Content-Type: text/html Promises to Keep: When Publisher-Source Agreements Trump First Amendment Protections Morgan David Arant, Jr. Assistant Professor Department of Journalism University of Memphis Submitted to the Law Division AEJMC Convention Washington, D.C., August 1995 Direct inquiries to: Department of Journalism University of Memphis Meeman Building Room 300 Memphis, TN 38152 919-678-4784 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. [1] Journalists are often faced with situations in which they have to make promises to sources to get information.[2] Reporters are given off-the-record interviews with government officials for background. They receive the information with the understanding that they cannot identify or quote the 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.[3] 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 publication trumped in the courts by written and oral promises to refrain from 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.[4] Recently private plaintiffs have recovered damages when journalists broke agreements not to publish.[5] In 1991, political publicist Dan Cohen received a favorable ruling in the U.S. Supreme Court in his effort to recover damages from the media because they broke a promise of confidentiality. This debate about recovery of damages for broken promises to sources was reignited by the January 1995 broadcast of an interview in which a CBS television news anchor made and broke a promise to keep information confidential. Connie Chung's breach of her promise to the mother of Newt Gingrich, the Speaker of the U.S. House of Representatives, raises again the question of whether a person's pledge not to publish information revealed by a source is a binding commitment, the breach of which might result in a successful legal action by a plaintiff. Could Kathleen Gingrich successfully sue Chung for not keeping "just between you and me" Gingrich's revelation of Newt's characterization of Hillary Clinton ("She's a bitch!")?[6] 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 performance of which the law in some way recognizes as a duty."[7] A promise is defined "as an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future."[8] A breach of that commitment is "a failure, without justification, to perform all or any part of what is promised. . . ."[9] 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 confidentiality.[10] However, 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 trumps First Amendment protection against prior restraints as well as post-publication punishment of publication. This article analyzes the U.S. Supreme Court and the lower court opinions in cases pitting promises to sources not to publish certain information against protections of the First Amendment for publication. First, cases in which federal employees have made and broken promises to the government not to publish sensitive information learned in their employment are considered. Then, the cases in which journalists broke promises not to publish the identity of private individual sources are analyzed. Finally, the legal principles of these precedents are applied to two journalistic situations involving commitments not to publish: the 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 a condition of their employment. In each case, federal government employment contracts restricted the employee expression about sensitive information learned at work. In Snepp v. United States,[11] the U.S. Supreme Court said that a prepublication agreement signed by a Central Intelligence Agency employee was not an unconstitutional prior restraint but a valid and binding contract. The CIA agent was found to have conceded, as a condition of employment, the right to publish what he learned while a CIA employee unless he first submitted such materials for prepublication review. Prior to Snepp, a federal court of appeals issued a similar decision in United States v. Marchetti,[12] a case involving another CIA agent. In Marchetti, the first successful suit to enjoin political speech in the country,[13] the government prevented publication of a non-fiction book on Central Intelligence Agency operations by Victor Marchetti, a 14-year veteran of the CIA. After retiring, Marchetti sent to a publisher an article and outline for a larger study of the CIA's intelligence gathering and covert political activities. An employee of the publisher submitted the 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 while employed with the CIA without first gaining CIA permission. When the court issued a permanent injunction a month later, it said that Marchetti had given up his First Amendment rights to publish about the agency by signing a secrecy agreement as a condition of his employment and upon retirement by signing statements promising not to reveal classified information or information relating to intelligence matters.[14] Affirming the judgment of the district court, the Fourth Circuit Court of Appeals said the President as Commander in Chief had authority to require employee secrecy agreements to protect national security and the CIA director was under statutory mandate to prevent disclosure of intelligence methods and sources.[15] The court said the agency could restrain publication not only to prevent "grave and irreparable harm" but also to prevent disclosure that might "reasonably be thought to be inconsistent with the national interest."[16] The appeals court did narrow the reach of the district court's injunction on publication of all intelligence information learned at the CIA: The restraint would apply only to classified intelligence information. The CIA could assert what was classified and should not be 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, Marchetti joined by co-author John Marks and publisher Knopf returned to seek judicial review of the contested passages.[17] Four assistant CIA directors 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 relations with foreign nations, is not classified until a classifying officer makes a conscious determination that the governmental interest in secrecy outweighs a general policy of disclosure and applies a label of 'Top Secret' or 'Secret' or 'Confidential' to the information."[18] The judge said CIA officials were making ad hoc classifications of information after reading Marchetti's book. The CIA provided documents showing that information in the 168 passages was classified "Secret" or "Top Secret." After examining evidence to show whether the contested passages contained information that was classified, the court said only 26 of the 168 passages contained properly classified material. To protect Marchetti's First Amendment rights, the court required the government show the reasonableness of the classification and strict proof of classification.[19] However, the judge enjoined publication of all the contested passages until the government had a chance to appeal his decision. At that point, Knopf went ahead and published the book without the 168 contested passages.[20] 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."[21] The court accepted the government's proof of classification: that the information was 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 presumption of 'regularity' and with the burden of proof of improper classification placed squarely on the proponent of publication."[22] The government had to show no more than that the information from each disputed passage was contained in 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 sources. Also, the injunction did not cover information gathered by the agent outside of his employment or since his employment.