broke the promise. He claimed a First amendment right to do so. The court ruled that he couldn't do it... in fact, establish a constructive trust on all the profits from the publication in that case. Again... so in the other issues relating to this is whether newspapers should have the right to violate agreements, should be subject to the same law as applied to everyone else, every other individual or every other business who makes an agreement with another party. Should newspapers and media organizations who enter into such agreements willingly in exchange for other types... types of information they consider valuable... shouldn't they be subject to the same law as applies to everyone else who makes voluntary agreements without having a special... without being given a special First Amendment right to violate those agreements? Finally, in... in Branzburg v. Hayes, the journalist argue there that honoring promises of confidentiality were so important to First Amendment values as to require constitutional protection. The court rejected that request at that point and ruled that these... the First Amendment was simply inapplicable to these types of agreements. This Court should not now accede to respond its demand to create a special First Amendment right to dishonor their agreements. Mr. Chief Justice, I would like to reserve any time for... remaining time for rebuttal unless there are further questions from the Court.
William H. Rehnquist: Very well, Mr. Rothenberg. Mr. French, we'll hear now from you.
John D. French: Mr. Chief Justice, and may it please the Court: The issue before this Court on the merits... if the Court reaches the merits... is whether a reporter's oral promise to a source is sufficient reason to punish the publication of truthful information on a matter of public significance where the promise does not satisfy the standards for waiver of a constitutional right, and as a matter of State law does not even amount to a legally binding contract. Two facts in the case are clear beyond dispute.
Byron R. White: Well, would you be making the same argument that you're going to make if the contract was in writing and there was consideration on both sides?
John D. French: Yes, I would, Your Honor.
Byron R. White: All right.
John D. French: I would be making the same argument, but this is an easier case, I think.
Byron R. White: Right.
John D. French: The two facts that I believe are beyond dispute is that the publications at issue are entirely true, and that they involved matters of public significance. As the Minnesota Supreme Court observed, this was the quintessential public debate in our democratic society. The four news organizations which received the information from Mr. Cohen--
Anthony M. Kennedy: Well, are you... again, are you suggesting that the result would be any different if it weren't... just a low-level news story which may or may not be in the public interest... no public officials involved? It's the same principle, isn't it?
John D. French: --It's the same principle, but the decisions of this Court say, Your Honor, that it is clear that there should be protection accorded to the publication of truthful information about matters of public significance. The point I'm making here is plainly it was truthful information. And the Minnesota Supreme Court said part of the quintessential debate in our society, therefore, obviously a matter of public significance.
John Paul Stevens: May I ask what is public significance? About the candidate or about the person who gave the information?
John D. French: The election campaign in toto, Your Honor.
John Paul Stevens: So that you could have published the information that she'd been arrested or whatever it was and that would have satisfied that requirement without identifying the source, couldn't you?
John D. French: The information about Mr. Cohen was information that was a part of a story about matters of public significance. It is possible for news organizations to print the name of Mr. Cohen in a situation like this or to leave it out. As the Court knows from the briefs, our two clients here today printed his name. The Associated Press did not print his name. WCCO Television didn't carry the story at all. That's the point, Your Honor. This is not only the area of quintessential debate--
John Paul Stevens: Apparently, that indicates that reasonable news editors could differ as to the public significance of the information.
John D. French: --Absolutely right. And those are the people--
John Paul Stevens: And we should say... we should choose between the two views on that.
John D. French: --You should choose to allow reasonable editors to differ, Your Honor. That is our point. This is subject for editorial judgment... I--
John Paul Stevens: No, but you're saying that you sort have got a heightened scrutiny, because it is a matter of public significance, not that whenever editors may differ as to whether it's a matter of public significance, then you get the heightened scrutiny or is that your point?
John D. French: --No, my point, Your Honor, is that if there is any basis for a challenge such as that leveled at these two newspapers by Mr. Cohen, that basis pales to insignificance when the subject is truthful information about a matter of public significance.
John Paul Stevens: Such as there was involved in the Snepp case.
John D. French: Such as there was involved in the Snepp case, but in the Snepp case what the Court had before it was, number one, protecting national security, and number two, as the Court said, a fiduciary relationship of the highest order. Also, in Snepp, the Court did not hold that the information could not be published. It simply held that the prepublication review agreement was valid.
