Cohen v. Cowles Media Co.

liability under it 617.246 as relates to § facts.

these

DECISION facially Minn.Stat. 617.246 is not over- § it substantially pro- broad because does not constitutionally protected expression. hibit 617.246, Minn.Stat. subd. contains a § standard of determinable conduct unconstitutionally nor vague does it substantially rights. chill first amendment

Affirmed. COHEN, (C8-88-2631), Respondent Dan (C0-88-2672),

Respondent COMPANY, MEDIA COWLES d/b/a Minneapolis Compa Star and Tribune ny, (C8-88-2631), Appellant Defendant

(C0-88-2672), Publications, Inc., Northwest Defendant (C0-88-2672). (C8-88-2631), Appellant C8-88-2631, Nos. C0-88-2672. Appeals Court of of Minnesota. Sept. 5, 1989. Minneapolis, Rothenberg,

Elliot C. for Dan Cohen. Fitzmaurice, Borger, An- John

James Benson, Dunne, Faegre & Patricia drew S. (Norton Armour, Longstaff A. L. Cowles Co., counsel), Minneapolis, for Media Co., Minneapolis Cowles Media d/b/a Star and Tribune Co. Hannah, (Richard R.

Paul St. Paul J. Ovelmen, dayman, K. & Landon Baker McKenzie, Miami, Fla., counsel), Publications, Northwest Inc. Heard, and decided considered SHORT, P.J., and CRIPPEN and SCHULTZ,* JJ.

OPINION

SHORT, Judge. Company, d/b/a Minne-

Cowles Media (Tribune) and apolis and Tribune Star Publications, (Dispatch), ap- Northwest Inc. awarding judgment peal the trial court’s $200,000 compensatory Cohen $500,000 damages. punitive This and publi- newspapers’ out of the action arises reporters em- name after cation of Cohen’s promised had ployed by newspapers publish- not be his name would Cohen that that the first court concluded ed. The trial breach of Cohen’s did not bar claims misrepresentation contract jury. submitted those claims favor Cohen. jury returned a verdict al- newspapers’ denied the The trial court judgment notwith- motions for ternative On new trial. standing the verdict and a * Const, VI, pointment pursuant § art. 2. Appeals by ap- to Minn. Acting judge as of the Court of

appeal, argue that the trial provide which I would this material to (1) ignoring protection you, erred in provide court I will it. amendment, afforded the the first reporters All agreed three to meet with

(2) jury instructing respect with Co- him. claim, (3) submitting hen’s contract is- morning, Later separate- Cohen met (4) the jury, submitting sue of fraud to ly Salisbury Sturdevant and in the punitive damages jury, issue to the Capitol building State news office. He (5) admitting prejudicial irrelevant and evi- made following proposal report- to each regarding dence other Tribune publica- er. judgment tions. We affirm the on the I have some documents may which claim, breach of contract but reverse as to may not relate to a candidate in the misrepresentation puni- claims for upcoming election, you and if will give damages. tive promise me a of confidentiality, that is that I anonymous will be treated as an FACTS source, my appear name will not 1983, respondent In the fall of Dan Co- this, in material connection with and hen the director of was relations for you that agree will also you’re that advertising agency. an agency That was going pursue to me question with handling advertising campaign the the for is, my who I you source then will furnish Whitney, Independent of Wheelock the Re- with the documents. (IR) publican gubernatorial Co- candidate. promptly Sturdevant and unequivocally hen long-time was a and IR well-known agreed to proposal. Cohen’s Cohen then supporter. guberna- One week before the gave documents, her copies of the and she elections, Gary Flakne, torial a former IR said, allegedly “This of thing is the sort legislator county attorney, and unearthed that I’d to you bring again like have by if documents which demonstrated that you ever anything have like it.” Sturde- (DFL) Democratic-Farmer-Labor candi- vant then asked Cohen if she had this infor- governor, date for lieutenant John- Marlene mation on an basis. exclusive Cohen said son, been had arrested 1969 for unlawful protest “No.” Sturdevant did not or ex- (that assembly charge dropped) later was press any dissatisfaction this nonex- petty arrested and convicted theft arrangement. clusive (that 1971). conviction was vacated Salisbury agreed immediately also to Co- meeting Flakne scheduled with several proposal regarding hen’s anonymity. Af- supporters IR for October to discuss reviewing papers given ter Cohen had release these documents to the media. him, Salisbury “political them described as meeting. Cohen attended dynamite.” exclusivity The issue was meeting, group At the decided that never discussed between Cohen and Salis- person Cohen should to release the bury. he rapport documents because had the best separately Cohen then met with Nelson group with the local media. The further proposal and Nimmer. The same agreed discussed and Cohen should reporter accepted by made to each and was anonymity releasing retain the informa- promise of securing each. After confi- immediately tion. Cohen four contacted dentiality, delivered the Cohen documents. journalists: Lori Sturdevant the Trib- une; Salisbury Bill Dispatch; Gerry of the Thereafter, Cohen returned to work and Press; of the Nelson Associated and David supervisor sup- informed that he had his Nimmer of WCCO Television. He reached plied the documents to the media. Cohen by telephone all Nimmer but and said: supervisor testified that his had no reaction I may may have some material which to supervisor, as his The disclosure. how- ever, upcoming not relate to the upset statewide at trial testified that he was assuming election. And unscrupu- we can he what believed were Cohen’s agreement practices. reach as to the basis on lous day Perpich Johnson failed to reveal in- immediately reported the Sturdevant them, living a lie. it to were from Cohen had received formation she as- Tribune editors supervisor. her Tribune ran an October On up reporters five to follow signed four or appearing on the bottom half article of the story members on the contact page, “Marlene Johnson Ar- front entitled reporter, A campaigns. gubernatorial two Ally.” by Whitney Pursu- rests Disclosed authenticity verify who was directed demand, the ant to Sturdevant’s article was records, Gary discovered court to “Staff Writer.” The article attributed persons having the list of Flakne’s name on conviction, disclosed Johnson’s arrests and report- the records. recently reviewed named Cohen as the source of the Flakne for Flakne and asked er contacted also revealed information. The article documents. those whom he had obtained employed agency han- Cohen was he reporter that had ob- Flakne told the IR dling advertising gubernato- for Cohen. tained the documents campaign. The article did not mention rial promise of anonymity Co- Sturdevant’s the ultimate Tribune editor who had hen. story run the convened say in whether to p.m. 3:00 to dis- sometime around “huddle” to the manner in contrast which That handling of the information. matter, cuss the Dispatch Tribune handled the that if the Tribune did group decided engage did not in involved delibera- editors story, paper could be accused deciding run the tions before disclose Cohen’s damaging to suppressing information identity. Salisbury objected also to dishon- However, sim- party. They oring promise DFL also discussed to Cohen. he the his appearing on the ar- to on ply publishing object the information not his name the did honoring the prom- Dispatch and The ran an article similar rest and conviction article. Dispatch group it un- the in both editions ise The considered to Tribune’s to Cohen. appeared 28. The articles satisfactory the source as on October to describe sections, the con- the local news disclosed Whitney campaign Whitney supporter, a arrests, and identified Cohen member, Independent Re- victions and prominent or a This occasion was the first as the source. had never before publican. The Tribune Dispatch the had dishonored a time that reporter-source agreement. dishonored a keep a confi- reporter’s promise to source Sturdevant, part not the who was stated that Co- While the articles dential. input into and had no other “huddle” used, they name not be hen asked that his story reported, was asked whether the was Dispatch reporter disclose that failed to to see Cohen would by her editors whether confi- promised keep to Cohen’s name had promise of the from its release Tribune article, how- the Tribune dential. Unlike expressed her ada- anonymity. Sturdevant ever, did mention Dispatch articles not the promise dishonoring the objection to mant employer. the name of Cohen’s her demanded that name to Cohen and she report- its The Press honored Associated pub- it be appear on the article should stating that court promise to er’s Cohen agreed to write lished. She nevertheless and con- relating to the arrests documents to ask to release the the article and Cohen reporters.” slipped “were viction promise. telephoned from its She Tribune reporter’s its also honored WCCO-TV times, each time two or three but Cohen the deciding not to broadcast promise by agree his to have name Cohen refused story all. at Finally, decided to published. the Tribune identity. disclosing story run Cohen’s the after day in the on October Later to inform then contacted Cohen employ- Sturdevant learning Cohen’s name if his name the he said him of situation and with published connection ment had been published, to make the was to be he wanted him employer confronted story, the Cohen’s following statement: According ensued. discussion and heated with his Cohen, discussion ended entitled to to voters of this state are employ- According to Cohen’s Every being information. fired. know that kind of

