Promises to Keep:
When Publisher-Source Agreements Trump First Amendment Protections
Morgan David Arant, Jr.
Department of Journalism
University of Memphis
Submitted to the Law Division
Washington, D.C., August 1995
Direct inquiries to:
Department of Journalism
University of Memphis
Meeman Building Room 300
Memphis, TN 38152
Connie Chung: Mrs. Gingrich, what has Newt told you about President Clinton?
Kathleen Gingrich: Nothing and I can't tell you what he said about Hillary.
Chung: You can't.
Gingrich: I can't.
Chung: Why don't you just whisper it to me, just between you and me.
Gingrich: 'She's a bitch.' About the only thing he ever said about her. 
Journalists are often faced with situations in which they have to make
promises to sources to get information. Reporters are given
interviews with government officials for background. They receive
information with the understanding that they cannot identify or
source. The Washington Post broke the story about the Nixon
administration's involvement in the Watergate story through the use of an
anonymous source. Government officials have used off-the-record
conversations with reporters to float trial balloons to see if possible
policy options get shot down.
However, publishers do not always keep their promises to their sources.
Publishers claiming a First Amendment right to publish free from
governmental constraint have had constitutional protection for
trumped in the courts by written and oral promises to refrain
publication. The U.S. government has gained favorable rulings in the
federal courts against individuals who had signed secrecy agreements
promising not to publish certain information. Recently private
have recovered damages when journalists broke agreements not to
1991, political publicist Dan Cohen received a favorable ruling in the
U.S. Supreme Court in his effort to recover damages from the media
they broke a promise of confidentiality. This debate about
damages for broken promises to sources was reignited by the January
broadcast of an interview in which a CBS television news anchor
broke a promise to keep information confidential. Connie Chung's
her promise to the mother of Newt Gingrich, the Speaker of the
of Representatives, raises again the question of whether a
not to publish information revealed by a source is a binding
the breach of which might result in a successful legal action by
plaintiff. Could Kathleen Gingrich successfully sue Chung for not
"just between you and me" Gingrich's revelation of Newt's
of Hillary Clinton ("She's a bitch!")?
Contract is defined in Restatement of Contracts as "a promise or a set of
promises for the breach of which the law gives a remedy, or the
of which the law in some way recognizes as a duty." A promise is defined
"as an undertaking, however expressed, either that something
or that something shall not happen, in the future." A breach
commitment is "a failure, without justification, to perform all or
of what is promised. . . ." Several studies have examined the U.S. Supreme
Court case Cohen v. Cowles Media Co., in which a plaintiff won damages
against the media for its breach of promise of
none of these studies provides a comprehensive analysis of legal
protections of contract/promise versus the First Amendment protections to
discern the underlying issue: when a promise not to publish
Amendment protection against prior restraints as well as
punishment of publication. This article analyzes the U.S. Supreme
the lower court opinions in cases pitting promises to sources not to
publish certain information against protections of the First
publication. First, cases in which federal employees have made
promises to the government not to publish sensitive information
their employment are considered. Then, the cases in which
promises not to publish the identity of private individual sources are
analyzed. Finally, the legal principles of these precedents are
two journalistic situations involving commitments not to publish:
agreement Persian Gulf War correspondents had to sign with the U.S.
military and Connie Chung's promise to Kathleen Gingrich.
Contracting Away the Right to Publish
This section considers how the courts have ruled in cases involving
federal employees who contracted away First Amendment protections as
condition of their employment. In each case, federal government
contracts restricted the employee expression about sensitive
learned at work. In Snepp v. United States, the U.S. Supreme
that a prepublication agreement signed by a Central Intelligence
employee was not an unconstitutional prior restraint but a valid
binding contract. The CIA agent was found to have conceded, as a
of employment, the right to publish what he learned while a CIA
unless he first submitted such materials for prepublication
Prior to Snepp, a federal court of appeals issued a similar decision in
United States v. Marchetti, a case involving another CIA
Marchetti, the first successful suit to enjoin political speech in the
country, the government prevented publication of a non-fiction
Central Intelligence Agency operations by Victor Marchetti, a
veteran of the CIA. After retiring, Marchetti sent to a publisher an
article and outline for a larger study of the CIA's intelligence
and covert political activities. An employee of the publisher
proposal to the CIA for its review, and the agency got a temporary order
from the U.S. District Court for the Eastern District of Virginia
restraining Marchetti from revealing any information he had learned
employed with the CIA without first gaining CIA permission. When
issued a permanent injunction a month later, it said that
given up his First Amendment rights to publish about the agency by
a secrecy agreement as a condition of his employment and upon
signing statements promising not to reveal classified information or
information relating to intelligence matters.
Affirming the judgment of the district court, the Fourth Circuit Court of
Appeals said the President as Commander in Chief had authority to
employee secrecy agreements to protect national security and the
director was under statutory mandate to prevent disclosure of
methods and sources. The court said the agency could restrain
not only to prevent "grave and irreparable harm" but also to
disclosure that might "reasonably be thought to be inconsistent with
national interest." The appeals court did narrow the reach of
court's injunction on publication of all intelligence information
at the CIA: The restraint would apply only to classified
information. The CIA could assert what was classified and should not
published; however, Marchetti could seek judicial review of the
government's assertions of classified material.
The CIA originally demanded 339 deletions to protect classified
intelligence information. The agency eventually agreed to release all but
168 items. Unable to get the CIA to release the remaining items,
joined by co-author John Marks and publisher Knopf returned to
judicial review of the contested passages. Four assistant CIA
gave testimony showing that each deleted item revealed classified
information. The district judge applied the standard that "information,
which might be sensitive to our national defense or to our
foreign nations, is not classified until a classifying officer
conscious determination that the governmental interest in secrecy
a general policy of disclosure and applies a label of 'Top Secret' or
'Secret' or 'Confidential' to the information." The judge said
officials were making ad hoc classifications of information after
Marchetti's book. The CIA provided documents showing that
the 168 passages was classified "Secret" or "Top Secret." After
evidence to show whether the contested passages contained
was classified, the court said only 26 of the 168 passages
properly classified material. To protect Marchetti's First Amendment
rights, the court required the government show the reasonableness of
classification and strict proof of classification. However,
enjoined publication of all the contested passages until the
a chance to appeal his decision. At that point, Knopf went ahead and
published the book without the 168 contested passages.
The Court of Appeals for the Fourth Circuit overruled the district court's
treatment of the classification question because it imposed "an
unreasonable and improper burden of proof of classification." The
accepted the government's proof of classification: that the
present in classified documents. The court said the classification of such
information was judicially reviewable, but "the review was exceedingly
narrow, with government classification subject to a broad
'regularity' and with the burden of proof of improper
squarely on the proponent of publication." The government had to show no
more than that the information from each disputed passage was
a classified document.