John Paul Stevens: He had to pay the consequences for what he did. But you... this is not a prepublication case. You could go ahead and publish and pay damages and publish anything you wanted to.
John D. French: It's not a prepublication case, Your Honor, but I think the case reveals why it comes so close to being prepublication. These newspapers have had to live now for 9 years with a lawsuit which at the trial stage appeared to be going to cost them $700,000 in compensatory and punitive damages. And of course, has over the course of 9 years cost them countless thousands in attorneys' fees. That kind of sanction can be just as chilling on free speech as the sanction imposed by prepublication injunction.
John Paul Stevens: It's still something that he could weigh in the balance when they decide whether or not to breach their agreement.
John D. French: It's still something they can weigh in the balance, but it's something in my judgment they should not have to weigh in the balance.
William H. Rehnquist: Mr. French, any number of large concerns which have the potential for doing damage to people, whether they're trucking companies or products... making asbestos and newspaper companies have the potential for doing damage by... have to live with a certain threat of litigation. That's part of doing business in our economy, isn't it?
John D. French: That's absolutely right, Mr. Chief Justice And these newspapers live with it. They live with it under the antitrust laws. They live with it under the labor laws. They live with it under the laws of taxation. Here we are talking about the core business protected by the First Amendment, the business of publishing the truth. And in that area, they should not have to live under this. Justice Frankfurter has a nice phrase in his concurring opinion in Associated Press where he talks about the business of the press being truth and understanding, not the sale of wares like peanuts and potatoes. This is a case in which Mr. Cohen and his counsel are arguing that it is appropriate by agreement to suppress the publication of truthful information about a matter of public significance. They are not suing because they sold a product or a service to these newspapers and didn't get paid. They are suing because a piece of truthful information came to light in the course of a heated political campaign.
Anthony M. Kennedy: Well, in that light was it wrong for the newspaper reporter to guarantee confidentiality?
John D. French: It was not wrong at the level of the newspaper reporter, Your Honor.
Anthony M. Kennedy: Suppose the newspaper reporter had known that her editor would countermand her promise, and made... but the newspaper reporter made the promise anyway?
John D. French: You'd have a different case, because I think you'd get closer to fraud and there would be more to weigh in the balance on Mr. Cohen's side. There's nothing in the balance on his side right now. I do not suggest that I think Mr. Cohen ought to win that case. What I... what I... my main theme that I want to assure the Court that I am advancing throughout my argument is this. You heard Mr.--
Anthony M. Kennedy: Well, then it's the degree of wrong, the egregiousness of the press misrepresentations that controls the case?
John D. French: --No, they do not control the case. The controlling issue--
Anthony M. Kennedy: How would... how should the case come out, the case that I put to you?
John D. French: --The case that you put to you... that you put to me, should in my judgment still be a case in which the First Amendment is relevant. Let me say that first, before I get to the direct answer to your question. Mr. Rothenberg argued here today before this Court, as he argued in his briefs, that the First Amendment is irrelevant. It has no weight. It doesn't count. All this Court has to do in order to affirm the Minnesota Supreme Court is to decide that's wrong. And plainly that has to be wrong. I mean, if this Court's decisions protect under the First Amendment the utterance of defamatory speech, surely this Court must find some room under the First Amendment to protect the utterance of honest, accurate speech.
Thurgood Marshall: Mr. French, on that word "honest", did you publish that you promised not to publish that?
John D. French: The two reporters gave Mr. Cohen a promise that they wouldn't--
Thurgood Marshall: Did you publish that the deal was made not to release it?
John D. French: --They did not, Your Honor.
Thurgood Marshall: Well, now you're talking about truth. You didn't publish the truth.
John D. French: The entire truth about everything did not get published.
Thurgood Marshall: You did not publish.
John D. French: But what this Court has said--
Thurgood Marshall: You didn't publish all the truth.
John D. French: --That's absolutely right, Your Honor. What the Court has said, however, on that score is that that is a subject to be left to editorial judgment. This Court has said that editorial judgment is a part of the free press publication process that is entitled to constitutional protection.
William H. Rehnquist: So what you're asking us to vindicate is publication of the truth as truth is determined by the editors.