er, resigned. The newspapers name, Cohen do closure of Cohen’s even dispute though Cohen now was fired or such disclosure was truthful resign newsworthy? forced otherwise as a result of story. the II. Did instructing the trial court err in jury respect with Cohen’s con- published On the Tribune October tract claim? criticizing self-right- for column Cohen his campaign eousness and unfair III. Did denying tactics. On the trial court err in 30, the ran newspapers’ judgment October Tribune an editorial motions for depicting notwithstanding cartoon a trick-or-treater outfit- verdict garbage knocking ted as a can misrepresentation on the door claim? headquarters. garbage of the DFL IV. Did the trial court err in submitting campaign can was labeled “Last minute punitive the issue to the smears,” governor Rudy Perpich jury? door, stating, opening “It’s Dan Co- Did the court V. trial commit reversible hen.” admitting error in pub- other Tribune during beginning Sometime the week Oc- lications into evidence? tober Flakne wrote to the editor Dispatch criticizing ANALYSIS both reporter-source their agree- breach I. Cohen. with On November four correctly trial court concluded that election, days Dispatch print- after amendment does not bar Cohen’s page. ed Flakne’s letter on its editorial contract claim. There action, is no state day, That same Tribune ran a more alleged rights first amendment do not along edited version Flakne’s letter outweigh governmental interests, explaining why newspaper article newspapers knowingly waived their reporter’s had its promise overridden rights. first amendment Cohen. subsequently Cohen commenced this A. State Action misrepresentation breach of contract and We that is believe there no state action, seeking compensatory pu- both present trigger action in this case to damages. jury nitive The found that both scrutiny. amendment The first amendment newspapers binding had entered into con- prohibits government making from tracts with Cohen and that breached “abridging speech, laws the freedom of or jury those contracts. The further found press.” of the Const. I. U.S. Amend. The newspapers that both made material mis- only government first amendment bars ac representations jury of fact Cohen. The speech tion that free restricts or free $200,000 compensatory awarded Cohen in dom. Public Utilities Commission Dis of $500,000 punitive damages. in Pollak, 451, trict v. Columbia 343 U.S. newspapers alternatively The for moved 461, 820, 813, 72 S.Ct. 96 1068 L.Ed. judgment notwithstanding the or verdict Supreme United States Court trial, alleging new numerous court trial in repeatedly variety has held of contexts errors. trial court denied these mo- application neutral laws is state judgment. tions and entered The Tribune not state action. See Tulsa Professional Dispatch separately appealed Services, Collection Inc. v. 485 Pope, U.S. judgment, and we appeals. consolidated the 478, -, 1340, 1345, 108 S.Ct. 99 L.Ed.2d (1988) (private 565 use of state sanctioned

ISSUES private procedures remedies does not I.Did the trial err in concluding action); court Flagg rise level of state Broth ers, Brooks, 149, first amendment 163, does not Inc. v. 436 U.S. 98 1729, an action 1737, (1978) (ac

bar for breach of contract S.Ct. L.Ed.2d 56 185 against pursuant for dis- their tion to state is not state law 435, 446, property ating people’s the denial of black action); Abney, v. U.S. Evans (1970) rights, defeating were the basic 24 L.Ed.2d 634 courts nondiscriminatory objective (operation of the fourteenth amendment. of neutral and state laws does not constitute state trust Although language Shelley is ex- action). federal The decisions other pansive, it stand for we believe does not v. are in accord. See Peters United courts application proposition of neutral States, (Fed.Cir.1982) 694 F.2d always common is action. law rules state- (modification govern of contract which Evans, held Supreme Court for ex- action); party is is not state War ample, operation that “the neutral Mortgage National ren v. Government nondiscriminatory trust did not state laws”- (8th Association, Cir. 611 F.2d purposes for constitute state action 1980) pursuant to (extrajudicial foreclosure 446, 90 fourteenth amendment. 396 U.S. at of trust power of sale terms of deed Evans, alleged at 634. In S.Ct. state with state law is performed in accordance application action was the of neutral rules denied, action), 449 U.S. not state cert. designed of construction to determine the (1980); v. 66 L.Ed.2d 57 Doe S.Ct. intent of the testator. The Court held that Keane, (W.D.Mich. F.Supp. 220-21 such action does not violate the fourteenth 1987) (exercise state of a choice allowed amendment. Id. law, private from where initiative comes Thus, the issue is this court faces wheth- state, pri make and not from cannot actor principles application er the of neutral act); act state Price v. Internation vate promise to publish contract law to not Union, Aerospace al United Automobile is source information state action which Implement Agricultural & Workers of scrutiny. We triggers first be- (D.Conn. America, F.Supp. closely lieve the rule Evans more fits 1985) (court possible is intervention situation, our and therefore hold state in itself on a contract and does not suit present. The court action is here was merely free constitute state action engaging in intervention” at the “active curtailed); speech may be International request parties, of third as was the case Consciousness, Society Inc. Krishna Rather, parties themselves Shelley. (C.D.Cal. Reber, F.Supp. 1388-89 agreement without involvement made the (use 1978) trespass to enforce of state laws the con- by the state. The enforcement of action). rights private property state impermissible involvement tract is not state private parties make use Only when right. a constitutional in the denial of overt, significant procedures with the state Rather, enforcing agree- the state officials, of state has the United assistance private who have parties ment between to Supreme Court found state action States published of in- for the content bargained present. Lugar v. Edmondson Oil See circumstances, formation. In these 937, 2753, 922, 2744, Co., 102 457 U.S. S.Ct. ultimate even with parties’ agreement, (1982). 482 73 L.Ed.2d deserving of enforcement, first is not state can do not doubt that court action We scrutiny. amendment circumstanc- constitute state action in some Supreme held New York The Court Kraemer, 1, 68 Shelley 334 U.S. es. v. 254, Sullivan, 84 376 S.Ct. v. U.S. Times (1948), 836, 92 L.Ed. 1161 the Su- S.Ct. (1964), 710, application 11 L.Ed.2d 686 preme state enforcement of Court held newspaper law to of defamation state ac- racially state restrictive covenant was 265, 84 S.Ct. at Id. at was state action. by prohibited the fourteenth amend- tion rule New York 718. We believe case, parties, by In that third aided ment. to an action little relevance has Times courts, real preventing the sale of were law. Defamation under contract brought by enforcing racially restrictive property speech. the content of inherently limits 18, law 844. Un- covenants. Id. at 68 S.Ct. at of the the elements Speech which meets circumstances, the state courts’ der these require- malice tort at defamation Id. conduct was “active intervention.” may be sane- 19, of New York Times By actively perpetu- at ments 68 S.Ct. 845. 256 NLRB, damage 103, 132,