The court said that classified information was not considered to be in the
public domain unless the agency had officially disclosed it, even if the
information had been made public by rumors or undisclosed
the injunction did not cover information gathered by the agent
his employment or since his employment. The court said that
Amendment did not prohibit an injunction against the disclosure of
classified information when "the classified information was acquired,
during the course of his employment, by an employee of a United
agency or department in which such information is handled and its
disclosure would violate a solemn agreement made by the employee."
signing the confidentiality agreement as a condition of employment,
employee relinquished his First Amendment right to publish such
information. The Supreme Court declined to review the decision. This
in place the district court's injunction restraining Marchetti
publishing classified information that he learned on the job and the
publication of which was prohibited under the secrecy agreement he
In Marchetti the government was able to convince the courts to issue a
prior restraint on publication of information about a government
In spite of the holding of the New York Times Co. v. United
Pentagon Papers case), in which the Supreme Court had rejected
restraint of a classified government study and said such a restraint
only be granted in the case of military information that
and irreparable harm to the nation, the Court of Appeals for the
Circuit held that a court-imposed prior restraint on Marchetti was
permitted even without any attempt by the court to determine whether
publication caused the nation "direct, immediate and irreparable
court said the secrecy agreement signed by Marchetti gave the government
the right to impose the prior restraint. The court did rule that
plaintiff could seek judicial review of what the government said was
classified and should be censored. However, the burden was on the
to demonstrate that the information the government wanted to restrain as
classified was not properly classified.
Although the U.S. Supreme Court declined to hear Marchetti, the Court did
grant certiorari to former CIA agent Frank W. Snepp III, an
officer in Vietnam who published Decent Interval, a book critical
rapid American evacuation of Vietnam. He did so without
submitting it to
the agency for prepublication review. As a condition of his
the CIA, Snepp had pledged not to divulge classified information
and not to
publish any information he learned as a CIA agent without prepublication
clearance. The agreement Snepp had signed stipulated that he
"publish. . . any information or material relating to the Agency,
activities or intelligence activities generally, either during or
term of employment . . . without specific prior approval by the Agency."
The government sued Snepp for breach of contract and asked for an
injunction compelling Snepp to submit all future writings for
prepublication clearance and an order requiring Snepp to give the
government all profits from the unauthorized book under a constructive
trust for the government's benefit. Snepp had received $60,000 in
payments from the publisher and would receive additional
book sales and a movie deal. The government conceded that the book
no classified information but sought to punish Snepp for violating his
contract for prepublication review and to prevent any future
The District Court for the Eastern District of Virginia found that in
publishing his book Snepp had "willfully, deliberately and
breached his position of trust with the CIA and the secrecy
court said that Snepp had deliberately misled the CIA to believe he would
submit the manuscript for preclearance and the publication
United States irreparable harm and loss." The court issued an
requiring that for his lifetime Snepp not speak or write anything
CIA that he learned in its employ without prior review by the agency. The
court granted to the government a constructive trust on Snepp's
om the book. The Fourth Circuit Court of Appeals agreed that
breached a valid contract and that Snepp's failure to submit his
for prepublication review had inflicted "irreparable harm" on the nation's
intelligence activities. The appeals court upheld the district court's
injunction on future publications. However, the court reversed the
court's imposition of the constructive trust on the profits
because it said
the author had a First Amendment right to publish unclassified information
and the government had conceded to the appeals court that Snepp's book
divulged no classified intelligence. The court said that
was only to preserve the confidentiality of classified materials.
In his petition for certiorari to the U.S. Supreme Court, Snepp maintained
that his prepublication agreement with the CIA was an unenforceable prior
restraint on protected speech. In a per curiam opinion affirming
injunction, the Court found the secrecy agreement reasonable and not
unconstitutional prior restraint because of the national security
involved and the CIA's statutory mandate to "protect intelligence sources
and methods from disclosure." The Court said the government
compelling interest in protecting the secrecy of information important
national security, and the agreement with Snepp was a reasonable
accomplish that end. The government can restrict the First
of its employees to protect substantial government interests.
The Court found that Snepp had deliberately and surreptitiously violated
his prepublication agreement and "exposed the classified
which he had been entrusted to the risk of disclosure." The
not allege that Snepp's book contained classified information but
Snepp had breached the agreement to submit the text for review. However,
the Court reasoned that because the agent might have revealed
the CIA would find harmful, he impaired the CIA's ability to
statutory duties to protect sensitive information from
Director Stansfield Turner testified that Snepp's book and others
had seriously impaired the CIA's work because secret sources had
for fear of being revealed. The Court said, "Without a dependable
prepublication review procedure, no intelligence agency or responsible
Government official could be assured that an employee privy to
information might not conclude on his own -- innocently or
that it should be disclosed to the world."
Reversing the Court of Appeals, the Supreme Court reimposed the district
court's constructive trust as "the natural and customary
consequence of a
breach of trust. Because the agent publishes unreviewed material
violation of his fiduciary and contractual obligation, the trust
simply requires him to disgorge the benefits of his
Court said that the trust remedy would deter others from placing
information at risk.
Justices Brennan and Marshall joined Justice Stevens in dissent. Stevens
said that because the government had conceded Snepp's book
classified, nonpublic material, "the interest in confidentiality
Snepp's contract was designed to protect has not been
said the Court had no statutory or common law authorization to impose a
constructive trust remedy unless the record showed that Snepp had
classified information. Snepp's duty under his employment agreement was a
duty not to disclose confidential information. "When the
to enforce a harsh restriction on the employee's freedom, despite
admission that the interest the agreement was designed to protect --
confidentiality of classified information -- has not been
equity court might well be persuaded that the case is not one in
covenant should be enforced," Stevens said. Stevens
maintained that the
agency's censorship power should be limited to classified
wide-ranging prior restraint that would allow censorship of
non-classified materials might be good for national security but
it did not
conform with the demands of the First Amendment. Stevens said that
publication of Snepp's book that contained no classified information
not significantly weaken the CIA's effectiveness in recruiting
Stevens criticized the Court for being
unaware of the fact that its drastic new remedy has been fashioned to
enforce a species of prior restraint on a citizen's right to
government. Inherent in this prior restraint is the risk
that the reviewing
agency will misuse its authority to delay publication of a critical work
or to persuade an author to modify the contents of his work
demands of secrecy.
Stevens said an agency's authority to review a book had an inhibiting
effect on the author. "Moreover, the right to delay the publication
the review is completed is itself a form of prior restraint that
be tolerated in other contexts." Stevens said that the
government had not
met its heavy burden to justify the use of prior restraint in
this case and
that a full briefing and argument were needed in view of the national
interest in maintaining an effective intelligence agency.
