Lead Opinion
delivered the opinion of the Court.
The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not.
During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican associated with Wheelock Whitney’s Independent-Republican gubernatorial campaign, approached reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming election. Cohen made clear to the reporters that he would provide the information only if he was given a promise of confidentiality. Reporters from both papers promised to keep Cohen’s identity anonymous and Cohen turned over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation and one reporter tracked down the person who had found the records for Cohen. As it turned out, the unlawful assembly charges arose out of Johnson’s participation in a protest of an alleged failure to hire minority workers on municipal construction projects, and the charges were eventually dismissed. The petit theft conviction was for leaving a store without paying
After consultation and debate, the editorial staffs of the two newspapers independently decided to publish Cohen’s name as part of their stories concerning Johnson. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer.
Cohen sued respondents, the publishers of the Pioneer Press and Star Tribune, in Minnesota state court, alleging fraudulent misrepresentation and breach of contract. The trial court rejected respondents’ argument that the First Amendment barred Cohen’s lawsuit. A jury returned a verdict in Cohen’s favor, awarding him $200,000 in compensatory damages and $500,000 in punitive damages. The Minnesota Court of Appeals, in a split decision, reversed the award of punitive damages after concluding that Cohen had failed to establish a fraud claim, the only claim which would support such an award.
A divided Minnesota Supreme Court reversed the compensatory damages award.
In addressing the promissory estoppel question, the court decided that the most problematic element in establishing such a cause of action here was whether injustice could be avoided only by enforcing the promise of confidentiality made to Cohen. The court stated: “Under a promissory estoppel analysis there can be no neutrality towards the First Amendment. In deciding whether it would be unjust not to enforce the promise, the court must necessarily weigh the same considerations that are weighed for whether the First Amendment has been violated. The court must balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.”
We granted certiorari to consider the First Amendment implications of this case.
Respondents initially contend that the Court should dismiss this case without reaching the merits because the promissory estoppel theory was not argued or presented in the courts below and because the Minnesota Supreme Court’s decision rests entirely on the interpretation of state law. These contentions do not merit extended discussion. 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,
The initial question we face is whether a private cause of action for promissory estoppel involves “state action” within the meaning of the Fourteenth Amendment such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times Co. v. Sullivan,
Respondents rely on the proposition that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a
This case, however, is not controlled by this line of cases but, rather, by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. Branzburg v. Hayes,
There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment does not forbid its application to the press.
Justice Blackmun suggests that applying Minnesota promissory estoppel doctrine in this case will “punish” respondents for publishing truthful information that was lawfully obtained. Post, at 675-676. This is not strictly accurate because compensatory damages are not a form of punishment, as were the criminal sanctions at issue in Smith v. Daily Mail, supra. If the contract between the parties in this case had contained a liquidated damages provision, it would be perfectly clear that the payment to petitioner would represent a cost of acquiring newsworthy material to be published at a profit, rather than a punishment imposed by the State. The payment of compensatory damages in this case is constitutionally indistinguishable from a generous bonus paid to a confidential news source. In any event, as indicated above, the characterization of the payment makes no difference for First Amendment purposes when the law being applied is a general law and does not single out the press. Moreover, Justice Blackmun’s reliance on cases like Florida Star v. B. J. F., supra, and Smith v. Daily Mail is misplaced. In those cases, the State itself defined the content of publications that would trigger liability. Here, by con
Also, it is not at all clear that respondents obtained Cohen’s name “lawfully” in this case, at least for purposes of publishing it. Unlike the situation in Florida Star, where the rape victim’s name was obtained through lawful access to a police report, respondents obtained Cohen’s name only by making a promise that they did not honor. The dissenting opinions suggest that the press should not be subject to any law, including copyright law for example, which in any fashion or to any degree limits or restricts the press’ right to report truthful information. The First Amendment does not grant the press such limitless protection.
Nor is Cohen attempting to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. As the Minnesota Supreme Court observed here, “Cohen could not sue for defamation because the information disclosed [his name] was true.”
Respondents and amici argue that permitting Cohen to maintain a cause of action for promissory estoppel will inhibit truthful reporting because news organizations will have legal incentives not to disclose a confidential source’s identity even when that person’s identity is itself newsworthy. Justice Souter makes a similar argument. But if this is the case,
So ordered.