tioned awards enforced the Press v. 301 U.S. 57 S.Ct. is, believe, 650, 655, (1937); law we funda- 81 L.Ed. courts. Contract 953 Galella v. Onassis, (2nd 986, Cir.1973). different. The mentally rules of contract 487 F.2d 995 any particular speech. organizations law do sanction News exempt are not from laws, parties speech themselves chose the or federal labor see Oklahoma Press 186, be the subject Publishing conduct wished to mat- v. 327 Walling, Co. U.S. 192-93, 494, 497-98, ter contract. An award contract of the 66 S.Ct. 90 L.Ed. 614 therefore, (1946), damages, nondiscriminatory does not sanction the or from forms themselves, general words or conduct but rather Grosjean taxation. v. American 250, promise. Co., 233, 444, to the failure honor a Because Press 297 U.S. 56 S.Ct. 449, suppression of the court is not 80 the action L.Ed. 660 State and federal speech, type governments is not state action of the subject newspapers it at can to Thus, we generally applicable regulations issue in New York Times. con- economic application violating clude con- neutral without the first amendment. private agree- Co., principles party’s Minneapolis tract to a Star & Tribune 460 U.S. suppress action, speech is not state at S.Ct. at 1369. require does amendment scru- press pub also is not free to tiny. impunity with everything lish it desires publish, nor does it have a constitutional Weighing Competing B. Interests guarantee of access to information not Assuming that this civil contract public generally. to the available Branz may suit nonetheless constitute ac state 683-84, burg, 408 U.S. at S.Ct. at 2657- tion, the first amendment still did not re Consequently, 58. the first amendment the obligation they lieve the permits grand jury the media’s access to had to honor terms their contract conferences, proceedings, judicial meetings Supreme Cohen. United States of other official bodies in executive ses balancing adopted Court to de has test sions, scenes, disaster or criminal trials termine official action whether which has be restricted in some at circumstances. Id. chilling speech adverse effects on vio 684-85, at 92 S.Ct. 2658-59. See also Nix Minneapolis lates first amendment. Communications, Inc., on v. Warner Star & Tribune Co. v. Minnesota Com U.S. 98 S.Ct. 575, 582, Revenue, 460 missioner U.S. (1978)(first gener L.Ed.2d 570 (1983); 75 L.Ed.2d 295 grants right ally greater to infor 680-81, Branzburg Hayes, 408 U.S. general mation about trial than that 2646, 2656-57, S.Ct. L.Ed.2d public). (1972). A burden on first amendment apparent It is from these and oth rights justified only necessary if organizations er federal cases news governmental overriding achieve an inter rely cannot on the first amendment Co., Minneapolis est. & Tribune Star from shield themselves criminal or civil lia U.S. at at S.Ct. 1370. bility simply giving the acts rise to Supreme The Court has found a liability pursuit in such were taken while of permissible variety of the burdens on newsworthy information. is even It more press. example, For the first amendment organizations apparent that news are not application does not invalidate civil the of exempt liability they from when breach press or criminal laws to members of the very purpose into contracts entered for the despite press the burden on which freedom gathering of the news. impose. application may Branzburg, their 682-83, governmental 408 U.S. at 92 S.Ct. at The interest in 2657-58. al Newspapers special immunity lowing damage no in in have from the civil award the laws, application general outweighs they the of nor case the intrusion on do stant special rights have a to an privilege government invade the The has interest freedom. Id.; expectations person of of a protecting liberties others. in the Associated damage contract in award because the a contract reliance civil freely enters into who remedy any power newspapers to dam- The claim that on the court’s itself is invalid. might source, the age he or suffer should other journalist, she not the has only the perform. fail party to confidentiality agree a right a to enforce to newspapers The have failed cite ment. rights protection The of has contractual suggests that a source any case law which compelling to be state inter- found a been right confidentiality no to enforce a has in est another context. See Duluth Lum- fact, agreement. authority leading im Development, Plywood ber & Co. v. Delta plies to confi that the source’s wish remain (Minn.1979) Inc., 281 N.W.2d 381-83 important dential is an factor to consider in (holding compelling in state has interest determining compel release applying dispute contract law to a civil whether to its Indeed, Tribe). involving Chippewa The United only information. case we Supreme implicitly Court has found States found discusses breach of con have which protection rights to a contractual suggests may bring that a tract source an to governmental interest out- sufficient against publisher breaking action rights. weigh Snepp v. promise confidentiality. Huskey See States, 444 U.S. United Co., Broadcasting F.Supp. National curiam) (where (1980) (per L.Ed.2d 704 (N.D.Ill.1986). 1292 n. 15 dissenting opinions majority and both newspapers argue also

agreed appropri- remedies were contractual in governmental allowing to to interest suppress ate enforce a contract is speech). suit minimal civil because re ethical, porters’ promises are legal obli provide protec- less We find no reason to gations, in and court intervention such expectations to of a tion the reasonable disagree. is inappropriate. cases We newspaper any informant than we would to specter large damage of a award is a much party newspaper to whom the makes other a publisher more incentive for effective promise. Surely, newspapers would promise confidentiality honor a than the suggest ordinary are immune to from fear criticism other members goods commercial contracts for and servic- Indeed, press. any profession such fear Yet es. maintain that an apparently al in this criticism case was agreement exempt a news source is appellants insufficient to convince to abide disagree. from the of contracts. We law promises. their agreement information, to provide like service, appropriate subject is an other public’s We are not convinced matter for the law of contracts. access to information is restricted our damage decision to allow contract award against Balanced the clear interest in not to enforce the this case. Were we impartially protect the of the state to sanc promises confidentiality, newspapers’ alleged tity of burden con contracts legal confidential sources would have upon press. The places tract law news against unscrupulous reporters or recourse papers argue the newsworthiness of Co Ultimately, could editors. news sources outweigh enough hen’s name up, resulting newsworthy in infor- dry less enforcing in state’s interest contract. publish. Our decision enhances mation newspapers had in disagree. The We pro- expressed interest legislatively relating providing terest information tecting confidential news sources order credibility and motivations free flow of information to promote the source, necessarily providing but not Co and, ultimately, public. to the media Reporting the source hen’s name. (1988). 595.022 See Minn.Stat. aligned IR party § was with the some manner have satisfied the need to would not intrude into decision also does Our describe the source. itself, and does not process the editorial publish information law- right to limit the newspapers argue

