Cohen v. Cowles Media Co.

• Decision Date: 05 September 1989
• Docket Number: Nos. C8-88-2631,C0-88-2672,s. C8-88-2631
• Citation: 445 N.W.2d 248
• Parties: 16 Media L. Rep. 2209 Dan COHEN, Respondent (C8-88-2631), Respondent (C0-88-2672), v. COWLES MEDIA COMPANY, d/b/a Minneapolis Star and Tribune Company, Appellant (C8-88-2631), Defendant (C0-88-2672), Northwest Publications, Inc., Defendant (C8-88-2631), Appellant (C0-88-2672).
• Court: Minnesota Court of Appeals

Page 248

445 N.W.2d 248

16 Media L. Rep. 2209

Dan COHEN, Respondent (C8-88-2631), Respondent (C0-88-2672), v. COWLES MEDIA COMPANY, d/b/a Minneapolis Star and Tribune Company, Appellant (C8-88-2631), Defendant (C0-88-2672) Northwest Publications, Inc., Defendant (C8-88-2631) Appellant (C0-88-2672).

Nos. C8-88-2631, C0-88-2672.

Court of Appeals of Minnesota.

Sept. 5, 1989.

Syllabus by the Court

The first amendment does not bar a contract action by a confidential source against newspapers for publication of the source's name. While the breach of contract claim is supported by the record, the source's claims of misrepresentation and punitive damages are not appropriate because the newspapers' promises of confidentiality contained no material misrepresentations or omissions.

Elliot C. Rothenberg, Minneapolis, for Dan Cohen.

James Fitzmaurice, John Borger, Andrew S. Dunne, Faegre & Benson, Patricia A. Longstaff (Norton L. Armour, Cowles Media Co., of counsel), Minneapolis, for Cowles Media Co., d/b/a Minneapolis Star and Tribune Co.

Paul R. Hannah, St. Paul (Richard J. Ovelmen, Landon K. Clayman, Baker & McKenzie, Miami, Fla., of counsel), for Northwest Publications, Inc.

Heard, considered and decided by SHORT, P.J., and CRIPPEN and SCHULTZ, ^* JJ.

OPINION

SHORT, Judge.

Cowles Media Company, d/b/a Minneapolis Star and Tribune (Tribune) and Northwest Publications, Inc. (Dispatch), appeal the trial court's judgment awarding Cohen $200,000 in compensatory damages and $500,000 in punitive damages. This action arises out of the newspapers' publication of Cohen's name after reporters employed by the newspapers had promised Cohen that his name would not be published. The trial court concluded that the first amendment did not bar Cohen's breach of contract and misrepresentation claims and submitted those claims to the jury. The jury returned a verdict in favor of Cohen. The trial court denied the newspapers' alternative motions for judgment notwithstanding the verdict and a new trial. On appeal, the newspapers argue that the trial court erred in (1) ignoring the protection afforded the press by the first amendment, (2) instructing the jury with respect to Cohen's contract claim, (3) submitting the issue of fraud to the jury, (4) submitting the issue of punitive damages to the jury, and (5) admitting irrelevant and prejudicial evidence regarding other Tribune publications. We affirm the judgment on the breach of contract claim, but reverse as to the claims for misrepresentation and punitive damages.

FACTS

In the fall of 1983, respondent Dan Cohen was the director of public relations for an advertising agency. That agency was handling the advertising for the campaign of Wheelock Whitney, the Independent Republican (IR) gubernatorial candidate. Cohen was a long-time and well-known IR supporter. One week before the gubernatorial elections, Gary Flakne, a former IR legislator and county attorney, unearthed documents which demonstrated that the Democratic-Farmer-Labor (DFL) candidate for lieutenant governor, Marlene Johnson, had been arrested in 1969 for unlawful assembly (that charge was later dropped) and arrested and convicted of petty theft in 1970 (that conviction was vacated in 1971). Flakne scheduled a meeting with several IR supporters for October 27 to discuss release of these documents to the media. Cohen attended this meeting.

At the meeting, the group decided that Cohen should be the person to release the documents because he had the best rapport with the local media. The group further discussed and agreed that Cohen should retain anonymity in releasing the information. Cohen immediately contacted four journalists: Lori Sturdevant of the Tribune; Bill Salisbury of the Dispatch; Gerry Nelson of the Associated Press; and David Nimmer of WCCO Television. He reached all but Nimmer by telephone and said:

I have some material which may or may not relate to the upcoming statewide election. And assuming that we can reach an agreement as to the basis on which I would provide this material to you, I will provide it.

All three reporters agreed to meet with him.

