Cohen v. Cowles Media Co. Revisited:
An Assessment Of The Case s Impact So Far
by Hugh J. Martin
Michigan State University
School of Journalism
305 Communication Arts Building
East Lansing, MI. 48824-1212
Office: (517) 353-6430
Internet: [log in to unmask]
A paper submitted to the Law Division of the Association for Education in
Journalism and Mass
Communication (AEJMC), Annual Convention for 1996.
A review of 22 First Amendment cases citing Cohen v. Cowles Media Co. shows
upheld damage awards when journalists break promises of confidentiality to
victims of HIV and
sexual abuse. However, Cohen does not allow enforcement of confidentiality if
the identity of a
source already is public, or if the source failed to make the conditions of the
Cohen may also have implications for cases involving undercover reporting
When the U.S. Supreme court ruled that reporters can be sued for breaking
shield the identity of a source, a question of ethics became a matter of law
p.15). This decision allowing courts to determine the ultimate consequences of
decisions was expected to significantly alter established journalistic
Even before the decision in Cohen v. Cowles Media Co. (1991), there were
that the case signaled a need for journalists to reconsider their use of
(Horvath-Neimeyer, 1990). After the decision, there were predictions that it
lawsuits (Confidentiality, 1992) along with scholarly arguments about the
implications of the case
(Alexander, 1993; Harvey, 1992; Youm & Stonecipher, 1992). Meanwhile, courts
the United States began applying and interpreting what the Supreme Court had
This paper presents a comprehensive review of opinions that cite Cohen v. Cowles
Co. (1991) and related decisions from the case. This review, which ranges from
cases referring to
Cohen in a single footnote to decisions that rest their analysis on the
principles established by
Cohen, is the basis for an examination of how the case has so far affected the
Background of the Case
In 1982 a reporter covering the Minnesota governor s race met over a cup of
a public relations executive in the cafeteria of the state Capitol (Salisbury,
1991, p. 20). Dan
Cohen, the executive who requested the meeting, offered St. Paul Pioneer Press
Salisbury damaging information about the Democratic candidate for lieutenant
a Republican campaign advisor, demanded a promise that he not be named in
connection with the
story. Salisbury agreed, and Cohen turned over documents showing the Democratic
had twice been arrested.
Cohen also gave the documents to Lori Sturdevant, a reporter for The Star
Minneapolis. The records showed that in 1969 the Democratic candidate for
was arrested on three counts of unlawful assembly (Cohen v. Cowles Media Co.,
1990, p. 201).
The charges were dismissed. The candidate also had a 1970 conviction for petit
theft, but the
conviction was later vacated.
The records did not explain the circumstances of either arrest. The candidate
reporters the first arrest was during a protest calling for more minority
workers on municipal
construction projects. The second case occurred when the candidate, upset by
her father s recent
death, left a store with $6 in sewing materials (Cohen v. Cowles Media Co.,
1990, p. 201).
Editors at both newspapers made independent decisions to overrule the reporters
promises of confidentiality. In both newsrooms, the decision to identify Cohen
was the subject
of vigorous debate (Cohen v. Cowles Media Co., 1990, p. 201). Both reporters
objections to being forced to break their promise, and Sturdevant had her byline
The next day, both newspapers published stories naming Cohen as the source of
documents (Cohen v. Cowles Media Co., 1990, p. 201-202). The day the articles
Cohen was fired was fired from his job at an advertising firm. Cohen could not
sue for libel
because the information published about him was true. Instead, he filed suit
misrepresentation and breach of contract (Cohen v. Cowles Media Co., 1990, p.
202). The suit
against Northwest Publications, Inc., which published the St. Paul Pioneer
Press, and Cowles
Media Company, which published the Star Tribune, resulted in $200,000 in
damages and $500,000 in punitive damages (p. 199).
Appellate Decisions in the Case
The newspapers appealed the verdict to the Court of Appeals of Minnesota (Cohen
Cowles Media Co., 1989). The appeals court reversed the finding of fraudulent
and set aside the $500,000 in punitive damages. However, the court upheld the
award for breach
of contract and the $200,000 in compensatory damages.
The case then was appealed to the Minnesota Supreme Court (Cohen v. Cowles Media
Co., 1990). The court upheld the dismissal of fraudulent misrepresentation
reporters had intended to keep their promises and therefore did not
fraudulently persuade Cohen
to turn over the information. However, the court disagreed with the finding
that Cohen had a
valid contract claim.
The Minnesota Supreme Court said the agreement with Cohen had all the elements
contract-- an offer, an acceptance, and consideration ( Cohen v. Cowles Media
Co., 1990, p.
202). However, the court added that an offer of confidentiality to a source was
a question of
journalistic ethics, not a matter of law. The court said that every exchange
of promises is not
considered binding because no contract exists unless that is what both parties
intend, and ruled
Cohen s contract claim invalid (p. 203).
However, the Minnesota Supreme Court also considered whether to apply the
promissory estoppel, which can imply a lawful contract even if none has been
court explained: According to the doctrine, well-established in this state, a
promise expected or
reasonably expected to induce definite action by the promisee that does induce
action is binding if
injustice can be avoided only by enforcing the promise (Cohen v. Cowles Media
Co., 1990, p.
The Minnesota Supreme Court said the first two elements of promissory estoppel
present in the case. First, the reporters, expecting documents in return,
promised Cohen he would
remain anonymous. Second, the promise induced Cohen to hand over the documents
suffered a resulting detriment (Cohen v. Cowles Media Co., 1990, p. 204).
However, the Minnesota Supreme Court said the third element--requiring
the promise to prevent injustice--depended on whether there were valid First
to balance against the decision to break the promise. A critical factor was
that the promise was
made to a political source in a political campaign. The potentiality for civil
promises made in this context chills public debate, a debate which Cohen
willingly entered albeit
hoping to do so on his own terms (Cohen v. Cowles Media Co., 1990, p. 205).
concluded that to protect the First Amendment, parties to such agreements must
rely only on their
trust in each other.
Two of the Minnesota justices dissented, arguing that Cohen deserved damages
beach of contract or under the promissory estoppel theory. The decision, the
misused the First Amendment by allowing newspapers to avoid liability for
breaking a promise.
The result of this is to carve out yet another special privilege in favor of
the press that is denied
other citizens (Cohen v. Cowles Media Co., 1990, p. 205).
The case then was appealed to the U.S. Supreme Court (Cohen v. Cowles Media Co.,
1991). The Supreme Court reversed the decision vacating the award for breach of
remanded the case to the Minnesota Supreme Court.
The U.S. Supreme Court first addressed the question of whether it should
constitutional implications of the case because the theory of promissory
estoppel was not raised
until the case reached the Minnesota Supreme Court and because the lower court
on an interpretation of state law (Cohen v. Cowles Media Co., 1991, p. 2275).
Supreme Court rejected both arguments as irrelevant because the decision not to
promissory estoppel was based on a finding that enforcement would violate the
The U.S. Supreme Court stated that consideration of whether the constitution
state courts from enforcing a promise of confidentiality would be controlled by
established line of decisions holding that generally applicable laws do not
offend the First
Amendment simply because their enforcement against the press has incidental
effects on its ability
to gather and report the news (Cohen v. Cowles Media Co., 1991, p. 2276). The
that these cases require the press to legally acquire information for
publication. The press has no
special privilege that allows it to break the law, or infringe on other people s
The U.S. Supreme Court held that Minnesota s promissory estoppel doctrine is a
general applicability (Cohen v. Cowles Media Co., 1991, p. 2276). The court
explained that the
law applies to all citizens equally without singling out the press.
The U.S. Supreme Court added that upholding the compensatory damage award would
not punish the newspaper for publishing legally obtained information. Rather,
the award was
constitutionally indistinguishable from a generous bonus paid to a confidential
(Cohen v. Cowles Media Co., 1991, p. 2276). The court added that it was not
newspapers legally obtained Cohen s name for purposes of publication because
they made a
promise they failed to honor (p. 2276-2277).
The U.S. Supreme Court also held that reinstatement of the damage award did not
state action intended to control the content of newspapers by enforcing a
penalty for publication.
Both parties agreed to take on legal obligations, and any restrictions which
may be placed on the
publication of truthful information are self-imposed (Cohen v. Cowles Media
Co., 1991, p.
The U.S. Supreme Court noted that Cohen did not try to use promissory estoppel
the legal requirements for establishing a libel claim. The damages sought were
for breach of
contract, not injury to reputation (Cohen v. Cowles Media Co., 1991, p. 2277).
However, the U.S. Supreme court declined to reinstate the $200,000 damage award,
saying the Minnesota Supreme Court must decide whether Cohen had met the state s
standard for establishing a promissory estoppel claim. The U.S. Supreme Court
Minnesota s constitution might be interpreted as shielding the press from a
claim, and remanded the case for further action (Cohen v. Cowles Media Co.,
1991, p. 2277).
The Minnesota Supreme Court reconsidered the case in Cohen v. Cowles Media Co.
(1992). The court ruled that Cohen had established the elements of promissory
reinstated the $200,000 damage award resulting from the broken promise.
The Minnesota Supreme Court rejected the newspapers argument that a free press
provision in Minnesota s constitution provided broader protection than the First
Therefore, nothing in the state constitution barred Cohen s claim (Cohen v.
Cowles Media Co.,
1992, p. 390-391).