The promise of confi- without a allowing fully has interest in a obtained government 258

dentiality. Publishing petty having Herald unscrupulous Miami released Cf. Tornillo, 241, 258, however, argument, U.S. it. this Co. v. Some form of 2831, 2839, (1974)(suggest every L.Ed.2d could be used in confidential source ing government regulate cannot reporter editorial situation because never knows case, processes). newspapers, exactly get what information he or she will Furthermore, through reporters, voluntarily agreed promise their when the is made. case, name in publish reporters Cohen’s return for in this must have antici- tq publishable Damages pated give damaging other information. them Cohen was merely were awarded not because the DFL information candidate about be- newspapers published Cohen’s name but cause he might said that information so, they by doing because violated political report- their relate candidate. The any contracts him. We do not think it an ers’ knowing waivers are not less or require keep voluntary undue burden to merely they did not promises. its exactly they know what information would

receive. C. Waiver significant It is that the waiver in this right

A constitutional cannot be ease was not extracted state. Rath- er, clear and except compelling waived cir part negotiated waiver of a was Publishing cumstances. v. agreement experienced Curtis Co. reporters between Butts, 388 experienced political U.S. S.Ct. operative. and an Un- 1986, 18 First circumstances, L.Ed.2d amend der these the newspapers’ rights may be waived “where the waivers as protection do not deserve much surrounding facts and circumstances as pleading would a criminal defendant party waiver that the make it clear fore guilty waiving to a or by jury. crime trial going rights its has done so of its own significant alleged It also is that the state volition, understanding with full of the con suppress action here was not intended to sequences of its waiver.” viewpoint. Erie Telecom merely It content-neutral munications, City Erie, Inc. Penn agreement pri- enforcement of an between (3rd sylvania, 853 F.2d parties equal Cir. bargaining power. vate 1988). Under the circumstances in this case, newspapers we conclude that the ef II. fectively any waived first amendment Dispatch argues the trial rights they may publish have had to Co failing to jury court erred in instruct the

hen’s name source of the as the documents that there can no contract where be one relating people pledg to Johnson. two party does all material not disclose facts ing in the confidentiality instant case were party which he other knows the does reporters given both seasoned who had party the other know and which would regular pledges many such on a basis for need to know to make informed decision years prior They to this incident. also party under the A circumstances. is enti knew as an prom Cohen’s status active and jury only tled to a instruction when the Republican, Independent inent and thus party presents supporting evidence its the could knew that his name be of ory Larson, of recovery. Lhotka v. Therefore, they interest. understood that Minn. 238 N.W.2d n. 125 n. they waiving right publish were (1976). Here, Salisbury stated that Co potentially newsworthy item in return for any hen him in did not deceive mislead obtaining potentially newsworthy another he way. He also was well stated aware item from Cohen. party the IR Cohen was active supporter. Finally, argue Whitney also that was a Salis bury knowing the waivers were not did not even consider whether the volun exclusive, reporters tary did information and he did because the not know was to it. Given the were about not ask Cohen about lack of information to receive inducement, the would to make evidence of fraudulent be such as Cohen seem

259 III. refused to submit the properly court trial instructions. proposed jury argue newspapers The that the trial failing grant judgment court in to erred argues the infor The that Tribune notwithstanding misrep- the verdict on insignifi so provided Cohen was mation The to ap- resentation claim. standard be when it as consideration that fails cant plied determining propriety grant- valuable the much more compared with ing judgment a motion for notwithstand- confidentiality. ex As Cohen’s promise ing any is there is the verdict whether testified, however, journalist witness pert competent reasonably tending evidence to industry deals are common such support the verdict. Bisher v. Homart know exact way journalists there is no can 731, Co., Development 328 N.W.2d information before ly how will be valuable (Minn.1983)(quoting Trollhaugen, Seidl v. giv promise confidentiality is the return Inc., 305 Minn. 232 N.W.2d Furthermore, Salisbury both and Stur- en. (1975)). accept The trial court must felt the information about devant that the view the evidence most favorable to important, under was in fact thus Johnson every the verdict and admit inference rea- argu any cutting failure of consideration sonably to drawn from that evidence. supplied The ment. documents Cohen undisputed Id. When the facts are sufficient consideration. were can reasonable minds draw but one conclu- sion, also claims the con Tribune question becomes one of law for subject is unenforceable because the Kramer, tract v. the court. Kramer 282 Minn. deceptive ma 58, 65, (1968). matter of the contract 162 N.W.2d We process. of the electoral nipulation find instant case there that was newspapers rely on 17 C.J.S. Contracts misrepresentation law, aas matter of (1963), which states: “Contracts failing grant trial erred in to court § impair impair integrity to or tend newspapers’ judgment which motion notwith- against poli public are elections standing misrepresenta- on the the verdict however, This contem cy.” provision, tion claim. pay such as those where plates contracts actionable, misrepre To be contingent upon of influ ment is the use misrepresent present sentation must another’s election or where ence secure past Agency, fact. Dollar Travel Inc. v. party contract. the candidate is a to the Airlines, Inc., N.W.2d Northwest payment made no to the Because Cohen (Minn.Ct.App.1984). Simply because a promise newspapers and exacted no perform party the future fails to does would use their influence misrepresen any mean there Whitney’s attempt to secure or otherwise tation at time the contract was made. election, the contract did not involve However, party, entering if the Id. when pro wrongful manipulation of the electoral contract, never intent to into had cess. contract, the act of perform the then enter newspapers argue that Finally, the ing per into with no intent a contract confidentiality is not enforce promise misrepresentation. form constitutes part “agreement of an able because it Schlagel, v. 375 N.W.2d Wood performed its is not terms to be (Minn.Ct.App.1985). year making from the thereof.” one

