Cohen v. Cowles Media Company, No. 90-634

• Court: United States Supreme Court
• Writing for the Court: WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and SOUTER, JJ., joined. SOUTER
• Citation: 115 L.Ed.2d 586,501 U.S. 663,111 S.Ct. 2513
• Parties: Dan COHEN, Petitioner v. COWLES MEDIA COMPANY, dba Minneapolis Star and Tribune Company, et al
• Docket Number: No. 90-634
• Decision Date: 24 June 1991

501 U.S. 663 111 S.Ct. 2513 115 L.Ed.2d 586 Dan COHEN, Petitioner

v.

COWLES MEDIA COMPANY, dba Minneapolis Star and Tribune Company, et al.

No. 90-634. Argued March 27, 1991. Decided June 24, 1991. Syllabus

During the 1982 Minnesota gubernatorial race, petitioner Cohen, who was associated with one party's campaign, gave court records concerning another party's candidate for Lieutenant Governor to respondent publishers' newspapers after receiving a promise of confidentiality from their reporters. Nonetheless, the papers identified him in their stories, and he was fired from his job. He filed suit against respondents in state court, alleging, among other things, a breach of contract. The court rejected respondents' argument that the First Amendment barred the suit, and a jury awarded him, inter alia, compensatory damages. The State Court of Appeals affirmed, but the State Supreme Court reversed, holding that a contract cause of action was inappropriate. It then went on to address the question whether Cohen could recover under state law on a promissory estoppel theory even though that issue was never tried to a jury, nor briefed nor argued by the parties, concluding that enforcement under such a theory would violate respondents' First Amendment rights.

Held:

1. This Court has jurisdiction. Respondents' contention that the case should be dismissed because the promissory estoppel theory was not argued or presented in the courts below and because the State Supreme Court's decision rests entirely on a state-law interpretation is rejected. It is irrelevant to this Court's jurisdiction whether a party raised below and argued a federal-law issue that the state supreme court actually considered and decided. Orr v. Orr, 440 U.S. 268, 274-275, 99 S.Ct. 1102, 1109, 59 L.Ed.2d 306. Moreover, the Minnesota Supreme Court made clear that its holding rested on federal law, and respondents have defended against this suit all along by arguing that the First Amendment barred the enforcement of the reporters' promises. Pp. 667-668.

2. The First Amendment does not bar a promissory estoppel cause of action against respondents. Such a cause of action, although private, involves state action within the meaning of the Fourteenth Amendment and therefore triggers the First Amendment's protections, since promissory estoppel is a state-law doctrine creating legal obligations never explicitly assumed by the parties that are enforceable through the Minnesota courts' official power. Cf., e.g., New York Times Co. v. Sullivan,

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376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686. However, the doctrine is a law of general applicability that does not target or single out the press, but rather is applicable to all Minnesota citizens' daily transactions. Thus, the First Amendment does not require that its enforcement against the press be subject to stricter scrutiny than would be applied to enforcement against others, cf. Associated Press v. NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 655-656, 81 L.Ed. 953, even if the payment is characterized as compensatory damages. Nor does that Amendment grant the press protection from any law which in any fashion or to any degree limits or restricts its right to report truthful information. The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443, distinguished. Moreover, Cohen sought damages for a breach of promise that caused him to lose his job and lowered his earning capacity, and did not attempt to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, distinguished. Any resulting inhibition on truthful reporting is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law requiring them to keep certain promises. Pp. 668-672.

3. Cohen's request that his compensatory damages award be reinstated is rejected. The issues whether his verdict should be upheld on the ground that a promissory estoppel claim had been established under state law and whether the State Constitution may be construed to shield the press from an action such as this one are matters for the State Supreme Court to address and resolve in the first instance. P. 672.

457 N.W.2d 199, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and SOUTER, JJ., joined. SOUTER, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined.

Elliot C. Rothenberg, Minneapolis, Minn., for petitioner.

John D. French, Minneapolis, Minn., for respondents.

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Justice WHITE 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

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for $6.00 worth of sewing materials. The incident apparently occurred at a time during which Johnson was emotionally distraught, and the conviction was later vacated.

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. 445 N.W.2d 248, 260 (Minn.App.1989). However, the court upheld the finding of liability for breach of contract and the $200,000 compensatory damage award. Id., at 262.

A divided Minnesota Supreme Court reversed the compensatory damages award. 457 N.W.2d 199 (Minn.1990). After affirming the Court of Appeals' determination that Cohen had not established a claim for fraudulent misrepresentation, the court considered his breach of contract claim and concluded that "a contract cause of action is inappropriate for these particular circumstances." Id., at 203. The court then went on to address the question whether Cohen could establish a cause of action under Minnesota law on a promissory estoppel theory. Apparently, a promissory estoppel theory was never tried to the jury, nor briefed nor argued by

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the parties; it first arose during oral argument in the Minnesota Supreme Court when one of the justices asked a question about equitable estoppel. See App. 38.

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 that "[u]nder 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." 457 N.W.2d, at 205. After a brief discussion, the court concluded that "in this case enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants' First Amendment rights." Ibid.

We granted certiorari to consider the First Amendment implications of this case. 498 U.S. ----, 111 S.Ct. 578, 112 L.Ed.2d 583 (1990).

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...