Cohen v. Cowles Media Co.
501 U.S. 663 (1991)

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U.S. Supreme Court

Cohen v. Cowles Media Co., 501 U.S. 663 (1991)

Cohen v. Cowles Media Company

No. 90-634

Argued March 27, 1991

Decided June 24, 1991

501 U.S. 663


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.


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, 440 U. S. 274-275. 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. 501 U. S. 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., 376 U. S. v. Sullivan,

Page 501 U. S. 664

376 U. S. 254, 376 U. S. 265. 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, 301 U. S. 132-133, 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, 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, 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. 501 U. S. 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. Pp. 501 U. S. 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, post, p. 501 U. S. 672. SOUTER, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, post, p. 501 U. S. 676.

Page 501 U. S. 665

Primary Holding

Generally applicable laws that happen to affect the press are not unconstitutional under the First Amendment.


Dan Cohen offered to give reporters at the St. Paul Pioneer Press Dispatch and the Minneapolis Star and Tribune documents regarding a candidate in an upcoming election. Cohen was interested in disclosing these documents because of his position in the Wheelock Whitney Independent-Republican campaign for Minnesota governor. Once he received an assurance that his identity would not be disclosed, Cohen provided two public court records concerning the Democratic-Farmer-Labor candidate for Lieutenant Governor. The editors of both newspapers then decided after internal discussions to break their promise to Cohen and publish his name in their stories on the candidate. Cohen brought a promissory estoppel action against the two newspapers.



  • Byron Raymond White (Author)
  • William Hubbs Rehnquist
  • John Paul Stevens
  • Antonin Scalia
  • Anthony M. Kennedy

The press is not greatly affected in its ability to investigate and report the news by laws that have general application. The promissory estoppel claim should not be dismissed on First Amendment grounds.


  • David H. Souter (Author)
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Sandra Day O'Connor

The importance of assuring unrestricted publication of information outweighs the state interest in enforcing a promise of confidentiality by a newspaper to a source.


  • Harry Andrew Blackmun (Author)
  • David H. Souter
  • Thurgood Marshall

Case Commentary

In evaluating whether the contract was binding, this decision used a subjective standard that considered the actual intent of the parties as well as an objective standard that considered whether the typical reporter and source would have seen the agreement as binding. Since they generally would not, and since it was made in a non-commercial setting, it was found to be unenforceable.

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