After the Supreme Court decision, Snepp submitted 19 manuscripts to the
CIA's prepublication board for approval prior to publication. He
board were unable to agree on 18 of the manuscripts. In the
submitted, a manuscript for a television mini-series about his
in Vietnam, the prepublication board prohibited the publication
categories of information, including Snepp's use of any overseas
location except Saigon or any real names except his own. Snepp
the restrictions because they were vague and in the past the
approved release of similar material it now restricted. The CIA and
negotiated the deletions for two years, during which time Snepp
Snepp then filed a petition in the district court to collect damages for
loss of his television deal and to get the permanent injunction
place the burden on the CIA to initiate judicial proceedings if Snepp and
the CIA could not agree on what should be deleted from a
Denying his petition, the U.S. District Court for the Eastern
Virginia said the CIA acted reasonably, and on appeal the Court
for the Fourth Circuit also denied his petition to modify the
injunction. Snepp argued that the burden should be on the CIA
judicial proceedings when disputes arose with the agency over
material must be deleted from a manuscript. Snepp relied on Freedman
Maryland, in which the Court said that in reviewing motion
obscenity, the government had the burden of seeking an injunction
In rejecting Snepp's petition, the Fourth Circuit relied on its decision
in United States v. Marchetti, in which the court said, "Because
sensitivity of the area and confidentiality of the relationship in
the information was obtained, however, we find no reason to
burden of obtaining judicial review upon the CIA. It ought to be on
archetti." The court in Snepp said the difference between this
the burden was on Snepp to initiate judicial review, and
the Court placed the burden on the government, was the national
interest in Snepp. The national security interest at stake
placing the burden of seeking judicial review on the former agent,
CIA. The court also indicated that the scope of judicial
review to which
Snepp was entitled was narrow. "Courts must avoid second-guessing
decision to classify information because they have only a limited
knowledge of foreign intelligence matters," the court said.
In Snepp, the Supreme Court gave the government wide discretion in using
employee secrecy agreements requiring prepublication review and
punishing their breach. According to one authority, "[T]he government
insisted in Snepp, that a mere violation of the CIA's system of
in actuality harmless vis-a-vis national security information, could
itself justify sanctions against the freedom to write and publish
information otherwise protected by the First Amendment." If the
denied approval, Snepp could not publish. If Snepp wished to pursue
publication, he had to appeal the agency's censorship for review by
courts. However, to keep from second-guessing the informed
decisions of the
agency, the courts could subject the agency's classification decisions
only to a narrow review. More than a decade later, Snepp still
under the permanent injunction and the agency continued to impose
restraint on dissemination of information he had learned two
earlier in Vietnam. The injunction was imposed for Snepp's lifetime.
In a 1984 case upholding the conviction of civilian defense analyst Samuel
Morison for espionage for leaking classified information to the media, the
court of appeals said the First Amendment did not excuse the government
employee from his contractual obligation not to reveal classified
information. Morison was convicted of espionage for providing the
publication Jane's Defence Weekly with a satellite photograph of
aircraft carrier under construction. The National
Center employee was convicted of violating the theft of government
sections of the Criminal Code and two provisions of the Espionage Act.
Bound by the Espionage Act and contractual obligations created by
employment agreements against unauthorized disclosure, Morison was
for stealing and selling or giving away government information.
Morison maintained that the two espionage statutes he was charged with
violating targeted classic espionage and spying activities of
national security secrets to foreign governments but did not apply
leaking information to a naval news publication. Affirming the
court's conviction of Morison, Fourth Circuit Judge Donald Russell
that subsections 793(d) and (e) of the Espionage Act were not
those engaged in classic spying but were intended to criminalize
of classified material to anyone "not entitled to receive it." He said the
statute contained "no exemption in favor of one who leaks to the press,"
and he did not perceive "any First Amendment rights implicated
First Amendment did not enable "the governmental employee to
excuse his act
of theft or to excuse him, as in Snepp and Marchetti, from his contractual
The U.S. government has successfully punished employees for failing to
keep their employment contracts not to publish information gained
employment. In Snepp v. United States, the Court said that a
agreement signed by a CIA employee was not an unconstitutional prior
restraint but a valid and binding contract. The CIA agent was found
given up, as a condition of employment, the right to publish what he lear
ned while a CIA employee unless he first submitted to
review. The government conceded that Snepp's book revealed no
information but sought to punish Snepp for violating his contract
prevent any future unreviewed publications. Likewise, lower
found that contractual obligations central in turning back the First
Amendment assertions of Marchetti and Morison.
Punishing Journalists For Promise Breaking
Although journalists have not been punished for publishing as a result of
contractual relations with the government, they have been
civil judgments for breaching promises made to private sources.
Supreme Court decision in Cohen v. Cowles Media Co. suggests
journalists have a legal duty to keep their promises to sources. In that
case, the Court said the First Amendment did not prevent the
being punished for breaking an oral promise of confidentiality to
During the 1982 election campaign, Dan Cohen, public relations director
for the agency handling advertising for Wheelock Whitney's
Independent-Republican gubernatorial campaign, offered reporters from the
Minneapolis Star Tribune, the St. Paul Pioneer Press Dispatch,
Associated Press and WCCO-TV juicy information if they promised
confidentiality. Cohen's offer to each reporter was:
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
with this, and that you will also agree that you're not going
pursue with me a question of who my source is, then I will
with the documents.
Receiving the reporters' acceptance of his conditions, Cohen handed over
copies of two public court records concerning Marlene Johnson,
Democratic-Farmer-Labor candidate for lieutenant governor. One record
showed that Johnson had been charged with three counts of unlawful
in 1969 and the other that she had been convicted of petit theft in 1970.
The charges for unlawful assembly occurred during a political
minority hiring and were dismissed. The conviction for petit
theft was for
leaving a store with $6 worth of sewing materials, allegedly
during a time
of emotional stress in Johnson's life. The conviction was later
Both the Tribune and the Dispatch newspapers' editors decided to publish
the identity of the source, Dan Cohen, along with the story about
charges. The Associated Press ran the story without identifying
the television station did not broadcast a story at all. The day
ries appeared, Cohen was fired by his employer. Cohen sued the
for fraudulent misrepresentation and breach of contract. The
rejected the defendants' argument that the First Amendment barred
lawsuit, and the jury awarded Cohen $200,000 in compensatory
$500,000 in punitive damages.
On appeal, the Minnesota Court of Appeals rejected the district court's
finding of fraudulent misrepresentation and reversed the punitive
based on the misrepresentation tort. However, the court of
the breach of contract claim and the compensatory damages, concluding that
the First Amendment did not bar Cohen's contract claim because "the
newspapers knowingly waived their First Amendment rights." The
the application of the neutral principles of contract law to a
to publish was not state action that triggers First Amendment
because the parties entered the agreement without involvement by
Reversing the court of appeals on the breach of contract claim, the
Minnesota Supreme Court held that the agreement between the reporter
the source did not constitute a legally binding contract. The
that although the reporters made a clear-cut promise to Cohen,
does not create a contract where the parties intended none."
had not included a promissory estoppel cause of action, which
Minnesota common law protected those who relied on promises and
harm as a result of the promises being broken, the court
such an action was a better remedy for a broken promise of
to a source. The court said that under the state's promissory
doctrine, which implies "a contract in law where none exists in
source might recover damages for breach of a promise of
promissory estoppel action required the court to consider why journalists
broke the promise. Besides, the Minnesota Supreme Court
competing with the injustice against Cohen was the media assertion of a
moral interest in breaking the promise, the interest in furthering
political debate of election issues. The First Amendment
protection for the
newspapers' decision to publish Cohen's name prevented Cohen from
recovering damages under promissory estoppel law. The court reversed
compensatory damages award, leaving Cohen with nothing.