John D. French: What I am asking the Court to do is to conclude that the editors are the repository of First Amendment bestowed rights to make judgments about what to publish and not to publish. There's... there was so much to publish in this case, Your Honor. They could have published, but the contact was made with the candidate, Marlene Johnson, and she announced it was smear campaign. They could have published, but they then contacted the Whitney campaign, and the Whitney campaign said, we had nothing to do with it. And on and on and on. But what this Court has said is that whether the decision is fair or unfair, the decision belongs to the editors, not to judges.
Antonin Scalia: You're saying more than that. You're saying contract obligations can't stand in way. What if a reporter for a... for a newspaper in violation of his contractual obligations to his employer is for money leaking scoops to a competing newspaper. Don't you think that the... that the newspaper that hires him should be able to sue him for that... for that breach of his agreement?
John D. French: Yes, yes, I do, Your Honor.
Antonin Scalia: Even though he's turning over the most newsworthy material in the world.
John D. French: I do believe it should be able to sue, and it can sue under precedence of this Court. First, what that reporter is doing is turning over proprietary information. And this Court has said that people who create proprietary information have a right to reap the regard of having created it. Second is--
Antonin Scalia: Well, wait, wait, wait... excuse me. Why is that proprietary information? I mean it is confidential information that the paper received. Right?
John D. French: --Yes, that's correct.
Antonin Scalia: Well, why is that any different from the confidential information that was transmitted to the reporter here?
John D. French: The reporter obtained that information in the course of performing services for the newspaper. The right to his services belongs to the newspaper. Moreover, there is a... there is a fiduciary relationship between the reporter and his newspaper, which is another area which that this Court said deserves... has said deserves protection.
Antonin Scalia: All important contract rights.
John D. French: Important contract rights which do not suppress publication of the truth. The difference here is that... is simply the difference in whose newspaper will the truth be published? What Mr. Cohen--
Anthony M. Kennedy: It's a very odd calculus that the person closest to the truth... in this case the source... cannot protect his ability to divulge or not to divulge but that as you get further away from the sources of truth, i.e., in the newspaper room, you say, oh, then the newspaper has a right to protect its information by a contract suit. I... it seems to me the calculus should be just the other way around.
John D. French: --I think not, Your Honor. The... the press in our country stands in the role of the surrogate for the public. The public has no way of knowing many things that it ought to know. The press goes and ferrets out the information and publishes it. In the course of that process, reporters find facts, evaluate them, and write stories. Editors decide what to print and what not to print. And in the end, what we're... what we're trying to do is to protect the public's right to know. And that's what this case is about. Mr. Cohen wants, by contract, to restrict the ability of editors to do their job and decide what is important to convey to the public as part of its right to know.
Sandra Day O'Connor: Mr. French-- --But Mr. French... excuse me. Go ahead. It seems to me that your argument would lead the Court to reach a different result in Branzburg v. Hayes as well, where the Court held that reporters are not exempt from a generally applicable duty to appear and respond to questions before a grand jury even though they might be asked to reveal confidential information. You would say that decision rests with the editors, and apparently that case would have to come out the other way.
John D. French: No, I would not say that, Your Honor. That would not be my conclusion. What I am trying to say here is that when a private citizen attempts to assert a right under contract law... which by the way, the Minnesota Supreme Court said doesn't exist... to suppress publication of a piece of information. And that information is truthful and has to do with a matter of high, public significance, then under all the decisions of this Court decided under every other rubric defamate... pardon me... right of privacy, protection of emotional distress, and so forth, the press prevails in that situation.
Byron R. White: Because of the First Amendment.
John D. French: Because of the First Amendment.
Byron R. White: And so you think this... we really do have a First Amendment question before us?
John D. French: I think the Court--
Byron R. White: And that the... when we... and that the we certainly have jurisdiction to decide it, is that it?
John D. French: --I think the Court could have, Justice White, had the First Amendment before it if that's what the Minnesota Supreme Court had decided.
Byron R. White: Well, I know, but that's only been argued now is that... is that the... is that the paper has a First Amendment right not to live up to this contract. I don't... I don't know why you're arguing it if the issue isn't here.
John D. French: I believe the issue is not here, but Mr. Rothenberg says the issue is here, and I think I'm obliged to respond to Mr. Rothenberg. I think--
Byron R. White: Why don't you... why don't you tell us why we don't have to decide it?