Dissenting Opinion
with whom Justice Marshall and Justice Souter join, dissenting.
I agree with the Court that the decision of the Supreme Court of Minnesota rested on federal grounds and that the judicial enforcement of petitioner’s promissory estoppel claim constitutes state action under the Fourteenth Amendment. I do not agree, however, that the use of that claim to penalize the reporting of truthful information regarding a political campaign does not violate the First Amendment. Accordingly, I dissent.
The majority concludes that this case is not controlled by the decision in Smith v. Daily Mail Publishing Co., 443
I do not read the decision of the Supreme Court of Minnesota to create any exception to, or immunity from, the laws of that State for members of the press. In my view, the court’s decision is premised, not on the identity of the speaker, but on the speech itself. Thus, the court found it to be of “critical significance,” that “the promise of anonymity arises in the classic First Amendment context of the quintessential public debate in our democratic society, namely, a political source involved in a political campaign.”
In Branzburg, for example, this Court found it significant that “these cases involve no intrusions upon speech or assembly, no . . . restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. . . . [N]o penalty, civil or criminal, related to the content of published material is at issue here.”
Contrary to the majority, I regard our decision in Hustler Magazine, Inc. v. Falwell,
As in Hustler, the operation of Minnesota’s doctrine of promissory estoppel in this case cannot be said to have a merely “incidental” burden on speech; the publication of important political speech is the claimed violation. Thus, as in Hustler, the law may not be enforced to punish the expres
To the extent that truthful speech may ever be sanctioned consistent with the First Amendment, it must be in furtherance of a state interest “of the highest order.” Smith,
I respectfully dissent.
Notes
The only arguable exception is Zacchini v. Scripps-Howard Broadcasting Co.,
The Virginia cause of action for intentional infliction of emotional distress at issue in Hustler provided for recovery where a plaintiff could demonstrate “that the defendant’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff’s emotional distress; and (4) caused emotional distress that was severe.”
The majority attempts to distinguish Hustler on the ground that there the plaintiff sought damages for injury to his state of mind whereas the petitioner here sought damages “for a breach of a promise that caused him to lose his job and lowered his earning capacity.” Ante, at 671. I perceive no meaningful distinction between a statute that penalizes published speech in order to protect the individual’s psychological well being or reputational interest and one that exacts the same penalty in order to compensate the loss of employment or earning potential. Certainly, our decision in Hustler recognized no such distinction.
The majority argues that, unlike the criminal sanctions we considered in Smith v. Daily Mail Publishing Co.,
Though they be civil, the sanctions we review in this case are no more justifiable as “a cost of acquiring newsworthy material,” ante, at 670, than were the libel damages at issue in New York Times Co., a permissible cost of disseminating newsworthy material.
Dissenting Opinion
with whom Justice Marshall, Justice Blackmun, and Justice O’Connor join, dissenting.
I agree with Justice Blackmun that this case does not fall within the line of authority holding the press to laws of general applicability where commercial activities and rela
“when [such effects] have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. . . . Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved.” Konigsberg v. State Bar of California,366 U. S. 36 , 51 (1961).
Thus, “[t]here is nothing talismanic about neutral laws of general applicability,” Employment Div., Dept. of Human Resources of Ore. v. Smith,
Nor can I accept the majority’s position that we may dispense with balancing because the burden on publication is in a sense “self-imposed” by the newspaper’s voluntary promise of confidentiality. See ante, at 671. This suggests both the possibility of waiver, the requirements for which have not been met here, see, e. g., Curtis Publishing Co. v. Butts,
The importance of this public interest is integral to the balance that should be struck in this case. There can be no doubt that the fact of Cohen’s identity expanded the universe of information relevant to the choice faced by Minnesota voters in that State’s 1982 gubernatorial election, the publication of which was thus of the sort quintessentially subject to strict First Amendment protection. See, e. g., Eu v. San Francisco Cty. Democratic Central Comm.,
This is not to say that the breach of such a promise of confidentiality could never give rise to liability. One can conceive of situations in which the injured party is a private indi
Because I believe the State’s interest in enforcing a newspaper’s promise of confidentiality insufficient to outweigh the interest in unfettered publication of the information revealed in this case, I respectfully dissent.