In a 5-4 decision, the U.S. Supreme Court ruled that the First Amendment
did not protect the media from a promissory estoppel cause of
Cowles Media contended that under Smith v. Daily Mail, "if a
lawfully obtains information about a matter of public significance
state officials may not constitutionally punish publication of the
information, absent a need to further a state interest of the highest
order." In his decision for the Court joined by Chief Justice
Justices Stevens, Scalia and Kennedy, Justice White said that the Daily
Mail line of cases did not control this case. Instead, the line
decisions that was controlling was that which held that "generally
applicable laws do not offend the First Amendment simply because their
enforcement against the press has incidental effects on its ability
gather and report the news." The application of Minnesota's law
promissory estoppel to the media did not single out the press, and
therefore its application was not barred by the First Amendment.
White said a judgment against the media under promissory estoppel
really punishment of the press, such as the criminal sanction
unconstitutional in Daily Mail. In that case, the state defined the
of publication to be punished. In Cohen, because the parties to the
promise determined the scope of the legal obligations, "the
placed on the publication of truthful information [were]
White said. "The payment of compensatory damages in this case is
constitutionally indistinguishable from a generous bonus to a
news source." White also questioned whether the media
obtained Cohen's name
lawfully because the journalists obtained the information by making a
promise they did not keep. If the law of promissory estoppel
journalists from naming newsworthy sources, "it is no more than the
incidental, and constitutionally insignificant, consequence of
the press a generally applicable law that requires those who make
kinds of promises to keep them." White remanded the case back
Minnesota Supreme Court, which then ruled that Cohen had met state
requirements of promissory estoppel and upheld the $200,000
damage award to Cohen.
In his dissent joined by Justices Marshall and Souter, Justice Blackmun
said that penalizing truthful reporting regarding a political
violated the First Amendment. He said the incidental effects
inappropriate in Cohen because the incidental effects cases "did
involve the imposition of liability based upon the content of
Instead, the Court's decision in Hustler Magazine, Inc. v. Falwell
applicable. Just as the use of intentional infliction of emotional
distress, part of Virginia's common law of general applicability, to
expression of opinion violated the First Amendment, so too "the operation
of Minnesota's doctrine of promissory estoppel in this case
cannot be said
to have a merely 'incidental effect' burden on speech [because]
publication of important political speech is the claimed violation,"
Blackmun said. To punish publication of truthful information
with the First Amendment, the punishment must further a state
the highest order, which Minnesota did not assert in its
Justice Souter, joined in his dissent by Justices Marshall, Blackmun and
O'Connor, rejected the incidental effects line of cases as
"'There is nothing talismanic about neutral laws of general
for such laws may restrict First Amendment rights just as effectively as
those directed specifically at speech itself," Souter said.
contended that the Court's analysis focused only on the speaker's
and ignored the importance of the information to public debate.
freedom of the press is ultimately founded on the value of enhancing
discourse for the sake of a citizenry better informed and thus
prudently governed," he said. Souter said the state's interest in
a newspaper's promise of confidentiality was "insufficient to outweigh the
interest in unfettered publication of the information revealed in this
According to Justice Souter's analysis of the majority opinion in Cohen,
the Court focused on the speaker's contract and ignored the First
values in protecting political debate. In other words, the rights of a
legally binding promise of confidentiality to a source trumped the
Amendment rights of the journalists. By raising up the talisman
incidental effects, the Court did not have to address the First
concerns in this case.
Since the Court decided Cohen, other plaintiffs have successfully sued the
media for breaking promises of confidentiality. Jill Ruzicka sued writer
Claudia Dreifus and Glamour magazine for breaking a promise that
not be "identified or made identifiable" in an article about
therapist-patient sexual abuse. In 1981 Ruzicka had sued her psychiatrist
for improper sexual conduct, and the Minneapolis Tribune had
and identified her job with the County Attorney's office in an
story about her lawsuit and described her allegations in a 1982
an agreement between the psychiatrist and the state board of medical
examiners. Before publication, Dreifus asked permission to
Ruzicka, but she refused and restated the terms of the confidentiality
agreement. The published article, "Sex with Shrinks," changed Jill
Ruzicka's name to "Jill Lunquist," but accurately described her as a
Minnesota attorney, the plaintiff in a lawsuit against the
a member of a state legislative task force on therapist sexual abuse of
The U.S. Court of Appeals for the Eighth Circuit affirmed federal district
court's decision to grant the media defendant summary judgment in
Ruzicka's actions for breach of contract, fraudulent misrepresentation,
invasion of privacy, intentional infliction of emotional distress
unjust enrichment. Because the U.S. Supreme Court had decided
Ruzicka had filed her lawsuit, the court of appeals allowed
amend her complaint to include promissory estoppel and remanded the
the district court to consider the matter under the doctrine of promissory
estoppel. The federal district court ruled as a matter of law for the
magazine because Ruzicka had not established that a clear and
promise was made to support recovery under promissory estoppel.
district court said changing Ruzicka's surname in the published story
satisfied the promise that the source would not to be identified.
additional promise that the source not be identifiable in the story
vague to support a cause of action, the district court concluded.
The court of appeals reversed the summary judgment the district court had
granted and sent it back for trial. The court of appeals
district court's conclusion that the promise was too vague and held
the term identifiable made the term identify more specific in
existence and scope of the promises made were questions of fact
decided by a jury, not by a court as a question of law. The court
concluded, "'[A]bsent the showing of any compelling need in this case to
break the promise, we conclude that the resultant harm to
requires a remedy here to avoid an injustice.'"
In a case similar to Ruzicka, a New York state court said the press can be
held legally responsible for a breach of promise of confidentiality. In
Anderson v. Strong Memorial Hospital, an HIV-positive patient
physician and the hospital for breach of the patient-physician
when an identifiable photograph of Cornell Anderson was published
Rochester (N.Y.) Democrat & Chronicle, a Gannett newspaper. The
photographer had promised the patient and the doctor that
not be recognizable in the photograph. HIV-positive Anderson had
his friends or family members about his condition. When they saw
ograph, friends and family members recognized the patient.
the hospital and his physician and was awarded $350,000. Anderson
Gannett for libel and invasion of privacy but these actions were
dismissed. In turn, the hospital sued Gannett for negligence, negligent
misrepresentation, breach of contract and causing the breach of
physician-patient privilege for failing to comply with its promise to
doctor and the patient that Anderson would not be recognizable in
newspaper photograph. The physician and doctor said Gannett's breach
promise had caused the damages assessed against them in the
Anderson and should pay those damages. The state court said that
promise to the physician and the hospital had created an
and "the breach of such duty was a proximate cause of the
sustained by them."
The court based its finding on Cohen v. Cowles Media Co., in which the
U.S. Supreme Court held that the First Amendment did not prohibit
from making the media liable for dishonoring a promise solemnly
Anderson court found that
an unkept promise to a news source makes the press' conduct unlawful.
. . . Had Anderson or [the doctor and hospital] known the
them would be broken, permission for the photograph would
been granted. The absence of permission under such
Gannett's conduct unlawful, the same way as a TV photographer
entering someone's home without permission.
The court said that Gannett could not hide behind the First Amendment when
it "voluntarily undertook to self-censor itself by agreeing that
would not be recognizable." The court said Gannett was
ensuring the photograph could not be recognized by Anderson's
friends, and, because it failed to do so, it should share in
damages awarded Anderson.