The Minnesota Supreme Court then turned to the question of promissory estoppel.
court stated that once a promise is made and the expected action takes place,
whether the promise must be enforced to prevent injustice becomes a question of
questions are decided by courts. The court stated, What is significant in this
case is that the
record shows the defendant newspapers themselves believed that they generally
promises of confidentiality given a news source (Cohen v. Cowles Media Co.,
1992, p. 391).
The court then held that the importance of honoring promises of confidentiality
resulting harm to Cohen required a remedy to prevent injustice.
Legal Implications of the Case
Application of Contract Law
The Minnesota Supreme Court s first decision in Cohen v. Cowles Media Co. (1990,
202) identified three elements of a contract as (a) an offer, (b) acceptance,
and (c) consideration.
Black s (1979) defines each of these elements. An offer is proposing to do
manifesting the willingness to enter into a bargain (p. 76). Acceptance of the
contract offer is
defined as compliance with the terms and conditions of the offer that was made
(p. 12). A
consideration is the motive, or inducement for agreeing to the contract (p.
277). This can take the
form of a benefit received by someone, or the agreement to forgo some legal
A contractual promise can be oral (Griffith & Reiser, 1991, p. 36-38). The key
whether there was mutual assent (p. 38) to the terms of the promise. In
addition, a promise is
only a contract when it becomes legally enforceable (p. 24-26).
One legal doctrine that can be used to enforce a promise is estoppel. This
prevents someone from causing injury by misleading others about actions the
individual plans to
take (Ludes & Gilbert, 1964, p. 289).
The law of estoppel can be applied to provide restitution when a contract is
(Friedman, 1981, chap. 2). Restitution is sought when someone suffers a loss
because of the
bargain they made. The special remedy of promissory estoppel offers
restitution when someone
relies on a promise to their detriment. . This doctrine allows enforcement of
the promise when
necessary to avoid an injustice, even if there was no consideration involved (p.
106). That is
because under promissory estoppel, the remedy is based on the extent to which
the promise was
relied upon, not on the terms of the promise.
According to Alexander (1993, p. 10) the application of promissory estoppel
finding that three elements are present. First, there must be a promise that
relied upon. Second, the person relying on the promise must have had a reason
to expect that
they could. Third, the only way to avoid an injustice is by enforcing the
Alexander (1993, p. 10) described how the decision in Cohen turned on the third
of this test. The Minnesota Supreme Court balanced enforcement of the promise
against free press rights, concluding that enforcement would violate the
However, the U.S. Supreme Court rejected the argument that applying promissory
would violate the First Amendment.
Successful application of the three-part test for promissory estoppel can be
result in damage awards that are intended to restore the injured party to the
position they would
have been in if no contract was made (Alexander, 1993, p. 11). This means the
Court decision in Cohen offers sources a legal weapon when journalists or news
break promises of confidentiality (p. 15).
A Potential Basis for Privacy Actions
Another commentator argues the U.S. Supreme Court decision in Cohen has
implications for the development of legal theory. Harvey (1992) contends that
Cohen is part of a
line of cases suggesting a way to revive what he calls the dead tort for
invasion of privacy.
Currently, invasion of privacy suits against the press require balancing the
vague elements of
privacy against free press rights. First Amendment rights are so highly valued
interests inevitably lose, Harvey contends.
Cohen, however, is an example of a case where the question at issue was a breach
confidence, not an invasion of privacy. Harvey (1992) argues that an effective
modeled after English law, would be based on a requirement to keep promises not
private facts. That way questions of responsibility, and resulting lawsuits,
would focus on the
person who made the disclosure, not on the constitutionally-protected press.
Possible Effects on Journalistic Practice
Commentators disagree about how Cohen ultimately will affect journalistic
Alexander (1993, p. 10) argues that lower courts might reintroduce a balancing
test or limit the
enforcement of promises to sources by applying other limitations on the
enforcement of contracts.
For instance, he points out that misrepresentation, fraud, threats, questions
about capacity, and
undue influence all can limit enforcement of a contract.
However, Youm and Stonecipher (1992, p. 64) argue that the U.S. Supreme Court
its Cohen decision when some journalists were questioning traditional
commitments to keep
promises of confidentiality. Journalists have gone to jail to keep such
promises. Youm and
Stonecipher explained that journalists viewed confidentiality as an ethical
responsibility that was
vital to persuading potential sources to come forward with information.
Journalists also regarded
such promises as a way to maintain their independence and ability to investigate
However, when Cohen was decided some journalists had begun to disregard such
arguing that public interest demanded disclosure of the source of information.
Youm and Stonecipher (1992, p. 85-88) argue that in Cohen the U.S. Supreme Court
gave short shrift to the fact that reporters promises to sources are made
against a complex
backdrop of subtle or implied understandings. The traditional explicit
conditions and assurances
found in commercial contracts are rarely present. The decision also failed to
define the so-called
incidental effect upon the press from enforcing such promises. Instead, Youm
argue, Cohen throws questions of enforcement back to the states where courts
whether promises are enforceable contracts may reject any presumption in favor
of the press.
This paper, acknowledging the importance of the case and the debate that it
represents an examination of the effects to date of the U.S. Supreme Court
decision in Cohen..
The examination is based on a review of all cases citing Cohen that are listed
in relevant editions
of Shepard s United States Citations and the most recent available supplements.
A search of
citations was conducted using Cohen v. Cowles Media Co. (1991) as the starting
point. As of
mid-March, the search produced cites in three volumes (Shepard s 1994; Shepard s
Shepard s 1996). The case also was Shepardized using the LEXIS database. The
during this search are the basis for this paper.
The search produced a total of 32 opinions in 27 cases where Cohen has been
chart, Appendix A). The cases can be broadly divided into 22 that deal with
issues, four cases in the area of contract law and one criminal case. The
contract and criminal
cases are described separately in Appendix B.
First Amendment Cases
Six of the First Amendment cases involve promises of confidentiality that
to their sources. In five of those cases, the promise was a central issue and
in the sixth case it
prompted a significant legal argument. In three cases, decisions resulted from
almost entirely on Cohen.
The First Case Based on Cohen
In Anderson v. Strong Memorial Hospital (1991) the Supreme Court of New York
newspaper liable for breaking its promise to conceal the identity of an HIV
patient. The opinion
relied on the U.S. Supreme Court s Cohen decision.
Cornell Anderson was identified by friends and family from a photograph
published by the
Gannett Company, Inc. s Democrat & Chronicle in Rochester, NY. A reporter and
had promised that Anderson would not be identified. The photograph of a doctor
Anderson was published with a cutline that identified Dr. William Valenti of
Hospital's Infectious Disease Unit examining a patient. The cutline stated,
responsibility is caring for AIDS patients (Anderson v. Strong Memorial
Hospital, 1991, p.
830). At that time Anderson was HIV positive, but he did not have AIDS.
Anderson sued the hospital and doctor for breaching their confidential
relationship with a
patient. Anderson subsequently died, but his estate was awarded damages of
doctor and hospital then filed a third-party suit against the newspaper arguing
that it should either
contribute to or cover the cost of the damages (Anderson v. Strong Memorial
Hospital, 1991, p.
830). The Supreme Court of New York ruled that the U.S. Supreme Court decision
allowed such lawsuits under the First Amendment.
The Supreme Court of New York then turned to the question of whether the state s
constitution might block such a suit. The court noted that New York s
constitution has been
interpreted to grant broader press protection than the First Amendment.
However, the court held
that there is no strong public interest in knowing the identity of someone who
is HIV positive or
suffering from AIDS (Anderson v. Strong Memorial Hospital, 1991, p. 831).
Referring to state
law and court decisions, the ruling explained that public policy created a state
interest in keeping
confidential the identity of such patients.
The Supreme Court of New York added that the U.S. Supreme Court decision in
meant an unkept promise to a news source makes the press' conduct unlawful
Strong Memorial Hospital, 1991, p. 832). The New York court compared the
conduct to a television photographer entering someone s home without permission.
The newspaper had voluntarily agreed not to identify Anderson, the Supreme Court
New York said. It would be illogical and legally incongruous to hold that
Valenti and Strong are
responsible for the broken promise made to the plaintiff but that Gannett, the
promisor, is not
(Anderson v. Strong Memorial Hospital, 1991, p. 832).
The Supreme Court of New York court added that the newspaper had commented in an
editorial on the U.S. Supreme Court s Cohen decision that the First Amendment
does not allow
the press to lie about its promises. The court quoted the editorial s assertion
that, If people
didn't trust us, they wouldn't tell us anything. Then we couldn't print the
truth, and you couldn't
read it (Anderson v. Strong Memorial Hospital, 1991, p. 833).
The Second Case Based on Cohen
Another case that relied on the U.S. Supreme Court s Cohen decision was Ruzicka
Conde Nast Publications, Inc. (1991). In this case, the U.S. Court of Appeals
for the Eighth
Circuit ordered a district court to apply the promissory estoppel test when
deciding whether a
woman could recover damages because a magazine allegedly broke its promise not
to identify her
in a published article.
Jill Ruzicka filed the suit after Glamour magazine published a story describing
of sexual abuse by a psychiatrist. Ruzicka had agreed to be interviewed so long
as she could not
be identified from the article. The story identified her as Jill Lundquist
(Ruzicka v. Conde
Nast Publications, Inc., 1991, p. 580). The article included accurate details
of her background,
including the fact that Ruzicka was a Minneapolis attorney who had sued the
abused her. The article also explained she had served on a state task force
that helped write a law
making sexual exploitation by therapists a crime. Ruzicka argued that two of
therapists identified her from the article, but admitted that both were familiar
with the details of
A U.S. District Court dismissed a claim for breach of contract filed by Ruzicka,
U.S. Court of Appeals upheld that decision. However, the appeals court agreed
to consider a
promissory estoppel claim that Ruzicka raised on appeal (Ruzicka v. Conde Nast
Inc., 1991, p. 582).