John D. French: --I would be delighted to.
Byron R. White: Tell us why we don't have jurisdiction to decide it.
John D. French: I would be delighted to do that, Your Honor.
Byron R. White: Well, that's always usually the first part of a question.
John D. French: It is indeed. The petitioner in this case had two theories at trial, breach of contract and fraudulent misrepresentation. The court of appeals took away the fraudulent misrepresentation claim on the ground that it didn't apply to the facts of this case. The Minnesota Supreme Court also took away the breach of contract recovery. In both instances at both levels, those decisions were made under State law. And the Minnesota Supreme Court makes it very clear that the First Amendment had no part to play in those rulings. Under those circumstances, the claims that petitioner plead and tried and briefed and argued have been lost to him under Minnesota State law, and there is no way that they can be retrieved. It is--
Sandra Day O'Connor: Well, how is it that the court got into its discussion of promissory estoppel? Is there some Minnesota State law principle that enables the plaintiff to rely on that even though it wasn't directly raised below?
John D. French: --There is not, Justice O'Connor, and with respect I have to... I have to dispute Mr. Rothenberg's representation of Minnesota State law. I think the Court can consult the Cowles Media brief. I believe footnote 3 at page 13 on this subject. What happened... in response to your question... not only to me but to Mr. Rothenberg, Justice O'Connor, is that no one thought about promissory estoppel until, on rebuttal argument in the Minnesota Supreme Court, Justice Yetka, one of the dissenting justices, raised it as a possibility... isn't it possible that estoppel might apply to this set of facts. The Minnesota Supreme Court then did indeed address it, but it is not essential to the decision to vacate the judgment that petitioner won at the trial court level on contract and fraud.
William H. Rehnquist: But surely there's a strong intimation in the part of a majority opinion in the Supreme Court of Minnesota dealing with promissory estoppel that that theory could sustain the judgment, other... otherwise why would they talk about it?
John D. French: It is difficult in the context of Minnesota State law to understand why Justice Simonett talked about it, Your Honor.
Byron R. White: No, it was the court talking about it, wasn't it?
John D. French: It was the court, Your Honor. It was the court talking about it.
Byron R. White: And they talked about it. I wouldn't think that there was any principle of Minnesota law that would prevent them from doing that. We'd have to second-guess the Minnesota Supreme Court, and they've... the court said we decide that... because we decide that contract law does not apply, we have not up 'til now had to consider the First Amendment implications, but now we must.
John D. French: That's correct.
Byron R. White: Under a promissory estoppel analysis there can be no neutrality towards the First Amendment. Then they said... they just held that to uphold... to enforce the promise under a promissory estoppel would violate the defendant's First Amendment rights.
John D. French: May I--
Byron R. White: I would think you're defending that... you've been defending that judgment most of the morning.
John D. French: --May I focus, Justice White, the Court's attention on this sentence. I believe this sentence in the opinion of the court describes what the court was doing. In deciding whether--
William H. Rehnquist: Can you tell us where you're reading from, Mr. French?
John D. French: --I had it in my notes here in front of me.
John Paul Stevens: It's A-13. Page A-13. [Laughter]
John D. French: Thank you, Justice Scalia. That's correct. It is A-13. In deciding whether it would be unjust not to enforce the promise... now that's the framework of promissory estoppel... the court must necessarily weight the same considerations that are weighed for whether the First Amendment has been violated. Now, that is... that sets forth the thought process of a court thinking about Federal principles and incorporating them into its analysis of State law. That is looking to Federal principle for guidance rather than compulsion. And that is why we believe--
John Paul Stevens: Yes, Mr. French, but the next sentence they use the word "must".
John D. French: --I agree, Your Honor. And I... and what... what I would ask the Court to do is... is as follows. First, keep in mind, as Justice Souter said, that at most you do not get to the First Amendment unless you arrive there as a alternative holding. The case could still have been decided under Minnesota promissory estoppel law, as I believe the opinion said it was, without a decision on the First Amendment but with a decision that concepts germane under the First Amendment should inform the decision.
Anthony M. Kennedy: Well, suppose the Supreme of Arizona... of Minnesota has said, we don't think there's any protection for newspapers for confidential sources, and therefore, we apply promissory estoppel. Could you have appealed?