A Pennsylvania plaintiff was unsuccessful when she sued a reporter and his
newspaper for breaking a promise of confidentiality. In Morgan By and
Through Chambon v. Celender, a mother and her children sued the
Dispatch and its owner, Gannett Publishing Company, for invasion of
privacy, intentional misrepresentation and intentional infliction of
emotional distress. Diane Morgan Chambon and her children alleged
publishing their photograph and names in a story about sexual
abuse by the
child's father, who was a former police chief, the Valley News
broken his promise that no names would be used in the story and that the
child and mother would be unidentifiable in a silhouette
photograph was accompanied by the cutline, "Heather Morgan, a
sexual abuse, talks with her mother, Diane." Chambon said she
the interview with reporter Mark Celender on the basis that it
was off the
record and to a photograph only if it were an unidentifiable
Morgan alleged that she and the children had suffered damages as
of their identification in the story.
The federal district court said that because the alleged abuser was a
former police chief and the sexual abuse victim's name, Heather
appeared in a state court criminal complaint against the father, the
matter was newsworthy and the facts of the case were in the public
Therefore, the Morgans could not win an action for invasion of privacy.
Neither was the publication outrageous enough to support an
infliction of emotional distress claim. Then, the court said that
Morgans had not established that they could prove by clear and
evidence the elements of the tort of intentional
when the reporter broke the promise to keep certain information
confidential. First, a promise to do something in the future, such as
promising to keep a confidence and then failing to do so, did not
constitute intentional misrepresentation under Pennsylvania law. The
cited the Cohen opinion of the Minnesota Court of Appeals, in
court said that Cowles Media's breach of the agreement did not
cause of action for fraudulent misrepresentation because at the
reporters made the agreement, they did not intend to breach the
Because the journalists intended to perform the contracts with
did not misrepresent a present or past fact. Second, the
court in Morgan
said, under Pennsylvania law the plaintiff had to establish
loss to win a claim of intentional misrepresentation, and the Morgans had
failed to do so. The court granted the media defendants'
In Morgan v. Celender, the alleged promise was to keep confidential
information that was already contained in a court record. And the
publication of that information was both newsworthy and of public
because the alleged perpetrator of sexual abuse of his daughter
former police chief. The facts of Morgan differ from Cohen, in which
pledge was to keep confidential the identity of the source of
Dan Cohen, because that information was not public. Although
information from a court record, the information that he was the source
was confidential. Morgan also differs from Anderson, in which the
was to keep confidential personal medical information,
information that was
The facts of Morgan are most like Ruzicka. Both involved sexual abuse:
one, a child's abuse by a parent; the other, a patient's abuse by
therapist. Both situations were the subject of court action. The
name had appeared in a criminal complaint against her father, and
Ruzicka's name in conjunction with the civil suit against the
They differ, however, in that Morgan involved a crime by a public
a former police chief, while Ruzicka involved a private therapist
breaching professional standards of practice. Another difference is
Morgan the plaintiffs never alleged a cause of action for breach of
contract and the court found intentional misrepresentation not an
appropriate remedy for a breach of promise of confidentiality. In
the plaintiff had alleged breach of contract, just as Cohen had
as in Cohen the Minnesota Supreme Court had permitted the
addition of a
claim for promissory estoppel, likewise after Cohen was decided,
federal court of appeals permitted Ruzicka to amend her suit by
action for promissory estoppel. Although newsworthiness of a
story about a
police chief's crime may elevate the value of naming the
Morgan, the plaintiff's failure to include a claim of breach of
Morgan is the decisive difference from Ruzicka.
The U.S. Supreme Court's decision in Cohen and these two lower court
decisions since Cohen v. Cowles Media establish that journalists in
promises of confidentiality to sources might create binding legal
commitments to keep the promises. Relying on Cohen, the courts in
and Anderson sustained the breach of promise claims against the
distinguishes the Pennsylvania case, in which the court found in favor of
the media, is that the plaintiffs failed to pursue a claim for
contract or promise. In the cases in which the plaintiffs pursued
appropriate cause of action for the violation of a promise, such as
promissory estoppel, proved a breach of a clear and definite promise,
showed harm resulting from the broken promise, the courts found
in favor of
Whether All Promises to Sources Are Legally Binding Commitments
This section examines two situations in which journalists made promises to
their sources to gain information and applies the legal principles
articulated in the cases analyzed above to determine whether in these
instances journalists have legally binding commitments to their
First, whether journalists who signed an agreement with the U.S.
on how and what to report about the Persian Gulf War waived their First
Amendment protections is discussed. Second, whether Connie
promise of confidentiality to Kathleen Gingrich represents a set
that would support a successful lawsuit for breach of promise is
Journalists desiring press credentials and participation in press pools in
the Persian Gulf War had to agree to and sign "Operation Desert Shield
Ground Rules and Guidelines for News Media." The rules
reporters going into a combat zone be accompanied by military public
affairs officers and enumerated the categories of information that
not be reported because publication "could jeopardize operations
endanger lives if published." Reporters were not to give
information on tactics and operations. They were to use vague terms to
describe military operations, such as "low" and "fast," and, so as
give away unit locations, to provide general datelines, such as
Kuwait border." The guidelines stipulated that only reporters in
pools assigned to combat units could go into forward areas. Also,
products would be subject to review before release "to determine if
contain sensitive information about military plans, capabilities,
operations or vulnerabilities . . . that would jeopardize the outcome of
operation or the safety of U.S. or coalition forces." However, the rules
promised that "[m]aterial will be examined solely for its
the attached ground rules, not for its potential to express
cause embarrassment." If reporters violated the ground
rules, the military
could take them back to Dhahran, pull their press credentials and deny
them access to military operations and pool reports.
Just as Frank Snepp and Victor Marchetti had to sign secrecy agreements
and agree to submit their publications for prior review by the
so too journalists desiring press credentials and participation
pools in the Gulf War had to sign a statement agreeing to follow
guidelines, including that they would submit their news products for
review and not publish sensitive information. The question raised
requirement is whether journalists relinquished First Amendment
signing the military guidelines and agreeing to copy review as a
for participation in combat press pools. Did journalists in
copy review to gain access to press pools enter a relationship
government similar to that of CIA employees, whose publications
in Marchetti and Snepp said were constitutionally restrained?
In cases involving CIA agents who tried to publish books about their work,
the courts upheld the government's right to enjoin publication unless the
publications were submitted to the government for prepublication
classified information. In Knopf v. Colby, the Court of Appeals for the
Fourth Circuit said the First Amendment did not prohibit an
against the disclosure of properly classified information when "the
classified information was acquired, during the course of his
by an employee of a United States agency or department in which
information is handled and its disclosure would violate a solemn
made by the employee." By signing the confidentiality
agreement as a
condition of employment, the employee relinquished his First
right to publish such information. Likewise, in Snepp v. United
U.S. Supreme Court said that a prepublication agreement signed by a
Central Intelligence Agency employee was not an unconstitutional
restraint but a valid and binding contract. The Court said that
conceded the right to publish what he learned while a CIA
he first submitted to prepublication review. The Court found the
secrecy agreement reasonable and not an unconstitutional prior
because of the national security interests involved and the CIA's
mandate to "protect intelligence sources and methods from disclosure."