The U.S. Court of Appeals pointed out that the U.S. Supreme Court s Cohen
was made after Ruzicka began her appeal of the district court rulings in the
case. The appeals
court stated that it would be somewhat incongruous (Ruzicka v. Conde Nast
1991, p. 583) not to let Ruzicka press a promissory estoppel claim after Cohen
was allowed to
pursue a similar claim although it was never formally made. Ruzicka s suit was
remanded to the
district court for a decision on the merits of the promissory estoppel claim (p.
However, in Ruzicka v. Conde Nast Publications, Inc. (1992) the U.S. District
the District of Minnesota, Fourth Division, rejected the promissory estoppel
claim and granted
Conde Nast s motion for summary judgment.
The U.S. District Court first considered whether the promise of confidentiality
and definite. This was the standard adopted by the Minnesota Supreme Court
after Cohen was
remanded from the U.S. Supreme Court. The U.S. District Court said the clear
standard was stricter than the standard of reasonable certainty (Ruzicka v.
Publications, Inc., 1992, p. 308) required under contract theory. The district
court held that the
promise Ruzicka would not be identifiable was less definite than the promise to
Cohen that he
would not be identified at all.
The U.S. District Court, quoting from its first decision in the case, reasoned
...a promise of unidentifiability raises difficult questions of definition and
because just what will make a private figure identifiable depends on the
known by that person s friends and acquaintances. A reporter, for the most
know what information will threaten the anonymity of a source unless the source
what facts should not be published (Ruzicka v. Conde Nast Publications, Inc.,
The U.S. District Court concluded the promise to shield Ruzicka s identity was
sufficiently clear to meet the promissory estoppel standard (Ruzicka v. Conde
Inc., 1992, p. 309)
The U.S. District Court did state that Ruzicka had produced evidence of stress
earnings resulting from publication of the article. Therefore, there was a
whether Ruzicka had relied on the promise to her detriment (Ruzicka v. Conde
Inc., 1992, p. 310). However, the district court concluded it was not necessary
to enforce the
promise to prevent an injustice. The court said the defendants...attempted to
mask plaintiff s
identity, but, in plaintiff s opinion, failed to accomplish their goal (p.
311). Cohen, however, was
identified because of a deliberate breach of a promise, the district court said.
The district court
concluded that enforcing the promise to Ruzicka could create injustice by
placing on editors and
reporters the impossible burden of guessing at what steps such a promise
requires. Therefore, the
Court holds that plaintiff cannot satisfy the third element of a promissory
estoppel claim (p. 311).
Ruzicka appealed the ruling and the U.S. Court of Appeals for the Eighth Circuit
the district court, remanding the case for plenary trial (Ruzicka v. Conde Nast
Inc., 1993). The appeals court said the district court was mistaken when it
used a clear and
definite (p. 1321) standard to examine the promise made by Glamour. The
appeals court said
that Minnesota law, including decisions involving the Cohen case, established
the use of a flexible
standard under promissory estoppel. This standard only requires a showing that
should reasonably have expected its promise to induce another's detrimental
action (p. 1321)
and is therefore less formal than the rules of offer and acceptance governing
However, the appeals court added that the reporter s promise to Ruzicka was
clear enough to
comply with the strictest standard (p. 1321).
The U.S. Court of Appeals held the promise was clearly intended to mean a
reader could not identify Jill Ruzicka by factual description (Ruzicka v.
Publications, Inc., 1993, p 1321). The appeals court added that Ruzicka s claim
was not based
on disclosure of facts she voluntarily provided for publication (p. 1322). The
claim instead was
based on references to her as an attorney who served on the task force on
Ruzicka claimed these identifying facts were discovered independently by the
The U.S. Court of Appeals stated that the elements of promissory estoppel are
dependent, they necessarily involve fact-finding and require inquiry into the
surrounding the making of the promise and the promisee's reliance (Ruzicka v.
Publications, Inc., 1993, p. 1322) on those circumstances. Therefore, the case
was remanded to
the U.S. District Court for a plenary trial to determine whether, in fact, the
promise existed and
Ruzicka relied upon the promise.
However, the U.S. Court of Appeals added that the third element of promissory
whether failure to enforce the promise would result in an injustice, was a
matter of law (Ruzicka
v. Conde Nast Publications, Inc. , 1993, p. 1323). The appeals court--citing
Supreme Court s Cohen decision after remand from the U.S. Supreme
promise to Ruzicka should be enforced to prevent injustice unless Conde Nast
a compelling need to break the promise (p. 1323). The appeals court noted that
Ruzicka told the
reporter she was a victim of incest, a fact never made previously public, after
promise not to be identified. In addition, a draft of the article that Ruzicka
approved did not
include the details that she claimed had identified her.
The Third Case Based on Cohen
In Morgan v. Celender (1992) the U.S. District Court for the Western District of
Pennsylvania rejected a claim of fraud and invasion of privacy resting partly
on the U.S.
Supreme Court s Cohen decision. Diane Morgan Chambon sued the Gannett
and the Valley News Dispatch after the newspaper published a photograph of
Chambon with her
daughter, who allegedly had been sexually abused by a former police chief.
that the newspaper broke a promise that she and her daughter, a minor, would
only be shown in
silhouette. She also claimed that a reporter promised that what she said in an
interview would be
off the record.
The fraud claim, which was based on the U.S. Supreme Court s decision in Cohen,
dismissed for lack of evidence. The U.S. District Court added that even if a
confidentiality was made and broken, that did not constitute fraud under
(Morgan v. Celender, 1992, p. 311). The district court said the Supreme
Court s Cohen decision
only established the possibility of prevailing in a suit for promissory
estoppel. The district court
added that before Cohen reached the Supreme Court, the Minnesota Court of
Appeals held that
the breach of the agreement by the newspaper did not establish a cause of action
misrepresentation (Morgan v. Celender, 1992, p. 311). That decision was
by Minnesota s supreme court.
The U.S. District Court dismissed Chambon s invasion of privacy claim because
published in the interview and photograph were part of the public record in
against the former police chief (Morgan v. Celender, 1992, p. 309-310).
Accusations that a
minor was abused by a police officer are a matter of legitimate public concern,
the district court
The U.S. District Court stated that Chambon herself had released the information
others besides the reporter. The court stated, it matters not, in our
judgment, that the
information and photograph may have been obtained illegally, unethically or
deceptively by the
reporter (Morgan v. Celender, 1992, p. 310). Chambon had not established any
should be considered by a jury in regard to the privacy claim.
Other Confidentiality Cases Citing Cohen
The remaining three cases involving promises of confidentiality include a case
from a signed contract between a filmmaker and a source. In Wildmon v. Berwick
Pictures (1992) the U.S. District Court for the Northern District of Mississippi
rejected a claim
for breach of contract involving an interview for a documentary film. Donald
Wildmon of the
American Family Association sued to stop U.S. distribution of a British film
that included an
interview with Wildmon and depictions of art he objected to such as Andres
Christ"--which shows a Crucifix submerged in urine--and photographs by Robert
The lawsuit was based on a signed agreement between Wildmon and the film s
The agreement stated that Wildmon s interview would not be given to
magazines or to any other media outlet without written permission from the
Association (Wildmon v. Berwick Universal Pictures , 1992, p. 1171). The
covered outtakes from the interview.
Wildmon filed suit after learning the film, which had been broadcast in Europe,
to be shown in the United States. The suit contended distribution of the film
without Wildmon s
permission would be a breach of contract. However, the U.S. District Court
agreement was ambiguous (Wildmon v. Berwick Universal Pictures, 1992, p.
agreement could be interpreted as preventing distribution of the interview
anywhere except as part
of the film s broadcast in Great Britain. However, the agreement also could be
read as only
preventing distribution of the Wildmon footage for use in other productions.
The district court
said that contract law requires that the interpretation of ambiguous agreements
against the person who drafted them--in this case Wildmon. The district court
held that Wildmon
should have clearly stated his intentions if he wanted to ensure the film was
viewed only by British
audiences without his permission (p. 1177).
The U.S. District Court said that under the U.S. Supreme Court s Cohen decision,
was no limit to Wildmon s contractual rights just because the film was produced
viewing (Wildmon v. Berwick Universal Pictures, 1992, p. 1177). However, the
added, Cohen does not relieve a drafter of the responsibility of making the
contract clear (p
A Promise to an AIDS Patient
Another case is Multimedia WMAZ, Inc. v. Kubach (1993) where the Court of
Georgia sustained a jury s award of $500,000 in damages to a man with AIDS who
television station for invasion of privacy. The suit was based on a mistake in
setting the level of
digitization, which resulted in the man being identifiable during a live
broadcast. The station,
which promised to conceal the man s identity, corrected the problem after 7
The Court of Appeals of Georgia held the man did not waive his right to privacy
told friends he had AIDS and when he appeared on another television show where
his identity was
concealed (Multimedia WMAZ, Inc. v. Kubach, 1993, p. 493-495). The appeals
rejected an argument that the disclosure was protected because it concerned a
matter of public
interest. The appeals court said that the U.S. Supreme Court s Cohen decision
means the First
Amendment does not prohibit recovering damages for failing to conceal an AIDS
when the station promised not to identify him.
