There is a problem with the U.S. Supreme Court`s recent ruling that the Constitution permits the legal enforcement of promises by news organizations that they will protect the anonymity of sources.
It isn`t so much the court`s interpretation of the Constitution, which is narrow but not shocking. The real problem is that the Supreme Court dealt with the case at all. The matter should have been decided on traditional principles of contract law, in which the Supreme Court has no general role.
The case involved a suit by Dan Cohen, who was fired from his public relations job with a Minnesota gubernatorial candidate after two newspapers published accounts of Cohen`s leaking to them potentially embarrassing information about an opposition candidate. Reporters had promised Cohen that he wouldn`t be named, but their editors, deciding the more appropriate political story was in his ”dirty tricks,” overruled the reporters and identified him.
Cohen sued for damages, alleging fraudulent representation and breach of contract. He was awarded $200,000 by lower courts on the breach-of-contract allegation. That was tossed out by the state`s supreme court, which sustained the lower court ruling that there was no fraud and went on to hold that since neither the reporters nor the source had any reason to expect they were making a contract in their interaction, there was no contract.
So far so good. And there`s no constitutional issue there for the U.S. Supreme Court.
But the newspapers` lawyers fought their battle principally on 1st Amendment grounds, rather than attacking the notion of a contract. And the Minnesota justices addressed 1st Amendment values in considering a question raised about a legal doctrine called ”promissory estoppel,” in which courts enforce otherwise unenforceable promises in the interest of fairness and the public interest. The Minnesota Supreme Court`s error was to express its argument on this point in terms of 1st Amendment law; that propelled the case into the highest court of the land.
The Minnesota court could and should have come to the same conclusion without regard to constitutional law, making the point that public interest is served by providing the maximum possible leeway for public discussion of election campaigns. It could have gone on to point out that the relationship between news organizations and news sources has always been informal, and that there is no compelling public interest in suddenly formalizing the relationship through the threat of lawsuit.
If it had done this-and it still can when it reconsiders the case-the U.S. Supreme Court would have had no reason to object, and the public interest would have been well served.
The lesson of this case for anybody interested in robust protection of free expression is simple: Go to the mat for the 1st Amendment whenever it is clearly threatened, but don`t use it as a crutch when other defenses are more than adequate.