John D. French: Absolutely, Your Honor.
Anthony M. Kennedy: Well, isn't it the same principle?
John D. French: If the Supreme Court of Minnesota had said there is no First Amendment protection and Mr. Cohen prevails, that decision under promissory estoppel in my judgment would have infringed our client's First Amendment rights and we certainly would have appealed. All I'm trying to describe is what the supreme court did. We have... in the Northwest Publications brief at page 25 what I think is a useful recitation of the decisions of this Court with respect to the need to avoid constitutional questions if possible if the decision below is ambiguous. And that would be my second point. First, Justice Souter's point that the holdings are alternative if they are that. Second, it is at most ambiguous and that to avoid the constitutional issue, this Court should conclude that the decision on State law grounds predominates.
Byron R. White: By the way did you defend in the trial court on the grounds of the First Amendment?
John D. French: Yes, absolutely, Justice White. The trial court did not allow it, Your Honor. The trial court ruled that our First Amendment arguments were not relevant. There was no First Amendment issue in the case.
Byron R. White: Was it... was it because there was no State action? Was that... was that the ground?
John D. French: No, he just said... he... there is no First Amendment issue in this case is what the trial judge thought.
Byron R. White: Well, the intermediate appellate court seemed to think that there was no... First Amendment was out of the case because there was no State action.
John D. French: No State action and waiver both, Your Honor.
Byron R. White: What your view about the State action issue?
John D. French: Oh, I think the State action is easy under New York Times against Sullivan. It seems to me--
Byron R. White: Well, that's because... it's because it's a... would involve a claim of damages against the paper.
John D. French: --Yes, Justice White, and in addition beyond that, I think Mr. Rothenberg's invocation of voluntary agreement is a bit of a red herring. You don't know whether the agreement does or does not have force. You do not know what its content is. You do not know what the remedies are until you apply State law. So the law of the State of Minnesota first creates the right, and then the courts enforce it. That seems to me to give rise to State action.
Byron R. White: Thank you. Mr. French, Judge Yetka's dissent at least seemed to think that the decision of the majority of the court was based upon the First Amendment. And his dissent was joined by the other dissenter, Justice Kelley. He said the First Amendment is being misused to avoid liability under the doctrine of promissory estoppel.
John D. French: He could have said that, Justice Scalia--
Byron R. White: What page is that?
John D. French: --I'm... I'm--
John Paul Stevens: Page A-14. [Laughter]
John D. French: --Yeah. Thank you again, Justice Scalia. [Laughter] He could have said that two ways is what I was... is about to suggest, Your Honor. He could have said the First Amendment is misused or it is a misuse of the First Amendment to think about First Amendment principles when you're thinking about promissory estoppel. So it's not clear to me that he is there saying this is a Federal First Amendment case or we're not thinking about the First Amendment right when we're applying State law. The last suggestion I would like to make on this issue of jurisdiction of the Court, which Justice White invited me to do. We pointed out in the cert. papers that the question presented by the petitioner wasn't in the case. The petitioner's question... as the Court will recall... is whether or not an immunity should be conferred on the press with respect to breaking its promises to sources. Now, in the petitioner's reply brief at page 13... I have that one on my own, Justice Scalia, without any assistance, thank you. At page 13 of the reply brief, the petitioner finally acknowledges that the Minnesota Supreme Court did reserve to itself the opportunity, perhaps sometime in the future, to enforce a promise under the doctrine of promissory estoppel. What that means to me is the question that was presented to this Court by the petitioner, the question of immunity is... by the petitioner's own words... not before the Court. And there are cases of this Court which indicate that if it becomes apparent after briefing an oral argument, that the question upon which certiorari was granted is not the question before the Court, the writ will be dismissed. So that is another basis I would suggest for dismissal here.
David H. Souter: Mr. French, assuming we get to the First Amendment issue, there's one thing you said a little while ago that I'm not... I may have misunderstood. Would the result be any different in this case or would the... would the First Amendment's significance be any different in this case if the editors of the newspaper had said, we agree that the promise ought to be kept and yet the reporter had changed his own mind, and said, you know, I shouldn't have made that promise, the informant is a rat and I... and I should expose him and such. And the... and the reporter then went out, contrary to the newspaper's judgment, and revealed the identify. Would the... would the First Amendment protect the reporter against damages, too?