The Court of Appeals of Georgia did vacate a punitive damage award of $100
(Multimedia WMAZ, Inc. v. Kubach, 1993, p. 495-496). However, the appeals court
other arguments that the trial court had erred by (a) dismissing potential
jurors who expressed
bias against homosexuals, (b) allowing the jury to consider the patient s lost
wages from a dry
cleaning job, and (c) ruling that damage to reputation is not necessary to prove
Protecting an AIDS Patient s Privacy
The last case involving promises to conceal a source s identity is Doe v. Shady
Adventist Hospital (1991) where the Court of Special Appeals of Maryland issued
protecting the identity of a dying AIDS patient. The patient sued the hospital
for invasion of
privacy because staff members allegedly gave the patient s family and friends
information about his condition. The special appeals court was asked to
determine if the suit
should be tried in an open courtroom. The court attempted to balance the
patient s privacy
interests against previous findings that trials should be public. The special
appeals court issued an
order redacting the patient s name from records in the case, and forbidding use
of his name during
The Court of Special Appeals cited the U.S. Supreme Court s Cohen decision as a
for rejecting arguments that the patient waived his right to privacy by
granting interviews to
newspapers and television stations (Doe v. Shady Grove Adventist Hospital, 1991,
p. 514- 515).
The patient had granted the interviews only after demanding anonymity, and none
journalists revealed his name. The special appeals court said Cohen made such
enforceable, so there was no waiver of the patient s right to conceal his
An Suit for Invasion of Privacy
The Cohen case also was mentioned in a privacy suit that did not involve a
confidentiality. In Scheetz v. Morning Call (1991) the U.S. Court of Appeals
for the Third
Circuit upheld the dismissal of an invasion of privacy suit filed by a police
officer and his wife.
The couple sued the Morning Call of Allentown, PA., for publishing an article
incident where the officer struck his wife. The article based its description
of the incident on
confidential police reports obtained by a reporter. The reporter obtained the
documents after the
local police chief named officer Kenneth Scheetz Officer of the Year (p.
The U.S. Court of Appeals affirmed dismissal of the suit because the officer s
reported the incident to police, so she could not reasonably expect the
information to remain
secret (Scheetz v. Morning Call, 1991, p. 207). The ruling stated that police
did not need her
consent to press charges, so information in the confidential reports did not
A dissent argued that the Scheetzes did have a constitutional privacy interest,
cited the U.S. Supreme Court s Cohen decision (Scheetz v. Morning Call, 1991, p.
The dissenting U.S. Court of Appeals judge argued that Cohen hinted (p. 213)
at a requirement
that reporters must lawfully obtain truthful information. The dissent argued a
possession of information contained in confidential police reports raised
questions about whether
the information was legally obtained.
Defamation Cases Citing Cohen
There are six defamation cases citing Cohen. Two of the cases involve the use
cameras and surreptitious reporting techniques. The first case is Food Lion
Inc. v. Capital
Cities/ABC, Inc. (1995), where the U.S. District Court for the Middle District
of North Carolina
acted on a defense motion to dismiss allegations of criminal conduct including
trespass and fraud. The Food Lion grocery chain sued for damages and for
injuries to its
reputation after a story was broadcast on the ABC news program Prime Time Live.
broadcast reported on sanitary practices in Food Lion stores, and included
footage from hidden
cameras taken by ABC employees that the grocery chain hired under false
journalists, aided by a union attempting to organize the grocery chain, had
histories and references that enabled them to get Food Lion jobs.
The U.S. District Court dismissed Food Lion s complaints alleging the news
violated federal RICO laws while engaging in mail and wire fraud. The district
court said the acts
did not constitute a pattern of offenses as defined by RICO laws (Food Lion Inc.
Cities/ABC, Inc., 1995, p. 820). The district court also adopted a magistrate s
to dismiss a claim that Prime Time Live violated federal wiretap laws. However,
other claims of
fraud, trespass, and civil conspiracy were allowed to stand.
The U.S. District Court said the U.S. Supreme Court s Cohen decision allowed
to recover damages for violations of laws on trespass, fraud, and North
Carolina s statute on
unfair and deceptive trade practices (Food Lion Inc. v. Capital Cities/ABC,
Inc., 1995, p. 821-
824). The district court said these are generally applicable laws which do not
single out the press.
However, the district court added that Cohen distinguishes the kind of damages
that can be
collected for violations of laws of general application--Food Lion could only
recover for non-
reputational damages. Food Lion doesn t dispute the truth of the information
that was broadcast,
so it cannot recover for damages to its reputation, the district court said.
The U.S. District Court added that it believed Food Lion was at least in part,
to recover for injury to its reputation while staying clear of the strict
requirements of a defamation
claim (Food Lion Inc. v. Capital Cities/ABC, Inc., 1995, p. 823). Therefore,
Food Lion was
required to establish the broadcast was false and made with actual malice before
it could recover
any damages to its reputation.
The suggestion that Cohen allows recovery of damages from journalists who use
undercover techniques also was made in the second case, Desnick v. American
Companies, Inc. (1995). In this case, the U.S. Court of Appeals for the Seventh
Circuit allowed a
doctor to proceed with a libel suit based on a broadcast of the ABC s Prime
However, the appeals court dismissed the doctor s claims of trespass, invasion
violation of wiretap laws and fraud.
The case arose from an investigation of the Desnick Eye Center, which has
offices in four
states where more than 10,000 cataract operations are performed each year
(Desnick v. American
Broadcasting Companies, Inc., 1995, p. 1347). Many of the operations involve
The broadcast alleged that decisions in the clinic were driven by profit at the
expense of patient
well being (p. 1349-1351). The U.S. Court of Appeals said an allegation in the
examining machines were rigged to indicate that patients had cataracts might be
remanded the claim for trial.
However, the U.S. Court of Appeals ruled the use of hidden cameras by
as patients did not constitute trespass, invasion of privacy, or violation of
(Desnick v. American Broadcasting Companies, Inc., 1995, p. 1352-1353). The
court of appeals
said the taping took place in offices open to the public, and only revealed
information relevant to
questions about how the clinic conducted its business.
The U.S. Court of Appeals also dismissed a claim that journalists fraudulently
not to use hidden cameras because Illinois law only provides remedies for
that are part of a scheme to defraud (Desnick v. American Broadcasting
1995, p. 1354). The court of appeals said there is no clear distinction between
promise and a scheme of such fraud, but added that skepticism, not a lawsuit,
was the appropriate
remedy in this case. The doctor who owns the clinics should have been aware he
could not trust
investigative reporters well known for ruthlessness (p. 1345).
The U.S. Court of Appeals noted that the U.S. Supreme Court s Cohen decision
established that the press is not immune from liability for contracts (Desnick
Broadcasting Companies, Inc., 1995, p. 1355). The doctor, however, had no legal
state law because the journalists unscrupulous tactics did not invade such
The third defamation case is Moldea v. New York Times Co. (1992) where the U.S.
Supreme Court s Cohen decision surfaced repeatedly in a lawsuit for libel and
invasion of privacy
filed by an author who received an unfavorable review. However the case turned
on other legal
The U.S. District Court for the District of Columbia rejected a request, based
to add a claim for breach of contract to the libel suit. The district court
said the U.S. Supreme
Court s Cohen decision only concerned the application of state law to a broken
confidentiality. The district court said Cohen in no way affects First
Amendment analysis of an
individual s libel claim against a media defendant (Moldea v. New York Times
Co., 1992, p. 1).
However, the U.S. Court of Appeals for the District of Columbia subsequently
the U.S. District Court s summary judgment in favor of the newspaper on the
invasion of privacy claims (Moldea v. New York Times Co., 1994a). The appeals
describing as sloppy journalism (p. 1326) Moldea s book investigating
connections between the
National Football League and gambling implied facts that might be proven false.
court said Moldea s claim of libel would turn on whether this accusation was
The U.S. District Court of Appeals also reversed the U.S. District Court s
Moldea must demonstrate the publication of private facts to prevail in his claim
the review cast
him in a false light (Moldea v. New York Times Co., 1994a, p. 1331). The
appeals court said a
claim of false light depends only on proving the review was published with
(p.1331) for whether it falsely depicted Moldea in an offensive way. However,
the appeals court
(p. 1332) added that other cases, including the U.S. Supreme Court s Cohen
decision, have held
that privacy claims cannot be used to avoid the standard of proof required in a
Then, in Moldea v. New York Times Co. (1994b) the U.S. Court of Appeals for the
District of Columbia reversed its earlier decision. The appeals court said it
mistakenly ignored the
fact that the allegedly defamatory statements appeared in a book review. This
meant that any
statements of opinion based on an interpretation of material in the book could
not be considered a
basis for a libel action. The appeals court again cited the U.S. Supreme
Court s comment in
Cohen prohibiting the use of privacy actions to avoid the burden of proof
required in libel cases
The fourth defamation case is Washington v. Smith (1995) where the U.S. District
for the District of Columbia dismissed a libel suit against the publishers of
Dick Vitale s 1993-94
College Basketball Preview. Marion E. Washington, coach of the Kansas women s
she was defamed by a comment that her team was talented but she usually finds
a way to screw
things up (p. 61). The district court, applying the standard from Moldea v.
New York Times Co.
(1994b), said underlying facts in the guide could reasonably be interpreted to
statement about the coach (Washington v. Smith, 1995, p. 63-64).