within 513.01(1) reporters (1988). concedes The stat Cohen Minn.Stat. See § however, perform the con intended apply, of frauds does themselves ute misrep did fully per not commit party one can and does tracts and that where however, claims, Iverson, He that the year. resentations. Langan form within the perform intended the con editors never 78 Minn. N.W. perform inapplicable tracts that the intent not is thus statute deemed to have been fully performed his obli should thus be Cohen contracts, inception upon delivery present at the gations the documents. reporters when the promises. made the if party tion one special has access to the Guy T. Bisbee Co. v. Cohen relies on Gran- not, facts and the other does omitting or if City Investing Corp., ite 159 Minn. the fact is misleading. Prop Sit v. T M& (1924), 199 N.W. erties, proposi- for the 408 N.W.2d (Minn.Ct.App. perform tion that an intent not to at the 1987). case, however, In this there was no inception of a contract can be inferred evidence reporters promised who confi period where the of time between the mak- dentiality special had newspa access to the ing promise repudiation and its pers’ policy regarding written confidentiali short, change and there is no in circum- ty. The evidence they showed were un on Bisbee is mis- reliance stances. Cohen’s Further, aware of it. there was no evi placed. dence that the omission of fact was mis leading. practice The actual of the news Bisbee, In there was other circumstantial papers by was to reporters’ abide their suggest evidence to that the tortfeasor did promises fact, of confidentiality. no wit keep promise not intend to at the time prior ness could recall a instance when the promise Thus, was made. the court promise reporter of a by was vetoed faced an evidentiary problem was editor. reporters Seasoned that, they believed although party may have indeed authority had to bind the newspapers. perform, intended not to there was no di- past practice, Based on we believe did rect evidence this intent. Recognizing have such authority. Because it that direct evidence of intent is often un- available, newspapers’ practice to report the court honor their held that under the promises ers’ case, confidentiality, report circumstances outlined in that an in- by ers did not misrepresent omission perform tent not to their could be inferred from authority. place the fact the breach took soon after the contracts were formed. Id. at circumstances, Under these the tri 243-44, case, at 16. In this N.W. how- al court failing grant erred in the news ever, because there is direct evidence of papers’ judgment motion for notwithstand reporters’ intentions, both the and editors’ ing misrepresentation the verdict on the unnecessary resort to inferences is and in- claim. There was no evidence of material appropriate. misrepresentations or omissions. Accord alternatively Swanson v.

Cohen relies on ingly, we reverse this issue. Because Domning, 251 Minn. 86 N.W.2d newspapers engaged independent in no (1957), which tort, held that where a punitive unavailable, see damages are principal agent becomes aware that an has Haagenson v. National Farmers Union representations fact, made untrue Co., re- Property Casualty & 277 N.W.2d gardless agent of whether (Minn.1979), himself and the trial court’s award representations untrue, knew were punitive damages must be set aside. principal may not retain benefits of IV. transaction and at the same time es- cape liability representations for the untrue misrepre Because there no were which benefits were obtained. sentations, may only Cohen recover com here,

Swanson apply however, does pensatory damages resulting from the agents themselves made no nonpunitive breaches of contracts. The misrepresentations, innocently either or damages were compensate awarded to Co knowingly. job. hen for loss of his consequential claim are special these argues Cohen also that his mis i.e., damages, contemplated representation claim report is based on the parties entering when into the con ers’ concealment of the fact that they had tracts, and therefore are not recoverable in authority newspapers. to bind the We a breach of contract action. support find no evidence to theory. Hadley may give An omission of a material fact Minnesota follows the rule of Baxendale, misrepresenta- rise to a cause of action for Ex. Eng.Rep. in its determinations as to damages recovera has discretion (1854), holds that which prejudicial of evi- the relevance and effect those which in actions are ble contract Lee, dence. State 282 N.W.2d or v. naturally the breach those from arise (Minn.1979). The of admission inadmissible to con supposed have been can be which requires only a trial if the evidence new the templated by parties the when contract prejudicial. is v. Tappan, error See Fewell Dilly, 330 formed. Lesmeister Minn. 27 N.W.2d 95, 103 (Minn.1983). dam N.W.2d Whether (1947). (rea naturally from the ages arose breach probable sonably as a conse foreseeable challenged newspaper arti contemplated by par the quence) were roughly categories. fall into three cles depends fact question which ties a First, the a number of articles were written and the upon nature of the contract sources, the use whose of confidential surrounding its execution. circumstances newsworthy according to identities were Manufacturing v. Union Co. Franklin Despite the newswor Tribune witnesses. Co., 311 Minn. 298- Railroad identities, Pacific thiness these sources’ N.W.2d revealed their identities. Tribune never Second, some articles used confidential why anonymity, he wanted When asked despite sources the fact that the Tribune Cohen testified: did not have on an “exclusive” the informa retribution, I I feared retaliation feared tion from the sources. This evidence was damaging personally, to that me could offered to rebut the claim that Cohen’s my daugh- wife and damage that could identity was he to revealed because failed ters, damage campaign, by that could give Finally, the Tribune an “exclusive.” media, powerful politi- powerful garbage Cohen offered the can editorial cians, revealing the truth. column articles to show cartoon two also He stated: acting that the Tribune was with willful my identity I think that were revealed rights, indifference to his and was continu messenger I of ill tid- because was the ing disparage failing to him while to dis public, my ings employer, promise. its own This evi close breach large, heap press, the world at would even dence of Tribune’s failure act opprobrium my head. handedly claims that was offered to rebut specifi- Even if did not fear Cohen himself publish identity had to Cohen’s Tribune job, Dispatch cally for the of his loss picture. give its readers fair expert journalist editor and an witness both the trial court was well We conclude that confidential sources often testified that determining its in within discretion confidentiality exactly seek newspaper articles were relevant offered they might jobs. are lose their afraid probative prejudicial. more than See expert are or witness testified that editors The Tribune has failed Minn.R.Evid. 403. well of the reasonable should be aware clearly abused that the trial court show consequences, including employ- loss admitting its the articles. discretion ment, if could occur the confidences which argues that the The Tribune also sufficient are revealed. The evidence was argument for was so inflam closing Cohen support finding loss required. We matory that a new trial is reasonably employment was fore- Cohen’s newspa major A focus of the disagree. job loss seeable. Cohen’s therefore is portray pers’ strategy trial was to Cohen general, opposed as to conse- the nature politicker. In as a scurrilous and dishonest quential, recoverable character, light these on Cohen’s attacks contract. ignoble moti newspapers’ comments on the V. unduly prejudicial. vations are not instruc argues gave lengthy curative The Tribune that the trial trial court argu strong admitting designed to neutralize the court erred number Trib tion Fur- all sides. newspaper ments made counsel on une articles. The trial court ther, closing argument purely political at issue was behavior of a on admissible evidence or figure, respondent based reasonable and on the effort of inferences from the drawn evidence. Un- cover occurrence of that conduct. circumstances, der these trial court’s Second, addressing the sacrifice of refusal to order a new in- trial based on freedom, it justified is asserted that this is flammatory arguments was not an abuse by predominant considerations. This claim Connolly of discretion. See v. Nicollet premised on the notion that verbal assur- Hotel, 258 Minn. 104 N.W.2d press ances of reporter uniquely are im- portant, either for respondent the sake of improvidence or as a measure of of the DECISION press justifying the loss of its freedoms. judgment determining The trial court’s again, untenable; arguments Here are newspapers jointly that the are and sever- important conflict with decisions del- $200,000 ally compensatory liable for in imiting the state interest in common law damages as a result of their breaches of claims, stringent on restrictions erred, contract is affirmed. trial court notion of waiver of freedom of the however, failing misrep- to set aside the press. resentation claim because there was no evi- consequence prop- of these mistaken newspapers dence that the made material ositions of law is a decision for sanctions misrepresentations or omissions. Because sync which out of with settled first engaged independent in no principles. authority, No di- tort, judgment awarding the trial court’s by analogy, permits rect or remote damages punitive to Cohen is reversed. publishing political award of part Affirmed in part. and reversed in material, justifies application this as an of state slightly common law not even lim- CRIPPEN, Judge, concurring part, ited deference to the first amendment. dissenting part. any authority, Nor does direct or analo- agree appellants I are entitled to relief gy, permit publishing political sanctions for judgment premised allega- from a on a tort justify premise information and this on the compelled respect tion. Because we are press right publish, that the waived the vital standards press, on freedom of the premise on much less such a waiver judgment respondent’s on contract upon publish occurs assurances not to solic- fundamentally claim is flawed and also informally reporters. ited from media Const, should be reversed. See U.S. particularly, More there are six funda- (enunciating amend. I the freedom of misconceptions mental in the rationale for speech, and expressly prohibiting laws the contract claim. Four are in the effort abridging Const, press); the freedom of the Minn. deny that this encroachment on the first I, (likewise adding art. to the § significant. The amendment is fifth is the guarantee speech for free a declaration enlargement unwarranted of a state inter- liberty press that “the shall forever est in the common of contracts. The law inviolate”). remain wrongful disregard is the sixth for limits Support prem- for the contract claim is on the notion of a freedom waiver. categories argument, ised on two instance, propositions favoring In each misshape both the law of the case. damage prece- award are made without First, it is said that conflict with the first authority dential reference to cases amendment here is unsubstantial or even adequately support not the conten- that do contrary, nonexistent. To the what has tion. happened here involves the exercise of the power punish coercive of the state to implicated. 1. First amendment private press publish. choice of the critical, Making problem Initially, argued it is that there has been still more this case, press freedom in printing story sanction occurs for true no restriction of on inaccurate, supported by any it is not than “neutral enforcement” nothing more authority. trial court concluded law. The of contract was one respondent’s contract claim claim focused The issue on contract This dimension.” “no constitutional with judg- singularly on the exercise editorial disregard for depends on essen- proposition Moreover, appel- suggested by as ment. case, relies on au- and it tial facts of Cowles, grievance respondent lant de- bearing having no the kinds of thorities on veloped before trial court was here. occurring