John D. French: You're... you're saying, Justice Souter, the reporter does this on his own as a private citizen?
David H. Souter: That's right. Contrary to the editorial judgment of the principal for whom he was working as a... as a disclosed principal for whom he was working.
John D. French: I suppose the reporter would have an argument that the First Amendment applies to me. If I were judge, it would be very thin. I do not see what the reporter's decision here--
John Paul Stevens: Well, how can you say it would be very... he goes to another newspaper and sells the information and they publish it.
John D. French: --Well, I'm back to the other hypothetical.
John Paul Stevens: Yes, you're exactly... you get exactly the same situation, don't you?
John D. French: If he goes to another newspaper and publishes it, then once again, he has acted contrary to his fiduciary duty to his employer and he has sold a piece of information that doesn't belong to him. He obtained the information in the course of performing services for the first employer.
Anthony M. Kennedy: Does... does it make it easier for you to answer if we assume also that the newspaper is liable for the misdeeds of its agents, so you're stuck for the damages. Does that change your answer?
John D. French: The newspaper is stuck for the damages?
Anthony M. Kennedy: Yes, because of the misdeeds of its agent.
John D. French: I believe that in this context since we are talking about assessing damages with respect to the act of publication, the newspaper should not be stuck for the damages, as you put it, Your Honor.
Anthony M. Kennedy: I don't... and... but the reporter is?
John D. French: No, I'm... the First Amendment always counts. I... I have to come back to that. Mr. Rothenberg--
Anthony M. Kennedy: But most of all when it's the newspaper that's involved.
John D. French: --When... what this Court has said is that it is protecting the public's right to know and it is protecting the process of editorial judgment. What I am defending here is the right of these editors in the context in which they found themselves, having received substantial additional information that the reporters did not know--
Anthony M. Kennedy: But you're not sure as to what happens with the reporter. You're also not sure as to what happens in the hypothetical of where the reporter deliberately misleads, knowing that his promise is going to be countermanded. And it seems to me that that's a very, very difficult position. We're asking what the First Amendment consequences are--
John D. French: --Your Honor--
Anthony M. Kennedy: --And you haven't... and it seems to me that you haven't explained this in a coherent theory.
John D. French: --This... what I... I'll try again, Your Honor. What this Court must do I think is at a minimum say that the Minnesota Supreme Court was right in concluding that First Amendment interest should be balanced. Now, the Court could go far beyond that and erect a much more absolutist rule that says the First Amendment right... the First Amendment interest is so paramount that we cannot think of a circumstance in which the promise must be kept. I don't ask the Court to do that here today, because I think I don't have to. I think if the Court will apply its own prior holdings that with respect to the publication of truthful information of matters of public significance, the First Amendment interest is paramount. And it is possible to balance something against it. It is possible as this Court said... has said many times... to balance a State interest of the highest order. But I haven't seen one of those yet.
Antonin Scalia: Mr. French, that depends on what you mean by balancing. And there are two ways that this opinion that this opinion might be understood. I suppose you... you might say that all it's saying... and this is your position... all it's saying is that you have to take into account First Amendment considerations. But it might also be saying that the First Amendment, not in all circumstances but in some circumstances, prohibits the penalty for the contractual breach. I'm sorry if I went over your time.
John D. French: That's all right, Your Honor. I'm here at your disposal.
Antonin Scalia: I think the Chief Justice will let you-- --By all means answer the question.
John D. French: Your Honor, there should I suspect... if we had 100 of these cases and we could see enough fact situations, I think we would find some instances in which we would say if this is the interest that the claimant is trying to protect, it is insignificant in comparison with the First Amendment interest, and the First Amendment interest always overrides. But there might also be some cases in which the interest advanced by the claimant is regarded by this Court as an interest... a State interest of the highest order. And under the particular facts of the case, it... the Court might hold it was appropriate for the press to honor the promise.
William H. Rehnquist: Thank you, Mr. French. Mr. Rothenberg, do you have rebuttal? You have 5 minutes remaining.