The U.S. District Court also dismissed allegations of invasion of privacy and
infliction of emotional distress. The district court cited the U.S. Supreme
Court s Cohen decision
as one of the cases barring the use of related actions to avoid the requirements
(Washington v. Smith, 1995, p. 64).
The fifth defamation case is Geick v. Kay (1992) where the Appellate Court of
the Second District upheld the dismissal of a former village administrator s
libel and privacy suit
against the president of the village governing board. The suit alleged the
board president violated
a separation agreement by making public statements that (a) implied a lack of
trust in the former
administrator and (b) disclosed the settlement of a sexual harassment suit
administrator. The separation agreement promised that no one would make public
about the circumstances of the administrator s resignation.
The appeals court ruled that the statements by the board president were related
duties and therefore had absolute privilege. The appeals court rejected an
argument that the
U.S. Supreme Court s Cohen decision barred the defense of privilege (Geick v.
Kay, 1992, p.
878-879). The appeals court stated that Cohen certainly has nothing to do with
privilege as a defense in a libel action, but merely holds that the first
amendment does not prevent
a promissory estoppel action against the press (p. 879).
The sixth defamation case is Lence v. Hagadone Inv. Co. (1993) where the Supreme
Court of Montana dismissed a libel and privacy suit filed by a lawyer who was
the subject of
unfavorable newspaper reports. John A. Lence alleged the Inter Lake Publishing
inaccurately on a professional complaint against him. The complaint was
dismissed. The lawsuit
also cited articles on a subsequent, unrelated building code violation.
The Supreme Court of Montana ruled the article on the complaint was privileged
it involved a proceeding of the state Supreme Court s Commission on Practice
Hagadone Inv. Co., 1993, p. 443). The supreme court also found that all of the
articles cited in
the suit were substantially true.
Lence argued that he should be allowed to file a negligence claim by referring
to the U.S.
Supreme Court s statement in Cohen that the First Amendment does not allow
invade the rights of others (Lence v. Hagadone Inv. Co., 1993, p. 445-446).
Lence contended the
newspaper had a duty to determine whether the allegations in the professional
true, and to keep the complaint confidential. The Supreme Court of Montana
argument, saying the newspaper had no such duty. The reporter s role was
merely to let the
public know that an investigation had been initiated, not to undertake an
investigation herself (p.
Three Regulation of Speech Cases Citing Cohen
The first case is Lind v. Grimmer (1993) where the U.S. District Court for the
Hawaii held unconstitutional a law prohibiting disclosure of official complaints
spending. The law prohibited disclosure by participants and nonparticipants in
resulting from complaints filed with the Hawaii Campaign Spending Commission.
complaints could only become public if the commission issued a finding of
probable cause, or if
the person named in the complaint disclosed its existence. The case originated
when the editor of
a political newsletter published information about a complaint he filed, and was
violating the law.
The U.S. District Court held the law was intended to restrict the content of
Therefore, the law was subject to strict scrutiny to determine whether it
involved a compelling
state interest and used the least restrictive means to protect that interest
(Lind v. Grimmer,
1993, p. 1333). The district court concluded the state s interest did not
justify First Amendment
restrictions (p. 1334-1336). In addition, the law was overbroad because it
applied to third parties
who had nothing to do with the complaint and because complaints remained
confidential after the
Commission made a determination there was no probable cause.
The U.S. District Court rejected the state of Hawaii s argument that the U.S.
Court s Cohen decision should control the case because when the editor filed a
agreed to the requirement that he keep it confidential. In return, the editor
was able to invoke the
state s power of investigation (Lind v. Grimmer, 1993, p. 1329). The U.S.
District Court said the
case differed from Cohen in two respects. First, the editor did not consent to
requirement--he had no choice but to follow the rule. Second, the test for a
interest, which was applicable to Hawaii s law, was not present in the Cohen
Subsequently, the U.S. Court of Appeals for the Ninth Circuit (Lind v. Grimmer,
upheld the finding that Hawaii s law was unconstitutional. The appeals court
agreed the law was
intended to restrict the content of political speech. The appeals court also
rejected the argument
that the U.S. Supreme Court s Cohen decision allowed prosecution of the editor
The appeals court said Cohen only applies to content neutral restrictions of
The second regulation case is Simon & Schuster v. New York State Crime Victims
(1991) where the U.S. Supreme Court struck down New York state's so called Son
of Sam (p.
476) law. The law required anyone accused or convicted of a crime to turn over
any work describing the crime to the state's Crime Victims Board. The board
placed the money in
escrow for victims. The Supreme Court said the law used a financial burden to
single out specific speech.
The Crime Victim s Board had argued that the Son of Sam law imposed a general
on any entity contracting with a convicted person to transmit that person's
speech (Simon &
Schuster v. New York State Crime Victims Board, 1991, p. 488). To support this
victim s board cited the U.S. Supreme Court s statement in Cohen that
enforcement of generally
applicable laws against the press is not subject to special scrutiny. However,
The U.S. Supreme
Court rejected this argument saying government power to impose burdens on speech
vary with identity of the speaker. The Supreme Court said the argument that the
law did not
target members of the media was therefore irrelevant (p. 488).
The third regulation case is Turner Broadcasting System, Inc. v. Federal
Commission. (1994) where the U.S. Supreme Court upheld federal requirements that
operators carry local commercial and public television stations. The Supreme
regulations in the Cable Television and Consumer Protection and Competition Act
of 1992 were
content neutral and intended to fulfill an important government
television programming. However, the Supreme Court also said the government had
demonstrated that the regulations would be effective, and remanded the case to a
Court for further proceedings on that point.
The U.S. Supreme Court cited its decision in Cohen while discussing which
scrutiny should be applied to the cable regulations. The Supreme Court said the
should not be subject to strict scrutiny, but they also were not a generally
applicable law with
incidental effects on the press as was the case in Cohen (Turner Broadcasting
System, Inc. v.
Federal Communications Commission, 1994, p. 33-34.) The Supreme Court said an
standard of scrutiny was appropriate.
Three Cases Involving Subpoenas that cite Cohen
The first case is United States v. Cutler (1993) where the U.S. Court of Appeals
Second Circuit detailed the information an attorney could subpoena from
reporters in a criminal
contempt proceeding. The appeals court held that defense attorney Bruce Cutler
reporters testimony, notes and videotape outtakes relating to published
statements that Cutler
made during the trial of John Gotti. The statements were the basis of
accusations that Cutler
committed contempt by violating a federal judge s warnings not to make public
release information that might prejudice the outcome of the Gotti trial.
However, the U.S. Court of Appeals rejected Cutler s arguments that the
should also be compelled to release information about interviews with
sources. Cutler argued that the U.S. Supreme Court s Cohen decision was one of
establishing that reporters cannot withhold information about confidential
sources (United States
v. Cutler, 1993, p. 71).
The U.S. Court of Appeals said journalists can be ordered to disclose sources
a clear and specific showing that the information is: highly material and
relevant, necessary or
critical to the maintenance of the claim, and not obtainable from other
available sources (United
States v. Cutler, 1993, p. 71). The appeals court said the identity of
government sources was
irrelevant to the question of whether Cutler violated the judicial order.
The second case is State ex rel. Healy v. McMeans (1994) where the Court of
Appeals of Texas ordered a county court judge to vacate an order quashing four
journalists. The appeals court said it would issue a writ of mandamus if the
judge did not
comply. The subpoenas were for testimony and videotape from television
journalists who had
reported on accusations that a funeral home operator dumped a corpse.
The Court of Criminal Appeals said the prosecutor had no other remedy available
accused was acquitted without testimony from the journalists. The appeals court
also stated the
county judge had a ministerial duty (State ex rel. Healy v. McMeans, 1994,p.
775) to vacate
the order quashing the subpoenas because Texas rules of evidence do not create a
journalists. The appeals court added that the U.S. Supreme Court s Cohen
that the press does not have a constitutional privilege to withhold relevant
information in a
The third case is Management Information v. Alyeska Pipeline Serv. Co. (1993)
U.S. District Court for the District of Columbia issued an order that an
could not be forced to give a deposition in a civil suit. The Alyeska Pipeline
which operates the Trans-Alaska Pipeline System, was being sued by an oil broker
using illegal tactics to stop complaints about Alyeska's environmental abuses.
attempted to force the reporter s testimony as part of its defense that the
broker who filed the suit
had acquired company documents illegally.
The U.S. District Court said the U.S. Supreme Court s Cohen decision shows that
Amendment protections do not give reporters immunity to break the law
Information v. Alyeska Pipeline Serv. Co., 1993, p. 475). However, the district
court said that if
the reporter was given copies of allegedly stolen documents, that did not lead
inescapably to the
conclusion that the journalist has committed a tort (p. 475). The district
court added that the
reporter had received the copies while gathering facts for a story, and
applied. Alyeska, meanwhile, had access to the original documents, so its
request for the
reporter s testimony was irrelevant to its case.
A Case Involving Illegally Obtained Information
In Marin Independent Journal v. Municipal Court (1993) a California appeals
affirmed a municipal court judge s confiscation of a newspaper photographer s
film. The Court of
Appeal of California for the First Appellate District said the photographer
violated a state rule
requiring judicial permission to take photographs in court. The photographs
were taken when a
murder suspect was brought into a courtroom.
The Court of Appeal of California said the U.S. Supreme Court s Cohen decision
demonstrated the limits to First Amendment rights (Marin Independent Journal v.