restrictions choice disclose his name on the but dealing regular con- We are reports other contents breach —the Rather, respondent asks the tract claim. of contract claim was thin cover for much agreement pub- not to courts to enforce an indictment on editorial more intrusive press free- pledge not to exercise lish—a choices. words, respondent In seeks dom. different through When the state determines civil publish the judicial that choice a decree contract, a lawsuits what constitutes when subject to the information is unlawful occurs, special a and which circum- breach money judgment. of a Neither sanction permit disregard promise, stances of the it the promise nor the claim are neutral to the usurps decisionmaking editorial and chills Rather, inescapa- first amendment. both addition, press freedom. In exercise press. bly implicate freedom the regulation inevitably shapes the this deci- proposition for Authorities are cited the promise is appropriate- about the sion when may criminal remedies be that civil and courts, editors, ly It is for not the used. they place even if by the courts applied promises content should decide when on be upon publication the “certain conditions” publication made and to decide when is information. This statement newsworthy So, example, important. for in the context concept having premised is on of law editors, case, judges, of this it is for not for incidentally only do with remedies which whether identification re- determine freedom, on press authorities affect spondent necessary for an accurate subject proposition nearly stand for political on event. report imposition permit direct so bold as to publishing political news penalties for pictured, 408

story. Branzburg Hayes, v. U.S. intrusion intru- See 3. However 682, 2646, 665, 2657, S.Ct. 33 L.Ed.2d sion. (1972)(enforceability of and crimi- civil regulating press Respondent argues that only burdening” “incidentally

nal statutes this the circumstances of case freedom Union, press); Price v. International purposes not frustrate first does (D.C.Conn.1985) F.Supp. 1246-50 ap- them—that enhances but labor-management contract; (commercial accept pellants really the trial court should enforceability of dicta on union trial court judgment, little correction for provision, enabling politi- union thus dues Respondent portrays a good. their own activity; judicial without action cal decision sources, public policy anonymity so employee speech). the content of enlarged press capacity has that sum, suggestion here that Thus, as get disclosures of information. damage press is neutral to freedom award observes, press has histori- respondent is unsound. against right its disclosure cally defended See, e.g., Landmark Commu- of sources. upon process. editorial

2. Intrusion nications, U.S. Virginia, Inc. (1978); see 56 L.Ed.2d also from the 98 S.Ct. To distance case otherwise (1988) (statu- amendment, argued Minn.Stat. 595.021-595.025 it is that trial first § disclosure). Re- compulsory limits on tory not intrude into the judgment does court’s expert opinions spondent produced also only upon rights process, editorial but anonymity con- promise of surrounding promises the violated privileges of an- ethics. journalistic a breach of stitutes onymity. essentially This observation is Undoubtedly, good judgment topic government activity. United press public is matter of serious impor- Snepp, States v. 595 F.2d 930 n. Moreover, certainly tance. it is plausible to (4th Cir.1979). press agencies believe that will generally deplore compulsory disclosure of sources. 5. Contract law versus the first amend- Nevertheless, it must recognized ment. the honor and the press effectiveness of Ultimately, the majority describes the agencies is a matter of preroga- their own manner in which the first tive, amendment is subject to the exchange of implicated by the judgment. trial court