Elliot C. Rothenberg: Mr. Chief Justice, and may it please the Court again: Your Honors, I would like to make a couple of points on rebuttal. First regarding the issue of whether the decision below was based on the First Amendment. We would submit that any fair reading indicates that in fact was based upon the First Amendment. When you look at pages A-12 to A-14, you have such language of the Minnesota Supreme Court saying we have not, up to now, had to consider First Amendment implications but now we must. Under a promissory estoppel, there can be no neutrality towards the First Amendment. The Court must... must balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity, and says that of critical significance to this case is the fact that this promise was made in a classic First Amendment context of the quintessential public debate in our democracy. And finally the court concluded that these promises were unenforceable because of the First Amendment. We would submit, Mr. Chief Justice, that there can be no question that the Minnesota Supreme Court regarded that its decision was required by the First Amendment. Now, regarding the issue of promissory estoppel, again, under this decision, and under the Christianson decision referred to in the decision below, that under Minnesota law when a party pleads a breach of contract that under Minnesota law that court can decide on the basis of promissory estoppel, which basically implies a contract, that State law of Minnesota. And finally the fact that the Minnesota Supreme Court did consider First Amendment issues is sufficient to give this Court jurisdiction under the several cases that were referred to in the briefs under our longstanding practice by the United States Supreme Court. Mr. French says that the issue of whether... if the promise is kept... this is going to prevent the publication of truth. But the question is quite different, Your Honor. As a matter of fact, to obtain the truth in many cases up to 75, 80 percent of the cases in terms of certain news media, their media organizations must make these promises of confidentiality to induce sources of information to give them information. Without these promises, they would not have the truthful information to convey to the public. The public would be deprived of information. Now, that's a very--
Sandra Day O'Connor: Well, Mr. Rothenberg, that troubles me a little, because Mr. Cohen could have sent the information in an unmarked envelope presumably, and the paper would still have had it, right?
Elliot C. Rothenberg: --Yes, Justice O'Connor, but Mr. Cohen, as many other confidential sources, felt that he could trust the promises of the reporters. He felt that the promises would be honored, and therefore, he accepted the promises of the reporters in this case. Basically, the issue is--
Antonin Scalia: Of course, you can't say it comes from a reliable source if you get it in an unmarked envelop, and I assume no responsible reporter would use it if it just came... you know, unless it was independently verifiable somehow. Well, I guess if it was... the question here was just a court record of an earlier prosecution which then the paper could obviously check it.
Elliot C. Rothenberg: --Yes, Justice O'connor. Yes, Justice Scalia, on that one. [Laughter] No, I'm sorry, I didn't mean to... but I think Mr. Cohen felt that, again, he could trust the promises that... as you pointed out, Justice Scalia, that when delivered and trusting the promises... perhaps we carry a little bit more--
Antonin Scalia: I thought you were making a more general argument, Mr. Rothenberg, about the utility of having contractual liability in general, not just in this particular case. Just in this particular case, if that's the argument you're making, it's not--
Elliot C. Rothenberg: --Your Honor, the issue that is raised by Justice Yetka below, where he pointed out that the real issue of this case is the fact that the newspapers made a promise to Mr. Cohen. Mr. Cohen relied upon that promise and provided information that the newspapers consider valuable, in fact, published on the first page of the Star Tribune newspaper. They violated their promise to him. As a result of their violating their promises to them, they caused him damage... considerable damages in the force... in the form of getting him fired from his job and subsequent financial damages. Any other person, any other business, any... in a similar situation would be liable for damages for breach of contract.
Harry A. Blackmun: --Why did he get fired from his job? Why did he get fired from his job as a consequence?
Elliot C. Rothenberg: Justice Blackmun, he got fired from his job precisely because of the newspaper articles. When those articles came out the next day, the Star Tribune article not only identified Mr. Cohen, but also named his employer... gratuitously named his employer, Justice Blackmun.
Harry A. Blackmun: Who was his employer?
Elliot C. Rothenberg: Martin Williams Company, a major Minneapolis advertising company which of course does work for political figures and for the Government. They felt that because of what has happened... because of their being named... that they had to fire Mr. Cohen, and that of course is found by the jury and the Minnesota Court of Appeals and the Minnesota Supreme Court pointed out in their decisions that this is no longer an issue in the case, that this was conceded by the newspapers. Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. Rothenberg. The case is submitted.