Court, 1993, p. 1717). The appeals court said Cohen s the statement that
publish illegally acquired information with impunity allows restraints on such
the confiscation of photographs taken in violation of California rules (p.
A Religious Freedom Case Citing Cohen
In Church Of Lukumi Babalu Aye v. Hialeah (1993) the U.S. Supreme Court held
city ordinances prohibiting animal sacrifice were an unconstitutional
restriction on the religion of
Santeria. The Supreme Court held the ordinances were too broadly targeted
against religion, and
too narrow to protect the public health interests that the city claimed were at
The U.S. Supreme Court cited its Cohen decision while explaining that laws with
incidental effect upon religious practices must be generally applicable before
they can withstand
constitutional scrutiny (Church Of Lukumi Babalu Aye v. Hialeah, 1993, p.
A Case Involving a Settlement Agreement citing Cohen
In United Egg Producers v. Standard Brands, Inc. (1995) the U.S. Court of
the Eleventh Circuit overruled a lower court s refusal on First Amendment
grounds to enforce an
agreement in an advertising dispute. In 1978 a dispute between United Egg
Standard Brands arose over advertisements saying cholesterol in eggs is harmful
Standard Brands, which is now called Nabisco Brands, Inc., agreed to stop its
United Egg Producers subsequently won an arbitration ruling that a 1990 series
of Nabisco ads
violated the agreement.
A U.S. District Court said enforcement of the ruling would constitute government
in violation of the First Amendment. However, the U.S. Court of Appeals, citing
Supreme Court s Cohen decision, disagreed. The appeals court said Cohen
establishes that action
by the state is a necessary condition to establish a First Amendment violation
Producers v. Standard Brands, Inc., 1995, p. 942-943). The appeals court said
enforcement of a legal agreement between two private parties does not constitute
action that violates the constitution.
This review paints a mixed picture of Cohen s impact. The case has, as
sometimes provided a powerful weapon against the press. However, judges have
careful to describe the limits of the ruling, frequently refusing to interpret
Cohen as providing
novel restrictions on established First Amendment freedoms.
The Cohen case has most frequently influenced decisions regarding journalists
and privacy cases. Cohen has been less influential in the area of defamation,
although two recent
decisions suggest this may change. In other areas Cohen has had minimal impact,
primarily as a reference to principles established before the case was decided.
Each of these areas
will be discussed in turn.
Cohen has consistently been interpreted to require reporters to keep promises to
the identity of sources, but there are limits to this obligation. Three cases
promised to conceal a source s identity involved individuals with HIV or AIDS
Strong Memorial Hospital, 1991; Doe v. Shady Grove Adventist Hospital, 1991;
WMAZ, Inc. v. Kubach, 1993). The Anderson case upheld a damage award against a
that was a third party to a claim against a doctor and a hospital. The
Multimedia case upheld a
much larger award against a television station that made, and quickly corrected,
allowing identification of an AIDS patient. In the Doe case, however, a court
said that a patient
did not waive his right to privacy by granting interviews to journalists who
promised to conceal
A fourth case involved a journalist s promise to a woman who had been sexually
(Ruzicka v. Conde Nast Publications, Inc., 1991). The Ruzicka case resulted in
a finding that
identifying a source by reporting details of her background violated a
Three of the four cases where Cohen was interpreted as making promises of
confidentiality enforceable seem to expand on the original decision, which
involved a deliberate
effort to break the promise. In each of these cases, journalists made some
effort to conceal the
identity of the individuals involved. However, all four cases involved people
victimized by either
HIV or sexual abuse--circumstances that can expose individuals to ridicule and
The Ruzicka case also was tried under Minnesota law, so the application of Cohen
strengthened by this factor. Still, it appears that courts regard promises to
sources with a strong
interest in keeping their identity private as particularly susceptible to
enforcement under Cohen.
The fact that privacy interests are implicated in each of these cases also
suggests there is merit to
Harvey s (1992) suggestion that Cohen offers plaintiffs a way to prevail in
These four cases contrast with the record in three other cases (Morgan v.
Scheetz v. Morning Call, 1991; Wildmon v. Berwick Universal Pictures, 1992).
Each of these
cases limits the effects of Cohen. In Morgan, a promise of confidentiality was
not sufficient to
bar journalists from publishing information about sexual abuse that already was
Scheetz case rejected the argument that Cohen might be used to expand privacy
only allowing publication of legally obtained information. The Wildmon case
held that Cohen
does not relieve a source from responsibility for clearly stating the terms of a
The Morgan and Scheetz cases suggest that individuals who take action that could
private facts public cannot then require journalists to conceal those facts,
regardless of how
embarrassing the disclosure may be. The Wildmon case, meanwhile, suggests that
between journalists and sources are subject to some of the requirements of
contract law, and
Cohen does not offer a way to avoid those requirements.
The second area where Cohen has frequently surfaced is defamation suits. There
been two consistent findings in this area. First, Cohen bars the use of privacy
claims to avoid the
strict requirements for proving defamation suits (Moldea v. New York Times Co.,
Washington v. Smith, 1995). Second Cohen does not create new rules favoring
plaintiffs in libel
cases (Geick v. Kay, 1992; Lence v. Hagadone Inv. Co., 1993; Moldea v. New York
However, two opinions suggest that Cohen may still have some influence on how
cases are tried (Desnick v. American Broadcasting Companies, Inc., 1995; Food
Lion Inc. v.
Capital Cities/ABC, Inc., 1995). Desnick suggested that Cohen could make
journalists who use
deceit to gain access to information liable under relevant state laws. This
suggestion was applied
in Food Lion, where ABC faces trial under North Carolina law for making false
gain access to Food Lion stores. If this line of reasoning is sustained by
other courts, it will have
serious implications for reporters using surreptitious techniques.
However, in other areas decisions have refused to expand the reach of Cohen
Grimmer, 1993; Simon & Schuster v. New York State Crime Victims Board, 1991;
v. Cutler, 1993). Lind held the state of Hawaii could not use Cohen to require
citizens to keep
complaints about politicians confidential. Simon & Schuster held that Cohen did
not mean a law
penalizing the content of speech can escape constitutional scrutiny because it
did not specifically
target the press. The Cutler case rejected the argument that Cohen prohibits
withholding information about confidential sources.
The remaining six cases are all instances where Cohen was cited not because it
new rules of law, but because it reaffirmed well-established precedent (Church
Of Lukumi Babalu
Aye v. Hialeah, 1993; Management Information v. Alyeska Pipeline Serv. Co.,
Independent Journal v. Municipal Court, 1993; State ex rel. Healy v. McMeans,
Broadcasting System, Inc. v. Federal Communications Commission, 1994; United Egg
Producers v. Standard Brands, Inc., 1995). For example, the Marin, Healy and
Information cases all refer to Cohen as a source for the rule that reporters
have no special
privilege allowing them to illegally acquire information. The other cases
concern application of
rules governing constitutional analyses of state action.
At this stage, it appears that courts still are working through many of the
Cohen. However, some tendencies are beginning to emerge.
First, Cohen offers plaintiffs a strong weapon in cases where promises of
were violated, even if the violation was inadvertent. This is highlighted by
the $500,0000 damage
award stemming from a 7-second mistake when a television technician set the
level of digitization
too low (Multimedia WMAZ, Inc., v. Kubach, 1993). However, this weapon has
limited use, and
is subject to restrictions from the application of established rules for
contracts and privacy law. In
other words, the conduct of journalists is not the sole issue when applying the
rules established by
Cohen. The courts also will consider the conduct of those asking for
These developments are consistent with the analysis of the case by Alexander
This trend is less supportive of one aspect of the analysis offered by Youm and
(1992), who argued that Cohen might give judges a reason to ignore the complex
interactions that characterize the relationship between reporters and their
However, Youm and Stonecipher also warned allowing state courts to pass on the
enforcement of confidentiality agreements meant Cohen opened the way for
resolution of such
issues in forums where the press may not have any presumptions in its favor.
case might be considered an example of this, and a second development suggests
may have more general application.
The opinions in Desnick v. American Broadcasting Companies, Inc. (1995) and Food
Lion Inc. v. Capital Cities/ABC, Inc., (1995) open the way for trials where the
underlying issue is
defamation, but the litigation centers on state laws regarding trespass, false
surreptitious recording. In other words, the focus will be on reporting
techniques instead of the
content of the reports. This may well produce trials where the press cannot
rely on constitutional
Finally, the question of whether Cohen will offer plaintiffs a new approach to
cases still is open. Although some of the decisions reviewed here suggest that
may be the case,
others explicitly limit Cohen s impact on privacy law, stating that the case
doesn t offer new
causes of action.
Alexander, L.B. (1993). Enforcing promises between journalist and sources.
Communications and the Law, 15(2), 3-16.
American Computer v. Boerboom Intern., 976 F. 2d 1208, (8th Cir. 1992).
Anderson v. Strong Memorial Hospital, 573 N.Y.S.2d 828, (N.Y. Sup. Ct. 1991).
Black s law dictionary, (5th ed.). (1979). St. Paul, MN: West Publishing.
Church Of Lukumi Babalu Aye v. Hialeah, 124 L. Ed. 2d 472, (1993).
Cohen v. Cowles Media Co., 445 N.W.2d 248, (Minn. Ct. App. 1989).
Cohen v. Cowles Media Co., 457 N.W.2d 199, (Minn. 1990).
Cohen v. Cowles Media Co., 8 Med. L. Rptr. 2273, (1991).