Journalists in agreeing to copy review to gain access to press pools did
not enter the same relationship to the government as did CIA
whose publications the courts ruled in Knopf v. Colby and Snepp v.
States were constitutionally restrained and, in Snepp's case,
constitutionally punished. Although journalists signed the military
guidelines for press coverage, the relationship between journalists
military created by signing the press pool guidelines was not analogous to
the contractual obligation to the U.S. government created when Snepp and
Marchetti signed secrecy agreements as a condition of employment.
journalists had not joined the U.S. military. They remained
working for non-governmental news organizations. They were not
consultants of the U.S. armed forces. Even the provision of the Uniform
Code of Military Justice that extended its authority to "all
serving with, employed by, or accompanying the armed forces without
continental limits of the United States" was repealed in
there was no statutory basis for extending the legal principle
government employee Snepp was constitutionally punished for
contract with regard to publication about the CIA to journalists
g to obey the press rules in publications about the Gulf War.
The relationship of the agents to the CIA is more appropriately compared
to the relationship soldiers have to the military: Both
First Amendment protections as a condition of employment. In
Parker v. Levy
, the Court recognized that soldiers enjoyed some but not all of
Amendment protections of civilians. "While members of the
military are not
excluded from the protection granted by the First Amendment, the
character of the military community and of the military mission
different application of these protections," the Court said.
Journalists did not join the Army when they were sent to cover soldiers at
war. They did not become a part of the military system. They remained
independent observers, watchdogs for the public, outside the
system. The military planners, in conceiving the review system, may
wanted to produce a Snepp-like relationship between military
press pool members. However, the press did not sign away its
Amendment rights to cover the war. The government cannot create an
unconstitutional requirement on the press and expect the Court to
it constitutional because the press submitted to the requirement.
military has the burden to justify the creation of a copy review
which in the Gulf was put into place before journalists agreed to
system, and to show a compelling national security interest why a
journalist's publication should be restrained or punished. The Court
the government could punish Snepp even though he had not revealed
classified information in order to protect the integrity of the
prepublication review system. On the other hand, journalists covering the
war were not government employees. They had no choice but to sign
agreement to do their jobs as journalists. The military in planning
reporting requirements understood the limitations of the agreement
by journalists. For example, the procedure for copy review left
ultimate decision about publication in the hands of the reporter's
The implications of Cohen v. Cowles Media Co. for the agreement between
journalists and the military are subtle. In the Persian Gulf War,
journalists had to pledge cooperation in writing -- no need to trace the
law of oral promise. In Cohen the conditions of the promise
seemed to trump
First Amendment concerns under the incidental effects analysis. Applying
the Cohen logic to the military/reporter agreement, journalists
to participate under its conditions and pledged to submit their
military censors could be enjoined from publishing what they knew,
effectively, punished for failing to play by the military's
However, the analogy between the Gulf War contract and the promise in
Cohen fails. White distinguished Cohen from Daily Mail and Florida
because in those cases, "the State itself defined the content of
publications that would trigger liability," while in Cohen, the
parties themselves determined the scope of their legal obligations
oral contract. In the contract between the press and the
military, it was
the military that determined the content that would trigger the
The analysis of the Gulf War restrictions is not controlled by Cohen.
Unlike Cohen in which the Minnesota Court of Appeals found there
state action to trigger First Amendment scrutiny, the
agreement between the
press and the military involved government action limiting publication.
The government could not force the press to sign the agreement
waive its First Amendment rights. Therefore, for the government
the press for its breach of the guidelines, it must first prove
rules served a compelling national interest and the publication
information put the national security interest into jeopardy. Just
that the journalists did not play by the rules of the agreement
would not be sufficient to overcome the First Amendment interests in
publishing information about U.S. military operations.
The above scenario involved the U.S. government as the source in a
reporter-source confidentiality agreement. The analysis concluded that
journalists did not waive their First Amendment protections when
signed a government-reporter contract as a condition of reporting
A different scenario involving a promise a journalist made to a
individual, in this case Connie Chung's pledge to Kathleen
analyzed in this section. The facts of Connie Chung's promise
confidentiality to Kathleen Gingrich are clear because the recorded
interview was broadcast on the January 5, 1995, edition of CBS-TV's
Eye with Connie Chung." When in an interview at the Dauphin, Pa., home of
the mother of the Speaker of the House, Kathleen Gingrich refused
divulge her son's statement about Hillary Clinton, Chung told
"Why don't you just whisper it to me, just between you and
Even though millions of Americans witnessed Chung's promise of
confidentiality to Kathleen Gingrich, Gingrich probably could not win a
lawsuit for breach of promise of confidentiality. First, Gingrich
suffer harm. In fact, Gingrich has benefited from the publication
secret. She received a letter from First Lady Hillary Clinton
invitation to tour the White House. And since then, she and son
taken the tour. This presence of harm was decisive in meeting the
requirements of promissory estoppel in Cohen v. Cowles Media. The
Pennsylvania plaintiff's case for misrepresentation for breaking a
of confidentiality failed partly because she could not establish
loss. Furthermore, to recover for breach of promise, the
terms of the
promise must be specific, such as the detailed commitment Dan Cohen
prepared for reporters or the clear promise to Jill Ruzicka that she
not be identified or identifiable, which Ruzicka reiterated to
prior to publication. Inducing a source to whisper her secret "just
between you and me" in front of video cameras, a camera crew and a
did not create the same character of commitment to confidentiality as that
created by the clearly negotiated promises of confidentiality extracted by
Dan Cohen and Jill Ruzicka prior to their revelations to the media.
Finally, in the case of Chung's breach of promise, there does not
be any grave injustice that needs to be righted by the
enforcement of the
agreement. If anything, the episode blackened Connie Chung's
a credible journalist and reinforced the public's distrust for
Summary and Conclusions
What seems clear from the analysis of the cases involving reporter
promises to sources is that First Amendment protections may be trumped
legally binding promises between a publisher and the source of
Although sources are not always successful in legal action against
reporters for breaking their promises, the courts have found that
publishers waive their First Amendment protections when they enter into
contractual obligations with sources. Certainly, federal employees
confidentiality agreements with the government and who deal in areas of
sensitive government information relinquish their First Amendment
protections in the publication of information learned on the job.
independent reporters might not lose their First Amendment
even if they are forced to sign agreements not to report
unless the government can make its case for a compelling national
interest that demands restraint or punishment of publication.
On the other hand, an agreement between a journalist and a private
individual not to disclose a source's information or the source's
might constitute a legally binding commitment, especially if the
is able to show that a clear and specific commitment was made not
certain information and that as a result of the breach of promise the
plaintiff suffered specific harm. However, Connie Chung's request
Kathleen Gingrich whisper her remark "just between you and me," in
the source did not whisper it just to Chung but to a camera crew
not suffer any harm, is probably not actionable under a breach of
Good legal advice for journalists, who in the heat of gathering
information promise confidentiality to a source, is that contained in the
1994 revision of the Associated Press Managing Editors code of
perhaps written with Cohen v. Cowles Media Co. in mind:
Promises made to a news source regarding conditions of use or
attribution (including such designations as off-the-record, on
background, not-for-attribution and embargoed) or pre-publication
review of any sort should be kept by the newspaper, or the
should not be used. Journalists are responsible for assuring that
agreements made with sources are clear, precise and
understood by all
parties. Journalists who have any doubt about whether a
understands that all information is on the record, unless
explicitly agreed, should inform the source of this fact at
Failing to abide by these principles of ethical practice, as happened in
the cases discussed above, might result in a successful legal
breaking a promise of confidentiality.