ideas, protected by all the first amendment. The court concludes it has found an “effec- Publishing Tornillo, Miami Herald Co. v. tive publishers. incentive” for U.S. It is con- (not tended (1974) that the trial yet upon L.Ed.2d 730 court's intrusion demonstrated government regulate how justified. can amendment is exercise judgment of editorial control and “consist- argument here to justify limiting guarantees ent with First Amendment of a press freedom premise rests on the free as have evolved to this Minnesota’s contract law is a compelling time.”). agencies government, in- interest such shape as to and restrict con- cluding judiciary, right have neither the Thus, stitutional law. in harmony with the duty nor the to measure or establish the misapplication historic of various state law press. wisdom and honor of the claims, the common law of contracts is given immunity” “talismanic from constitu- 4. Freedom from sanctions publica- for tional limitations. See New York Times tion. Sullivan, 254, 269, Co. v. 376 U.S. 84 S.Ct. Finally, to further attempt imag- 710, 720, 11 (1964). L.Ed.2d 686 There is gulf ine a between this case and the Consti- no authority for position, either in tution, plea is made that at least this terms of the first amendment or otherwise. case prior does not involve restraint. said, It mistakenly, is that the Minnesota may made, While this distinction there is Supreme Court has classified the in state authority whatsoever suggesting cause in terest contract law as compelling. Du minimize, by comparison even prior with luth Lumber Plywood & Develop Delta law, restraint the extraordinary first ment, Inc., 377, (Minn. 281 N.W.2d 380-83 danger amendment in permitting damage 1979) support is cited as for such proposi awards as publication a sanction for on tion. The most that can be said of Delta public issues. Development is that there are some cir contrary, To the according to author- cumstances where the state’s in interest law, itative important declarations of it is may commercial supersede contracts some that the vigorously courts money scrutinize competing (state interests. Id. at 380-83 judgments against and other sanctions interest in an agency’s agreement Indian publish.' Sullivan, choice to See 376 U.S. buy materials from off the reservation 277, at (inhibiting S.Ct. at 724 effect of compels disregard for competing principles awards); damage Philadelphia Newspa- rights on Indian self-government). Del pers, 767, Hepps, 777, Inc. v. 475 U.S. Development ta did not deal with a consti (1986) S.Ct. 89 L.Ed.2d 783 right, tutional much less with freedom of (“chilling” press effect of prove burden to press right or other under the first truth damages). when sued for In addi- Moreover, amendment. requires case tion, as discussed below on the issue of an examination of the circumstances of waiver, appellate a federal court in a suit case, each which must be done here. for has attested that it is “mani- fest,” even where an agreed individual has How is the state’s interest to be evaluat- publish, not to that the correctly? noted, first ed already govern- As permit would not publication restrictions on mental action in the form of an award of political unclassified information on the damages stifles first amendment freedoms. significant competing is the state regu- than How “inhibiting” effect It has a more Sullivan, state interest? There are some identifiable criminal sanctions. lation with 277, supersede at 724. This the freedom of the at S.Ct. concerns that U.S. press Thus, example, freedom un- Sullivan press. restriction of a state in- demonstration Supreme lawful absent progeny, its the United States order.” Smith v. highest terest “of nature and carefully Court enunciated the Co., 97, Daily Publishing 443 U.S. Mail overriding interest extent an state 2667, 2672, 61 L.Ed.2d 399 99 S.Ct. publication protect from of false individuals (1979). Only recently is- information. the Court among several on suecl another decisions examining competing state Before protecting privacy. state interests in interest, recognize necessary it is — B.J.F., U.S. -, Florida Star v. Only scale. weight the other side of the (1989). 105 L.Ed.2d 443 S.Ct. permits extraordinary interest state Star, Florida the court noted various other amendment, limitation of the interests, significant including its in state preeminence the first amendment has such — Id., terest fair criminal trials. U.S. suppression abridg- “The our law. - n. 5, - n. 6, at 109 S.Ct. at by a publicity afforded free of the n. 2608 n. 6. regarded press otherwise than cannot be Grosjean v. Ameri- grave concern.” case, respondent In this not act as a did Co., can Press U.S. figure private political operative as a but The freedom 80 L.Ed. public places, dealing purely political with a nothing “supreme- less than publications appel- topic. disputed NAACP v. ly precious” society. in our certainly public on of lants were “matters Button, 433, 328, 415, 83 S.Ct. U.S. 371 Thornhill, 101, concern.” 310 at 60 U.S. 338, (1963). The Constitu- 9 L.Ed.2d privacy at is in- S.Ct. 744. No interest press among from highlights tion freedom volved; contrast, topic requires in our speech; singularly, state forms of free urgent respect for most first amendment press promises that freedom constitution appropriate political freedom that is for inviolate,” remain untouched. will “forever Co., campaign activity. Monitor Patriot Const, I, Minn. art. 3.§ 272, 401 U.S. at 91 S.Ct. at 625. addition, is a matter of it settled law Further, respondent’s prem- claim is not very pinna- here that the situation is at published on the notion of falsehood. ised press The top- cle of concern for freedom. information, true and dealing are We public respondent’s ic of conduct is respondent. that has hurt it is the truth Supreme political matter which the Court Louisiana, 64, v. Garrison 379 U.S. See finds the heart the first amend- “at of 215, (1964) 209, 74, 13 L.Ed.2d 125 85 S.Ct. National First Bank protection.” ment’s (“Truth may subject be the of either not Bellotti, 776, 765, Boston v. 435 U.S. of or criminal sanctions where discussion civil 1415, (1978) 1407, (cit- S.Ct. 55 L.Ed.2d concerned.”). public affairs is Alabama, v. 88, Thornhill ing 310 U.S. the state interest reflected What then is (1940)). L.Ed. 1093 60 S.Ct. Respondent judgment? trial court this Speech public high- rests "on the on issues he given anonymity was assurances rung hierachy est of first amend- may on He have trusted acted them. Brown, Carey ment U.S. values.” said his con- nothing would be about more 65 L.Ed.2d respon- bargain The was broken and duct. (1980). particular, To be even more “it Still, damages. respondent dent suffered hardly can doubted that the constitution- be uphold an interest as one to identifies the most guarantee has its ur- al fullest “ordinary arrangement.” commercial gent application precisely to conduct in the law of is common Monitor Pa- interest reflected campaigns public for office.” Incidentally, great portion 265, 272, 91 Roy, triot contracts. Co. v. 401 U.S. S.Ct. notion given is over to the L.Ed.2d this common law equitable principles preclude agreements me- against contracts void as application chanical of contract doctrine. public policy. public policy this in- law, is first stance and this perform state’s interest to enforce approach requires alternative to the issue contracts, ance the circumstances of comparison the same competing inter- case, mostly Cf., e.g., common. Del taken, Whichever approach ests. (in Development, 281 at ta N.W.2d 380-83 is the result same. The contract claim predominates statutory terest over certain judgment should have been tried and a interests, treaty only and then in limited claim on the should not be affirmed. circumstances). expansive if Even viewed ly, it does not prescribed highest rise to the permits disregard

