Thou shalt not break thy promise

Supreme Court rules on betraying sources’ anonymity

The Cohen v. Cowles suit arose when editors at two Minnesota newspapers overruled their reporters’ guarantee of anonymity to a source.

By Mitchell Zuckoff

Mitchell Zuckoff is a staff writer for The Boston Globe.

Author bio information is from the time of article submission and may not be current.

Source: FineLine: The Newsletter On Journalism Ethics, vol. 3, no. 7 (July/August 1991), pp. 2, 4.

This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.

 

The question before us is whether the First Amendment prohibits a plaintiff from recovering damages . . . for a newspaper’s breach of confidentiality . . . We hold that it does not.

Cohen v. Cowles Media

When the Supreme Court ruled in June that journalists’ promises to sources can be legally binding, Al Larkin felt compelled to act.

As managing editor for administration at The Boston Globe, Larkin posted a memo restating the paper’s policy of protecting the identity of confidential sources. He then cautioned reporters that “this decision applies to almost any agreement reached with a source, not just an agreement not to reveal their identity. It is not a good idea to make promises to sources.”

Of course that’s true, but it’s sad that it had to be written in this context and that what should have been a call for higher professional and ethical standards became a warning about legal repercussions.

But that’s just one of the unhappy legacies of Cohen v. Cowles, a case that’s bad news for journalists — and not only because it was arguably the worst example for such a test.

The case was spawned by the decision of two Minnesota newspapers to identify a source who’d been promised anonymity. The justification by the St. Paul Pioneer Press Dispatch and Minneapolis Star Tribune: that the campaign smears dished out by political consultant Dan Cohen were less newsworthy than the fact that he was the source of the dirt.

What the Minnesota editors ignored was that most journalists have been willing to serve time and pay fines rather than reveal the identity of a source promised confidentiality. It’s one of the few subjects on which virtually all journalists agree, and it’s been that way from the beginning of modern journalism.

Courts have recognized journalists’ belief that reporter-source agreements are inviolable since as far back as 1878, when a reporter sued a competing paper for libel for printing an unfounded story that he’d broken a promise of confidentiality. The Michigan Supreme Court backed his claim that, just as calling a woman a harlot is libel unless it’s true, it is inherently defamatory to say a reporter reveals sources.

In the relatively rare cases when a source is burned, the rule is that heavy counterweights are necessary to justify it. A survey I conducted while Cohen was pending showed that journalists usually reveal sources only as a last resort, and only when faced with an ethically significant conflict (such as to save a life or prevent a serious crime) — not for what might be called the Minnesota standard: because the source’s identity is newsworthy.

The rejection of that justification was shown by the number of media organizations that declined to join the friend-of-the-court brief filed in Cohen.

While some heavy hitters did show up, notably The New York Times, the lack of unanimity on what was supposed to be an important First

Amendment test revealed the feeling that the case had a noxious odor.

But now that it’s over, journalists have to live with the fallout from the Supreme Court’s decision.

The ruling likely will prompt more and different kinds of suits by aggrieved sources. Some, like Cohen, will file breach-of-promise suits for being identified. But others will see it as an opportunity to sue reporters for all sorts of other reasons.

Since all promises are covered, sources might claim reporters who’d promised to show them in a particular light failed to do so. That was the basis for an Idaho suit by a woman who said a reporter falsely promised to present her favorably in a story about the homeless. That suit was dismissed, but more are sure to follow. And since deals with sources are almost always verbal, juries might be torn over whom to believe, the journalist or the source.

Other suits are likely to result from the court’s rejection of the newspapers’ key argument, that the First Amendment gives the press a near-absolute right to publish truthful information about newsworthy events. Cohen was a public figure and the source of the information, just as the papers said, but that wasn’t enough to prevent this further erosion of press freedoms.

In addition, the case may weaken campaigns for stronger shield laws. Some journalists interpreted the Cohen ruling as tantamount to a national shield law because, they reasoned, by rejecting the Minnesota papers’ actions, the court was in effect blessing the sanctity of reporter-source agreements. But the door doesn’t swing both ways. The court simply repeated its longstanding position that the First Amendment doesn’t make reporters immune from generally applicable state laws, such as those requiring people to keep their promises. The justices offered no new legal protections for reporters from threats or sanctions by judges.

Some journalists are concerned that Cohen might be a double bind: If they refuse to reveal a source, they may face sanctions from a judge; but if they do divulge it, they may face a law suit. Not to worry. If reporters refuse court orders, they face the standard punishment; if they comply, they’re protected because the breach was caused by a judge’s order.

That leaves only situations where journalists decide on their own to burn sources. If there’s a valid reason, an ethical journalist’s conscience should be clear. And if a source does sue, even an anti-media jury could see the wisdom of revealing a source if, say, a life was at stake. Journalists who choose to betray sources for lousy reasons, though, might join the Minnesota papers in the “got what they deserved” category.

There are two ways to look at Cohen’s likely effect on people who truly need a cloak of confidentiality. On one hand, they might be afraid they’ll become the next Dan Cohen, and even a successful civil suit isn’t worth the pain of public exposure. But other sources might be emboldened now that reporters can say: “I know you’re worried, but the Supreme Court says I have to keep my promise.”

The simplest way of minimizing the problems Cohen may provoke: Reporters must take meticulous care every time they make promises to sources.

And they must be ready to keep those promises in all but the most compelling circumstances. If Cohen accomplishes that, the dark cloud will have a silver lining.

 

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