Cohen v. Cowles Media Co., 479 N.W.2d 387, (Minn. 1992).
Confidentiality pledge enforceable: Minnesota Court. (1992, February 15).
Publisher, pp. 13, 45.
Desnick v. American Broadcasting Companies, Inc., 44 F.3rd. 1345, (7th Cir.
Doe v. Shady Grove Adventist Hospital, 598 A.2d 507, (Md. Ct. Spec. App. 1991).
Food Lion Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811, (M.D.N.C 1995).
Friedman, J.M. (1981). Contract remedies in a nutshell. St. Paul, MN: West
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Cohen v. Cowles Media. Journalism Quarterly, 67(4), 1078-1082.
Lence v. Hagadone Inv. Co., 258 Mont. 433, (Mont. 1993).
Lind v. Grimmer, 859 F. Supp. 1317, (D. Hawaii 1993).
Lind v. Grimmer, 30 F.3d 1115, (9th Cir. 1994).
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Marin Independent Journal v. Municipal Court, 12 Cal. App. 4th 1712, (Cal. App.
Moldea v. New York Times Co., 1992 U.S. Dist. LEXIS 14213, (D.D.C. 1992).
Moldea v. New York Times Co., 22 Med. L. Rptr. 1321, (D.C. Cir. 1994a).
Moldea v. New York Times Co., 22 F.3d 310, (D.C. Cir. 1994b).
Morgan v. Celender, 780 F. Supp. 307, (W.D. Pa. 1992).
Multimedia WMAZ, Inc. v. Kubach., 443 S.E.2d 491, (Ga. Ct. App. 1993).
Ruzicka v. Conde Nast Publications, Inc,. 939 F.2d 578, (8th Cir. 1991).
Ruzicka v. Conde Nast Publications, Inc., 794 F. Supp. 303, (D. Minn. 1992).
Ruzicka v. Conde Nast Publications, Inc., 999 F.2d 1319, (8th Cir. 1993).
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Scheetz v. Morning Call, 946 F.2d 202, (3rd Cir. 1991).
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Simon & Schuster v. New York State Crime Victims Board, 116 L. Ed. 2d 476,
Starry Construction Co. v. Murphy Oil USA, Inc., 785 F. Supp. 1356, (D. Minn.
State ex rel. Healy v. McMeans, 884 S.W.2d 772, (Tex. Crim. App. 1994).
Texaco Refining and Marketing v. Davis., 835 F. Supp. 1223, (D. Or. 1993).
Turner Broadcasting System, Inc., Et al. v. Federal Communications Commission
1994 U.S. LEXIS 4831, (1994).
United Egg Producers v. Standard Brands, Inc., 44 F.3d 940, (11th Cir. 1995).
United States v. Cutler, 6 F.3d 67, (2nd Cir. 1993).
United States v. Williams, 118 L. Ed. 2d 352, (1992).
Virginia Bankshares, Inc. v. Sandberg, 115 L. Ed. 2d 929, (1991).
Washington v. Smith, 893 F. Supp. 60, (D.D.C. 1995).
Wildmon v. Berwick Universal Pictures, 803 F. Supp. 1167, (N.D. Miss. 1992).
Youm, K.H., & Stonecipher, H.W. (1992). The legal bounds of confidentiality
promissory estoppel and the First Amendment. Federal Communications Law
Appendix A: Chart of Cases Citing Cohen v. Cowles Media Co.
Type of Case
Related decisions in a case
First Amendment Cases
Promise of confidentiality
Anderson v. Strong Memorial Hospital (1991)
Ruzicka v. Conde Nast Publications, Inc. (1991)
Ruzicka v. Conde Nast Publications, Inc. (1992)
Ruzicka v. Conde Nast Publications, Inc. (1993)
Morgan v. Celender (1992)
Wildmon v. Berwick Universal Pictures (1992)
Multimedia WMAZ, Inc. v. Kubach (1993)
Doe v. Shady Grove Adventist Hospital (1991)
Scheetz v. Morning Call (1991)
Food Lion Inc. v. Capital Cities/ABC, Inc., (1995)
Desnick v. American Broadcasting Companies, Inc. (1995)
Moldea v. New York Times Co. (1992)
Moldea v. New York Times Co. (1994a)
Moldea v. New York Times Co. (1994b)
Washington v. Smith (1995)
Geick v. Kay (1992)
Lence v. Hagadone Inv. Co. (1993)
Regulation of speech
Lind v. Grimmer (1993)
Lind v. Grimmer (1994)
Simon & Schuster v. New York State Crime Victims Board
Turner Broadcasting System, Inc. v. Federal Communications
United States v. Cutler, 1993
State ex rel. Healy v. McMeans (1994)
Management Information v. Alyeska Pipeline Serv. Co.
Illegally obtained information
Marin Independent Journal v. Municipal Court (1993)
Church Of Lukumi Babalu Aye v. Hialeah (1993)
United Egg Producers v. Standard Brands, Inc. (1995)
Virginia Bankshares, Inc. v. Sandberg (1991)
Starry Construction Co. v. Murphy Oil USA, Inc. (1992)
Texaco Refining and Marketing v. Davis (1993)
American Computer v. Boerboom Intern. (1992)
United States v. Williams (1992)
*These cases are described in Appendix B.
Appendix B: Cases Unrelated to the First Amendment Citing Cohen v. Cowles Media
Four Contract Cases citing Cohen
In Virginia Bankshares, Inc. v. Sandberg (1991) the U.S. Supreme Court ruled
minority shareholders in a bank could not recover damages when their stock was
purchased in a
merger for what they believed was less than a fair price. The Supreme Court
cited its Cohen
decision in a footnote (p. 949) to support its rejection of an argument that it
should not consider
one issue in the case that was not raised at a lower level.
In Starry Construction Co. v. Murphy Oil USA, Inc. (1992) the U.S. District
Court for the
District of Minnesota dismissed a suit alleging a breach of a contract for
failing to supply asphalt
cement oil used to pave roads. Starry Construction Co. filed the suit after its
supplier ran short of
asphalt during the Persian Gulf War. The district court cited the Minnesota
Supreme Court s first
Cohen decision in dismissing an allegation of negligent
information to a business that suffers a loss from relying on the information.
The district court
said Cohen had established that failure to perform a promise is not fraud unless
the promisor did
not plan to keep the bargain when it was made (p. 1368).
In Texaco Refining and Marketing v. Davis (1993) the U.S. District Court for the
of Oregon upheld Texaco s termination of a franchise agreement. Barry P. Davis
stations under an agreement requiring their continuous operation, but he closed
the stations from
sundown Friday to sundown Saturday, citing religious reasons. Davis defied both
restraining order and a preliminary injunction ordering him to keep the stations
then terminated the lease because failing to comply with the court orders
violated the franchise
Davis cited the U.S. Supreme Court s Cohen decision in a counterclaim arguing
Texaco had used a federal court to enforce requirements of a state law that
infringed his First
Amendment right to practice religion. However, the U.S. District Court said
relied on Cohen s finding that the application of state law by a state court
action within the purview of the Fourteenth Amendment. Texaco never took action
in any state
court in the case (Texaco Refining and Marketing v. Davis, 1993, p. 1233).
In American Computer v. Boerboom Intern. (1992) the U.S. Court of Appeals for
Eighth Circuit upheld dismissal of a counterclaim in a lawsuit involving leased
equipment. The counterclaim was filed by two farm equipment dealers who stopped
payments because of problems with the equipment. The appeals court held the
dealers failed to
establish that they were mislead into leasing the equipment used to communicate
with the J.I.
Case Co. The opinion cited the Minnesota Supreme Court s first decision in
Cohen as supporting
a finding that some statements the dealers complained about concerned future
acts and therefore,
could not be considered fraudulent (p. 1214).
A criminal case citing Cohen
In United States v. Williams (1992) the U.S. Supreme Court reversed the
dismissal of a
grand jury indictment for making false statements on loan applications. The
Supreme Court said
the indictment should not have been dismissed on the grounds that prosecutors
failed to present
exculpatory evidence to the grand jury. The Supreme Court cited its Cohen
decision in a footnote
(p. 364) to support a finding that once a lower court ruled on the question
evidence, the Supreme Court could consider the matter regardless of when the
matter was raised.
Reporters for the Associated Press and WCCO-TV also received the documents
(Cohen v. Cowles Media Co.,
1989, p. 253). The Associated Press published a story, but did not identify
Cohen. WCCO-TV decided not to
broadcast the story, thereby keeping its promise of confidentiality.
Some staffers argued the promise of confidentiality should be honored, while
others suggested Cohen be
identified as a source close to the Republican campaign (Cohen v. Cowles Media
Co., 1990, p. 201). Still others
argued against publication saying the story was not newsworthy. Editors
responded that a veiled reference to a
source would cast suspicion on others close to the campaign. In addition, the
story was spreading through the
media, and could be discovered by reporters using sources that were not
confidential. At The Star Tribune the
newspaper s editorial endorsement of the Democratic ticket also raised concern
that not publishing the story would
result in accusations of favoritism.
The court noted that Cohen admitted the reporters intended to keep their
promises (Cohen v. Cowles Media Co.,
1990, p. 202). In addition, there was no evidence the editors planned to name
Cohen until after the promise was
made and additional information about the story was discussed.
The court noted that it might be ethical to break such a promise if (a)
disclosure was needed to correct a source s
misstatements, or (b) failing to reveal the source could result in substantial
damages for libel (Cohen v. Cowles
Media Co., 1990, p. 203).