 Eye to Eye With Connie Chung (
CBS television broadcast, Jan. 5, 1995).
 Felix Winternitz, When Unn
amed Sources are Banned, The Quill, Oct. 1989, at 38.
 Richard Scott
Mowrer, The Press is in Danger of Manipulation When it Quotes Anonymous
Sources, Presstime, June 1987, at 74.
 See Snepp v. United States, 4
44 U.S. 507 (1980), and United States v. Marchetti, 466
F.2d 1309 (4th Cir. 1972).
 See Cohen v. Cowles Media Co.,
501 U.S. 663 (1991); Ruzicka v. Conde Nast
ications Inc., 999 F.2d. 1319 (8th Cir. 1993); Anderson v. Strong Mem. Hosp
N.Y.S.2d 828 (N.Y. Sup. Ct. 1991).
m Newt's Mom's Lips to Connie Chung's Ear: A Controversy is Born, The Chica
Tribune, Jan. 4, 1995, at 2.
ment (Second) of the Law of Contracts, _ 1 (1988).
 Id. at _ 2 (198
 Id. at _ 314 (1988).
 See Jerome A. Barron, Cohen v. C
owles Media and its Significance for First
dment Law and Journalism, 3 Wm. & Mary Bill of Rts. J. 419 (1994); Matthew
Sigman Splichal, Legally Enforceable Repor
ter-Source Agreements: Chilling News Gathering
Source, 70 Journalism Q. 939 (1993); Kyu Ho Youm and Harry W. Stonecipher,
Legal Bounds of Confidentiality Promises: Promis
sory Estoppel and the First Amendment, 45
munications L. J. 63 (1992); and Damages for Broken Promise Upheld, The New
Media & the Law, Winter 1992, at 2.
 444 U.
S. 507 (1980).
 United States v. Marchetti, No. 179-72-A (E.D.Va. 1
972), injunction affirmed, 466
F.2d 1309 (4th C
ir. 1972), cert. denied, 409 U.S. 1063 (1972).
 Melvin L. Wulf, Int
roduction, in The CIA and the Cult of Intelligence xix (Victor
Marchetti and John D. Marks, 1974)("On April 18, 1972, Vict
or Marchetti became the first
American writer to be s
erved with an official censorship order issued by a court of the
United States." At xix); see also Morton Halperin & Daniel Hoff
man, Freedom vs. National
Security 109 (1977).
] United States v. Marchetti, No. 179-72-A (E.D.Va. 1972).
tti, 466 F. 2d at 1314 (citing 50 U.S.C. _ 403(d)(3)).
 Id. at 1315
 Knopf, Inc. v. Colby, No. 540-73-A (E.D.Va. 1974), affirmed in p
art and vacated in
part, 509 F.2d 1362 (4th Cir
. 1975), cert. denied, 421 U.S. 992 (1975).
 Knopf, 509 F.2d at 136
 Id. at 1367.
 Halperin & Hoffman, supra note 13, at 111
. See Victor Marchetti & John Marks, The
d the Cult of Intelligence (1974)(containing 168 blank spaces marked "DELET
indicate the 168 government imposed deletions)
 Knopf, 509 F.2d at 1367.
 Henry R. Kaufman, The Snepp Ca
se -- Government Censorship through the "Back Door"
13, 16, in Censorship, Secrecy, Access and Obscenity (Theodore R. Kuph
erman ed., 1990).
See also McGehee v. Casey, 718 F.2d
1137 (D.C. Cir. 1983)(A former CIA agent who submitted
a manuscript for
prepublication review challenged the censorship system used to restrain
portions of his text as classified. The court of appeals
said restrictions on speech of
must further a substantial government interest unrelated to the
suppression of speech and the restriction must be narrowly drawn
. In McGehee, the
censorship was constitutional becau
se it furthered the substantial government interest in
protecting national security.)
 Knopf, 509 F.2d at 1371.
Id. at 1370.
 Knopf, Inc. v. Colby, cert. denied, 421 U.S. 992 (19
 403 U.S. 713 (1971).
 United States v. Marchetti, 466
F.2d 1309, 1315 (4th Cir. 1972).
 Snepp v. United States, 444 U.S.
507, 508 (1980).
 Snepp v. United States, 456 F. Supp. 176, 179 (E
.D. Va. 1978).
 Id. at 180.
 Snepp v. United States, 595 F.
2d 926, 935 (4th Cir. 1979).
 Id. at 935-36.
 Snepp v. Unit
ed States, 444 U.S. 507, 509 (citing 50 U.S.C. _ 403(d)(3)).
 Id. a
 Id. at 513.
 Id. at 515.
 Id. at 516 (Steve
ns, J., dissenting).
 Id. at 516-17.
 Id. at 520.
Id. at 526.
 Id. (citing New York Times v. United States, 403 U.S
. 713 (1971), and Nebraska Press
Association v. Stuart, 427 U.S. 539 (19
 U.S. v. Snepp, 897 F.2d 138, 140 (4th Cir. 1990), cert. deni
ed., 111 S. Ct. 57
Freedman v. Maryland, 380 U.S. 51, 59 (1965).
 United States v. M
archetti, 466 F.2d 1309, 1317 (4th Cir. 1972).
 Snepp, 897 F.2d at
142 ("Even if the government has a tendency to 'classif[y] as
confidential much relatively innocuous or noncritical inform
ation,' Halperin v. Kissinger,
606 F.2d 1192, 1204 n. 77 (D.C. Cir. 1979)
, the government interests at stake justify
he burden on the author to seek judicial review. The CIA has a compelling
interest in preventing the disclosure of confidential
information." Id. at 142 n. 3.).
 Id. at 141.
 Henry R. Kau
fman, The Snepp Case -- Government Censorship through the "Back Door"
13, 18, in Censorship, Secrecy, Access and Obscenity
(Theodore R. Kupherman ed., 1990).
 U.S. v. Morison, 844 F.2d 1057
(4th Cir. 1988).
 18 U.S.C. _ 641(imposing criminal penalties on a
nyone who "embezzles, steals,
purloins or knowi
ngly converts to his use or the use of another, or without authority,
sells, conveys or disposes of any record, voucher, money,
or thing of value of the United
States or of any depa
rtment or agency thereof").
 18 U.S.C. _ 793(d) and (e).
orison, 844 F.2d at 1062 (quoting 18 U.S.C.A. _ 793(d)).
 Id. at 10
 Id. at 1068.
 444 U.S. 507 (1980).
] Snepp v. United States, 595 F.2d 926, 235 (4th Cir. 1979).
 15 M
edia L. Rep. (BNA) 2288 (D. Minn. 1988); aff'd in part and rev'd in part, 4
N.W. 2d 248 (Minn. Ct. App. 1989); aff'd in
part and rev'd in part, 457 N.W.2d 199 (Minn.
rev'd, 501 U.S. 663 (1991).