order which of the first 6. First amendment not waived. amendment. Respondent newspa- contends that The events here singularly by are colored pers waived constitutional freedoms political scheme political to broadcast a agreeing Here, expose his conduct. at attack but the same time to evade re- respondent puts argument his in the form sponsibility Respondent for the act. addressed Sullivan: whether operative purpose. the chosen for that He anything has done to forfeit freedom its into the went forums of discussion Sullivan, under the Constitution. 376 U.S. information, prom- volunteer elicit 271, 84 at S.Ct. at 723. activity that his unseemly ises would be argument provides The waiver a new up. ingredients covered He assembled to examine framework this first amend- predicament: publish an editorial issue, First, but is twice mistaken. respondent’s anonymous information as premised waiver contention is on a con- petty; bury would report be the informa- already tract claim defective for of an want partial; he tion delivered would be and to adequate state protection. interest for its imprecisely attribute disclosure of the in- Second, respondent’s argument waiver campaign to a formation candidate’s would exposes further obstacles to his contract illegitimate. accomplish To his ends stringent case. There are conditions for respondent approach chose not to the edi- of first waiver amendment freedoms. expected publi- tors who would be to make by view of urged respon- broad waiver decisions. He cation chose not to make his adopted by requires dent and this court setting. Instead, in a proposal deliberative disregard for the law of the on these ease approached beat, reporters he their on ex- conditions. might he pecting readily arouse them political desire for nuggets some news. Singularly, the waiver contention here proposition rests .on first Whether or not this course of conduct may amendment be waived it is clear agreement when produced according to the done knowingly voluntarily, one has so law, agency niceties of contract and a of law agreement matter attributed to Telecom- purported enforcement of the Erie munications, Erie, Inc. v. 853 highest City a matter of state of the F.2d not interest 1084, (3rd Cir.1988). Moreover, description respondent’s 1096 This order. regard incomplete, of the law is as to attempt concealment did not false even (no conduct, language of Erie. private information or his com- Id. at 1094 such absent compelling waiver “clear and cir- plaint involves a state interest civil sanc- cumstances.”). which is by tions unadorned additional steps against press. cause for coercive The courts scrutinize the claim of waiver agree- need not decide some We whether vigor clearly with more than al- evident might on the publication ments content of ready state in- observed assessment of here, be enforceable. the circumstances “[Cjourts indulge every terests. reason- prevail. Constitution should presumption against of any able waiver” might prefer wording right. this rationale constitutional Aetna Some fundamental 389, contract claims in of the v. 301 U.S. Kennedy, on terms law of Insurance Co. 267 809, (1937) agent’s agreement to material for 393, 811, submit 81 L.Ed. 1177 However, Easton, 408, 412, pre-publication the hold- review. 106 U.S. (citing Hodges v. ing rights on waiver of or (1882)). was not based If of first 27 169 waiver L.Ed. all, regular agreement, a but on the effects of occur at it press rights can amendment intelligence agent’s relationship trust compelling” only in “clear and will arise information, having classified access to Publishing Co. v. circumstances. Curtis agreement pre-publication that his such 1975, Butts, 388 U.S. S.Ct. agreement. a trust clearance was 1986, (1967). If a waiver 18 L.Ed.2d 1094 identified, narrowly it con “must be importantly, Snepp, More which re- the policies to effectuate strued award, a damage viewed trial court stands Polymer First Amendment.” National very for a different conclusion of law. In Products, Corp., v. Borg-Warner Inc. rights and other decisions on the (6th Cir.1981). F.2d agents, prior dealing former CIA both with claims, damage has restraint it been constitute, here not The circumstances do recognized that because the first amend- clearly compellingly, case where first agreements agents against dis- freedom has renounced. amendment been “manifestly” are to closure unenforceable reporters Respondent promises solicited agreements the extent those address non- interests, polit- to personal to his hide serve information. classified See United States believe to ical conduct that others would (not- Snepp, 595 F.2d at n. sought nor shabby. He neither obtained withstanding Snepp’s agreement to never pledge anonymity media deliberative divulge “any concerning information intelli- Finally, respondent wanted editors. what gence pub- that has been made CIA not discussed, viz., an editorial decision was not CIA,” “manifestly lic the first amend- repudiate responsibility to the fundamental permit ment would not the CIA to withhold truthfully public fairly inform publication except respect consent issue is political campaign conduct. The information not in the classified these occurred under whether waiver domain”); Snepp, 444 at U.S. purposes. for civil law We circumstances (twice noting at without cor- S.Ct. liberty disregard are at the constitu- opinion rection the Fourth Circuit tional conditions on waiver. Snepp right pub- had a first amendment publication of true facts on an Given information). lish unclassified United important political campaign, event Marchetti, F.2d States v. compelling up- here is for clear and case (4th Cir.1972)(as to unclassified infor- regular holding press On both a freedom. mation, precludes dis- analysis, approach contract and waiver “contractu- closure restrictions established respondent’s of contract claim was breach otherwise;” by signing secrecy ally or constitutionally and should not defective agreement, Marchetti “did not surrender have tried. been right of free his First Amendment speech.”). analysis reveals the waiver con- Further restricted, respon-

cept even more and is Why might inapplicable be so waiver surely claim more defeated. dent’s contract amendment, at first least the context of the first explain proposition, To it must this political on affairs? as to true information precedent no for a that there is observed suggest I disfavor for such a waiver that part finding by agreement of on the people waiver the interest of the harmonizes with press, and more than mixed indi- of the no of generally, discussed the conclusion regarding by agreement for cations waiver opinion, for the unfettered flow this there, speech. Respondent cites political as observed public information. As authority per everyone's right, on the the deci- press issue curiam the is freedom of Supreme pub- belonging sion Court in to the editor United States alone States, to the 444 U.S. can the law attribute Snepp v. United lisher. How right which is Snepp, press capacity In to waive S.Ct. L.Ed.2d a former CIA not its own? court found enforceable

Clearly, there general is a interest applied, Correctly the first amendment unique regarding press kind guarantees freedom on press special has im political facts. munity willing We need not decide wheth- from officials to restrict its precludes policy er this waiver of the free- freedom. Neither the courts nor other agencies government such dom in all cases. At least in can deal with the publishing here it should be way circumstances held that conduct of in the same they there was waiver and there no handle other conduct with similar charac Why First, enforceable contract. teristics. must this be so? although press often pro cannot claim weak, tection afforded to the it is likely as Acquisition 7. of information. target regulation as the weakest citizen respondent Finally, states additional regulator, because it is the critic of the argument needing only brief attention. adversary many for designs public fig Addressing both his tort his contract upheld, ures. Properly first amend claims, respondent suggests appel- addition, ment defeats this risk. In wrongful lants’ acquisi- conduct constitutes singularly amendment is not pro for Although argu- tion of information. tecting agencies, press generally but “to may on bearing have a claim of tor- prohibit government limiting from misconduct, perceive I tious do not its rele- stock of information which from members vance to the contract issue. There was no public may tti, draw.” Bello wrongful act of appellants connection U.S. at 98 S.Ct. at It high 1419. is the reporters with the conduct of their or in the people against government interest of the acquisition peddled by of information re- regulation, not alone the interest of the spondent. Respondent’s grievance is with speaker publisher that is threatened publish, choice the editorial which invites judicial proceedings on common law claims. acquisition attention the earlier events Speech on affairs “more than self- only as insofar bear the flawed expression, it is the of self-govern essence claims of contract or waiver of first Garrison, ment.” at U.S. rights. at point, 216. Even more to the demon strating everyone an interest shares with press: private 8. Conclusion. A press free great stands as one of the damages directly here award interpreters government between the substantially implicates the first amend- people. and the it To allow to be fet- ment, vitality and the the freedom of tered is to fetter ourselves.

press predominates compet- face of Grosjean, 297 U.S. at 56 S.Ct. at 449. ing considerations on contract law and sum, publication conduct of the rights. judgment damages waiver of A governed by cannot be the courts in erroneously in this case restricts a funda- the same manner as other conduct mental freedom we are hold inviolate. judged. The award of here defies misconception poses Each discussed here principles these very conflicts with the danger, the same a construction of consti- special essence of a press freedom of the action, judicial tutional law which licenses under the Constitution. law, employing common to decide join I majority respondent’s tort reports just whether are and to exact claim, I respectfully but dissent on the publication penalty found to be portion judg- choice to affirm the objectionable. fundamentally This is offen- premised on a contract claim. “Truth sive to the amendment. understanding,” said Milton Parliament 1644, “are not such wares as to be

monopolized tickets and traded Milton, statutes and standards.” J. Areo- pagitia, Portable Milton

Case Details

Case Name: Cohen v. Cowles Media Co.

Court Name: Court of Appeals of Minnesota

Date Published: Sep 5, 1989

Citation: 445 N.W.2d 248

Docket Number: C8-88-2631, C0-88-2672

Court Abbreviation: Minn. Ct. App.