The dissent called the decision unconscionable (Cohen v. Cowles Media Co.,
1990, p. 206), saying it allowed
the press to use confidentiality to shield the identity of its sources while
violating confidentiality agreements with
impunity when it decides that disclosing the source will help make its story
more sensational and profitable (p.
The promissory estoppel argument did not appear in briefs filed with the
Minnesota Supreme Court, but was
raised in oral arguments before the court (Cohen v. Cowles Media Co., 1990, p.
Cases cited by the court (Cohen v. Cowles Media Co., 1991 p. 2276) included
(a) Branzburg v. Hayes (1972, 408
U.S. 665) which held reporters are not immune from answering questions in
criminal investigations in response to
a grand jury subpoena, (b) Zacchini v. Scripps-Howard Broadcasting Co. (1977,
433 U.S. 562), which held the
press must obey copyright laws, (c) Associated Press v. NLRB (1937, 301 U.S.
103) which held the press must
obey federal labor laws, (d) Associated Press v. United States (1945, 326 U.S.
1) and Citizen Publishing Co. v.
United States (1969, 394 U.S. 131) which held the press was not immune to
antitrust laws, and (e) Murdock v.
Pennsylvania (1943, 319 U.S. 105) and Minneapolis Star and Tribune Co. v.
Minnesota Commissioner of Revenue
(1983, 460 U.S. 575) which established the press is not immune from
Dissenting opinions argued that the state should not be allowed to punish
publication of truthful information
unless the state has an interest of the highest order (Cohen v. Cowles Media
Co., 1991, p. 2277). The dissents
argued for the balancing test applied by the Minnesota Supreme Court, stating
that the First Amendment prohibits
government from limiting the information available to the public. Public
interest in information about a political
campaign meant that publication of Cohen s name should receive Constitutional
protection (p. 2277-2280).
The court rejected arguments that upholding the award would inhibit reporting
of a source s identity when the
identity becomes newsworthy. Such an effect is no more than the incidental,
and constitutionally insignificant,
consequence of applying to the press a generally applicable law that requires
those who make certain kinds of
promises to keep them (Cohen v. Cowles Media Co., 1991, p. 2277).
This differs from expectation damages, which provide a remedy by attempting to
place someone in the same
position they would have achieved if the contract was fulfilled (Friedman, 1981,
Black s (1979, p. 406) defines a detriment as (a) the forbearance of a legal
right, or (b) giving up something an
individual has a right to keep, or (c) doing something an individual has a right
not to do.
Federal courts had jurisdiction because this case involved diversity of
citizenship. In Ruzicka v. Conde Nast
Publications, Inc. (1991) the plaintiff lived in Minnesota, but the defendants
lived n New York. The agreement at
issue was made in Minnesota, and the federal courts applied Minnesota law to the
This ruling was made after Cohen reached the Court of Appeals of Minnesota and
before it reached the
Minnesota Supreme Court for the first time. The U.S. District Court, referring
to the Minnesota appeals ruling
that Cohen could sue for breach of contract, held the First Amendment required
proof of a confidentiality
agreement stated in specific and unambiguous terms (Ruzicka v. Conde Nast
Publications, Inc., 1991, p. 581)
before a breach of contract claim could prevail. The court ruled that Ruzicka
did not prove such an agreement
existed, and granted summary judgment against her. Other claims under Minnesota
state law also were dismissed.
Summary judgment is granted only if there is no genuine dispute about any
material fact (Ruzicka v. Conde
Nast Publications, Inc., 1992, p. 305). However, the party opposing summary
judgment must specify why it
believes there is an issue that requires proceeding to trial. When considering
a request for summary judgment, the
court must view the evidence as most favorable to the party that did not make
the request, and it must give that
party the benefit of all reasonable inferences that can be based upon the facts
of the case. However, summary
judgment must be granted against a party if it fails to establish an essential
element of its case, an element that it
would be required to prove at trial.
The reporter had complied with a specific request from Ruzicka not to publish
details of Ruzicka s problems at
a previous job (Ruzicka v. Conde Nast Publications, Inc., 1992, p. 304).
A plenary trial is a complete and formal proceeding, as opposed to a summary
hearing on a case (Black s, 1979,
This was a diversity case tried under Pennsylvania law (Morgan v. Celender,
1992, p. 308).
The elements of fraud in Pennsylvania were (a) misrepresentation, (b) a
fraudulent utterance, (c) an intention by
the maker that the recipient will be induced to act, (d) justifiable reliance on
the misrepresentation; and (e) damage
to the recipient as a proximate result (Morgan v. Celender, 1992, p. 309).
The ruling on the privacy claim also stated that the news media has the
right to publish such items, even if a
reporter promises that such additional facts, not of record, would be off the
record. The law provides that anyone
who desires to discuss matters of public concern with a reporter does so at his
or her peril that the matter may be
published (Morgan v. Celender, 1992, p. 310).
The film was selected to open the Margaret Mead Film Festival at New York s
American Museum of Natural
History in 1991 (Wildmon v. Berwick Universal Pictures, 1992, p. 1174).
The plaintiff stayed home after the broadcast, fearing he would be recognized
as an AIDS patient. When his
sister persuaded him to go out for fast food, he was recognized and harassed
(Multimedia WMAZ, Inc. v. Kubach,
1993, p. 493). He also quit a job at a dry cleaner because he felt unable to
deal with the public.
A dissenting opinion argued that the actual damage award of $500,000 was
tainted because the jury considered
punitive and actual damages at the same time (Multimedia WMAZ, Inc. v. Kubach,
1993, p. 497-500). The dissent
argued the size of the award as compared with the $100 for punitive damages
indicated the jury had combined
punitive and actual damages. Therefore, the award should be reconsidered.
The court, quoting from Black s Law Dictionary, described a waiver as the
intentional or voluntary
relinquishment of a known right, or such conduct as warrants an inference of the
relinquishment of such right
(Doe v. Shady Grove Adventist Hospital, 1991, p. 514-515).
The U.S. District Court deferred consideration of motions to dismiss Food
Lion s claims of negligent
supervision, breach of fiduciary duty and constructive fraud, and unfair and
deceptive trade practices (Food Lion
Inc. v. Capital Cities/ABC, Inc., 1995). A motion to dismiss a claim of
respondeat superior, which Black s (1979,
p. 1179) defines as making the employer liable for the acts of an employee, also
The U.S. District Court said Food Lion must meet the libel standard
established in Hustler Magazine v. Falwell
(1988, 485 U.S. 46). This case requires public figures to establish elements of
a constitutional libel claim (Food
Lion Inc. v. Capital Cities/ABC, Inc., 1995, p. 823).
Privilege gives statements made in the performance of an official duty an
exemption from liability for
defamation (Black s, 1979, p. 1077).
The newspaper incorrectly reported the complaint was filed with the state s
Supreme Court (Lence v. Hagadone
Inv. Co., 1993, p. 437). In the subsequent articles, the newspaper reported the
lawyer had been charged with a
building code violation, when in fact a corporation created by the lawyer to
hold title to his office building was
accused of the violation (p. 438-439).
Violations could be punished by up to 30 days in jail and fines of up to
$1,000 (Lind v. Grimmer, 1994, p.
The court identified possible state interests as (a) encouraging complaints
and protecting witnesses, (b)
preventing disclosure of unwarranted or frivolous complaints, (c) keeping
complainants from using the
commission s name to enhance their credibility, (d) maintaining confidence in
the state Legislature by avoiding
disclosure of groundless complaints, and (e) protecting investigations (Lind v.
Grimmer, 1993, p. 1333).
The standard used is defined in United States v. O'Brien (1968, 391 U.S.
367). Turner Broadcasting System,
Inc. v. Federal Communications Commission (1994, p. 75) describes this standard
as allowing content-neutral
regulations that further important government interests (a) when the interest is
not related to suppression of free
speech and (b) any incidental restriction on First Amendment rights is only as
large as necessary to fulfill the
A writ of mandamus can be issued to compel the performance of a ministerial
duty by a lower court judge who
is abusing his position (Black s, 1979, p. 866). The court defined a
ministerial duty as one clearly spelled out by
law so that discretion or judgment cannot be exercised (State ex rel. Healy v.
McMeans, 1994, p. 774).
A lengthy dissent disagreed, saying the decision overruled a matter within
the discretion of the county judge and
therefore represented an abuse of the appeals process. The dissent said a writ
of mandamus should not be used to
overrule lower court judges on matters within their discretion, or as a
substitute for ordinary appeals. The dissent
argued the court had abused the writ by taking upon itself the task of
correcting decisions simply because it
believed the decisions were mistaken (State ex rel. Healy v. McMeans, 1994, p.
The Court of Criminal Appeals for the State of Texas was referring to the
decision in Branzburg v. Hayes
(1972, 408 U.S. 665).
The tort at issue was conversion (Management Information v. Alyeska Pipeline
Serv. Co., 1993, p. 475).
Black s (1979, p. 300) defines conversion as the unauthorized assumption of
ownership rights over property
belonging to someone else. Conversion is any such act which takes the property
from its owner.
The U.S. Court of Appeals said there is one exception to this rule, but it did
not apply (United Egg Producers v.
Standard Brands, Inc., 1995, p. 943). The U.S. Supreme Court in Shelley v.
Kraemer (1948, 334 U.S. 1) held that
enforcement of racially restrictive covenants between private parties does
constitute state action requiring a
Cohen v. Cowles Media Co. Revisited 49