 445 N.W. 2d at 252.
 501 U.S.
 445 N.W.2d at 254.
 Id. at 255 .
 Cohen v. Cowles Media Co., 457 N.W.2d 199, 203 (Minn. 1990)(ruling th
at the promise
between a journalist and the sou
rce was a moral commitment and did not constitute a
egally binding contract, that usually involved an offer, acceptance and con
the promise. One legal commentator discusses whether a rep
orter's promise of
confidentiality does contain the e
lements of a legally enforceable contract: a source's
request for confidentiality is an offer, a reporter's acceptance of this c
titutes acceptance and the consideration
is the promise of confidentiality to the source
from the source is the information given the reporter. Kyu Ho Youm, supra
note 10, at
 To support an action for promissory estoppel u
nder Minnesota law, the plaintiff must
show, first, "the promise was clea
r and definite," second, "the promisor must have
intended to induce reliance on the part of the promisee, and such relianc
e must have oc
curred to the promisee's detriment," an
d, third, "the promise [must] be enforced to
injustice." Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992).
 457 N.W.2d at 203.
 Cohen v. Cowles Media, 501 U.S. 663, 66
 Id. at 669 (citing Branzburg v. Hayes, 408 U.S. 665 (197
2); Oklahoma Press
Publishing Co. v. Walling, 3
27 U.S. 186, 192-93 (1946); and Minnesota Star & Tribune Co.
v. Minnesota Comm'r of Revenue, 460 U.S. 575, 581-83 (1983)).
9] Id. at 670.
 Id. at 672.
 Cohen v. Cowles Media, 479 N.
W.2d 387 (Minn. 1992).
 Cohen, 501 U.S. at 674 (Blackmun, J., disse
 485 U.S. 46 (1988).
 Cohen, 501 U.S. at 675.
5] Id. at 677 (Souter, J., dissenting)(quoting Employment Division, Dept.
Resources of Oregon v. Smith, 110 S.Ct
. 1595, 1612 (1990)).
 Id. at 678.
 Id. at 679.
zicka v. Conde Nast Publications Inc., 999 F.2d. 1319, 21 Media L. Rep. (BN
(8th Cir. 1993); Anderson v. Strong Mem. Hosp., 573 N.Y.S.2d 828
(N.Y. Sup. Ct. 1991).
 Ruzicka v. Conde Nast Publications Inc., 939
F.2d 578 (8th Cir. 1991).
 Id. at 580 (Ruzicka also served on a st
ate task force on therapist exploitation of
ients, spoke about the abuse she suffered at a public hearing before the Mi
legislature, and discussed her abuse at a nat
 Ruzicka v. Conde Nast Publication
s Inc., 733 F.Supp. 1289 (D. Minn. 1990).
 Ruzicka, 939 F.2d at 579
 Ruzicka v. Conde Nast Publications, Inc., 794 F. Supp. 303 (D. M
 Ruzicka v. Conde Nast Publications Inc., 999 F.2d. 131
9, 1323 (8th Cir. 1993).
 Id. at 1321.
 Id. at 1323 (quotin
g Cohen v. Cowles Media Co., 479 N.W.2d 392 (Minn. 1992)).
 573 N.Y
.S.2d 828 (N.Y. Sup. Ct. 1991).
 Id. at 830.
 In Anderson,
the court also relied on a 1989 New York appellate case, Doe v. ABC,
543 N.Y.S.2d. 455 (N.Y. App. Div. 1989), in which the
court had denied ABC's motion for
summary judgment i
n actions for breach of contract and negligence when it identified two
rape victims. The television station had promised two rap
e victims that their faces and
voices would not be id
entifiable in its story on rape. The station's efforts to conceal
their identities were inadequate. Both were identified by frie
nds and family members. The
court did grant summary j
udgment for the cause of action of intentional infliction of
 Anderson, 473 N.Y.S.2d at 832.
 780 F. Supp. 307 (W.D.Pa. 1992).
 Id. at 309.
5] Id. at 310.
 Id. at 311.
 Id. at 311 (citing Cohen v.
Cowles Media Co., 445 N.W.2d 248, 259 (Minn. App. 1989),
in which the co
urt said, "Simply because a party in the future fails to perform does not
mean that there was any misrepresentation at the
time the contract was made." At 259.)
 Id. at 309.
gon Rules on Media Access to the Persian Gulf War: Hearing Before the Senat
Committee on Governmental Affairs, 102nd Cong
., lst Sess. 327 (1991).
 Pete Willia
ms, Transcript of teleconference briefing on ground rules and guidelines
governing media coverage of the Persian Gulf War, Jan. 12, 1991.
509 F.2d 1362, 1370 (4th Cir. 1975).
 444 U.S. 507 (1980).
] Id. at 509 (1980)(citing 50 U.S.C. _ 403(d)(3)).
 Uniform Code
of Military Justice, 552 U.S.C. 552 (10,11).
 Parker v. Levy, 417
U.S. 733 (1974).
 Pentagon Rules on Media Access to the Persian Gu
lf War: Hearing Before the Senate
Governmental Affairs, 102nd Cong., lst Sess. 327 (1991)(If the reporter did
not agree with the public affairs copy review decis
ion, it could be appealed, with the
n by the reporter's editor back in the United States.)
 Cohen v. C
owles Media, 501 U.S. 663, 670 (1991).
 Cohen v. Cowles Media, 445
N.W.2d 248, 254 (Minn. App. 1989).
 Chung's interview of Kathleen
Gingrich was only one of two highly publicized
instances in which journalists allegedly broke promises of confidentiality
to sources in
early 1995. There is some disagreement
over the facts of a White House charge that New
Times correspondent Marian Burros had published off-the-record remarks by
Hillary Clinton. It is unclear what inform
ation was on the record and what was off the
Joseph Lelyveld, executive editor of the New York Times, disputed whether t
remarks used in Burros' story were off-the-record
or not, since Clinton did place on the
record some of
the remarks she made at the off-the-record luncheon with journalists.
Because what was promised was uncertain, the breach of th
e promise probably could not be
the basis for success
ful legal action. See Howard Kurtz, Sides Dig In on Hillary Quotes,
The Washington Post, Jan. 16, 1995, at B1.
 From Ne
wt's Mom's Lips to Connie Chung's Ear: A Controversy is Born, Chicago
Tribune, Jan. 4, 1995, at 2.
 Thomas B. Eds
all, Jack May Run if Clinton Won't Stand Firm, The Washington Post,
March 2, 1995, at A9.
 Morgan By and Through
Chambon v. Celender, 780 F.Supp. 307 (W.D.Pa 1992).
 Cohen v. Cowl
es Media Co., 445 N.W. 2d 248, 252 (Minn. Ct. App. 1989); Ruzicka v.
Conde Nast Publications Inc., 999 F.2d 1319, 1321 (8t
h Cir. 1993).
 Arthur Spiegelman, Gingrich Mom Interview Causes Pr
ess Storm, Reuters News Service,
Jan. 4, 1995.
 Associated Press
Managing Editors, Declaration of Ethics, 1994.