Later that morning, Cohen met separately with Sturdevant and Salisbury in the State Capitol building news office. He made the following proposal to each reporter.

I have some documents which may or may not relate to a candidate in the upcoming election, and if you will give me a promise of confidentiality, that is that I will be treated as an anonymous source, that my name will not appear in any material in connection with this, and that you will also agree that you're not going to pursue with me a question of who my source is, then I will furnish you with the documents.

Sturdevant promptly and unequivocally agreed to Cohen's proposal. Cohen then gave her copies of the documents, and she allegedly said, "This is the sort of thing that I'd like to have you bring by again if you ever have anything like it." Sturdevant then asked Cohen if she had this information on an exclusive basis. Cohen said "No." Sturdevant did not protest or express any dissatisfaction with this nonexclusive arrangement.

Salisbury also agreed immediately to Cohen's proposal regarding anonymity. After reviewing the papers Cohen had given him, Salisbury described them as "political dynamite." The issue of exclusivity was never discussed between Cohen and Salisbury.

Cohen then met separately with Nelson and Nimmer. The same proposal was made to each reporter and was accepted by each. After securing the promise of confidentiality, Cohen delivered the documents.

Thereafter, Cohen returned to work and informed his supervisor that he had supplied the documents to the media. Cohen testified that his supervisor had no reaction as to his disclosure. The supervisor, however, testified at trial that he was upset by what he believed were Cohen's unscrupulous practices.

Sturdevant immediately reported the information she had received from Cohen to her supervisor. The Tribune editors assigned four or five reporters to follow up on the story and to contact members of the two gubernatorial campaigns. A reporter, who was directed to verify the authenticity of the court records, discovered Gary Flakne's name on the list of persons having recently reviewed the records. The reporter contacted Flakne and asked Flakne for whom he had obtained those documents. Flakne told the reporter that he had obtained the documents for Cohen.

The Tribune editor who had the ultimate say in whether to run the story convened a "huddle" sometime around 3:00 p.m. to discuss the handling of the information. That group decided that if the Tribune did not run the story, the paper could be accused of suppressing information damaging to the DFL party. They also discussed simply publishing the information on the arrest and conviction and honoring the promise to Cohen. The group considered it unsatisfactory to describe the source as a Whitney supporter, a Whitney campaign member, or a prominent Independent Republican. The Tribune had never before dishonored a reporter-source agreement.

Sturdevant, who was not a part of the "huddle" and had no other input into whether the story was reported, was asked by her editors to see whether Cohen would release the Tribune from its promise of anonymity. Sturdevant expressed her adamant objection to dishonoring the promise to Cohen and she demanded that her name not appear on the article should it be published. She nevertheless agreed to write the article and to ask Cohen to release the Tribune from its promise. She telephoned Cohen two or three times, but each time Cohen refused to agree to have his name published. Finally, the Tribune decided to run the story disclosing Cohen's identity. Sturdevant then contacted Cohen to inform him of the situation and he said if his name was to be published, he wanted to make the following statement:

The voters of this state are entitled to know that kind of information. Every day Perpich and Johnson failed to reveal it to them, they were living a lie.

On October 28, 1982, the Tribune ran an article appearing on the bottom half of the front page, entitled "Marlene Johnson Arrests Disclosed by Whitney Ally." Pursuant to Sturdevant's demand, the article was attributed to "Staff Writer." The article disclosed Johnson's arrests and conviction, and named Cohen as the source of the information. The article also revealed that Cohen was employed by the agency handling the advertising for the IR gubernatorial campaign. The article did not mention Sturdevant's promise of anonymity to Cohen.

In contrast to the manner in which the Tribune handled the matter, the Dispatch editors did not engage in involved deliberations before deciding to disclose Cohen's identity. Salisbury also objected to dishonoring his promise to Cohen. However, he did not object to his name appearing on the article. The Dispatch ran an article similar to the Tribune's in both Dispatch editions on October 28. The articles appeared in the local news sections, disclosed the convictions and arrests, and identified Cohen as the source. This occasion was the first time that the Dispatch had dishonored a reporter's promise to keep a source confidential. While the articles stated that Cohen asked that his name not be used, they failed to disclose that a Dispatch reporter had promised to keep Cohen's name confidential. Unlike the Tribune article, however, the Dispatch articles did not mention the name of Cohen's employer.

The Associated Press honored its reporter's promise to Cohen by stating that court documents relating to the arrests and conviction "were slipped to reporters." WCCO-TV also honored its reporter's promise by deciding not to broadcast the story at all.

Later in the day on October 28, after learning that Cohen's name and employment had been published in connection with the story, Cohen's employer confronted him and a heated discussion ensued. According to Cohen, that...