[23] The court said that the First Amendment did not prohibit an injunction against the disclosure of properly classified information when "the classified information was acquired, during the course of his employment, by an employee of a United States agency or department in which such information is handled and its disclosure would violate a solemn agreement made by the employee."[24] By signing the confidentiality agreement as a condition of employment, the employee relinquished his First Amendment right to publish such information. The Supreme Court declined to review the decision.[25] This left in place the district court's injunction restraining Marchetti from publishing classified information that he learned on the job and the publication of which was prohibited under the secrecy agreement he signed. In Marchetti the government was able to convince the courts to issue a prior restraint on publication of information about a government function. In spite of the holding of the New York Times Co. v. United States (The Pentagon Papers case),[26] in which the Supreme Court had rejected prior restraint of a classified government study and said such a restraint might only be granted in the case of military information that threatened grave and irreparable harm to the nation, the Court of Appeals for the Fourth Circuit held that a court-imposed prior restraint on Marchetti was permitted even without any attempt by the court to determine whether the publication caused the nation "direct, immediate and irreparable harm."[27] The court said the secrecy agreement signed by Marchetti gave the government the right to impose the prior restraint. The court did rule that the plaintiff could seek judicial review of what the government said was classified and should be censored. However, the burden was on the plaintiff 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 intelligence officer in Vietnam who published Decent Interval, a book critical of the rapid American evacuation of Vietnam. He did so without submitting it to the agency for prepublication review. As a condition of his employment at 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 would not "publish. . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of employment . . . without specific prior approval by the Agency."[28] 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 advance payments from the publisher and would receive additional royalties from book sales and a movie deal. The government conceded that the book revealed no classified information but sought to punish Snepp for violating his contract for prepublication review and to prevent any future unreviewed publications. The District Court for the Eastern District of Virginia found that in publishing his book Snepp had "willfully, deliberately and surreptitiously breached his position of trust with the CIA and the secrecy agreement."[29] The court said that Snepp had deliberately misled the CIA to believe he would submit the manuscript for preclearance and the publication "caused the United States irreparable harm and loss."[30] The court issued an injunction requiring that for his lifetime Snepp not speak or write anything about the 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 profits fr om the book. The Fourth Circuit Court of Appeals agreed that Snepp had breached a valid contract and that Snepp's failure to submit his manuscript for prepublication review had inflicted "irreparable harm" on the nation's intelligence activities.[31] The appeals court upheld the district court's injunction on future publications. However, the court reversed the lower 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.[32] The court said that Snepp's obligation 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 the injunction, the Court found the secrecy agreement reasonable and not an unconstitutional prior restraint because of the national security interests involved and the CIA's statutory mandate to "protect intelligence sources and methods from disclosure."[33] The Court said the government had a compelling interest in protecting the secrecy of information important to national security, and the agreement with Snepp was a reasonable means to accomplish that end. The government can restrict the First Amendment rights 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 information with which he had been entrusted to the risk of disclosure."[34] The government did not allege that Snepp's book contained classified information but only that Snepp had breached the agreement to submit the text for review. However, the Court reasoned that because the agent might have revealed information the CIA would find harmful, he impaired the CIA's ability to perform its statutory duties to protect sensitive information from disclosure. CIA Director Stansfield Turner testified that Snepp's book and others like it had seriously impaired the CIA's work because secret sources had dried up 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 sensitive information might not conclude on his own -- innocently or otherwise -- that it should be disclosed to the world."[35] 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 in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness."[36] The Court said that the trust remedy would deter others from placing sensitive information at risk. Justices Brennan and Marshall joined Justice Stevens in dissent.[37] Stevens said that because the government had conceded Snepp's book contained no classified, nonpublic material, "the interest in confidentiality that Snepp's contract was designed to protect has not been compromised."[38] Stevens said the Court had no statutory or common law authorization to impose a constructive trust remedy unless the record showed that Snepp had published classified information. Snepp's duty under his employment agreement was a duty not to disclose confidential information. "When the Government seeks to enforce a harsh restriction on the employee's freedom, despite its admission that the interest the agreement was designed to protect -- the confidentiality of classified information -- has not been compromised, an equity court might well be persuaded that the case is not one in which the covenant should be enforced," Stevens said.[39] Stevens maintained that the agency's censorship power should be limited to classified material. A wide-ranging prior restraint that would allow censorship of classified and 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 could not significantly weaken the CIA's effectiveness in recruiting sources. 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 criticize his 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 beyond the demands of secrecy.[40] Stevens said an agency's authority to review a book had an inhibiting effect on the author. "Moreover, the right to delay the publication until the review is completed is itself a form of prior restraint that would not be tolerated in other contexts."[41] 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 and the board were unable to agree on 18 of the manuscripts.[42] In the last he submitted, a manuscript for a television mini-series about his experiences in Vietnam, the prepublication board prohibited the publication of several categories of information, including Snepp's use of any overseas CIA location except Saigon or any real names except his own. Snepp challenged the restrictions because they were vague and in the past the board had approved release of similar material it now restricted. The CIA and Snepp negotiated the deletions for two years, during which time Snepp lost his television contract. Snepp then filed a petition in the district court to collect damages for loss of his television deal and to get the permanent injunction modified to 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 manuscript. Denying his petition, the U.S. District Court for the Eastern District of Virginia said the CIA acted reasonably, and on appeal the Court of Appeals for the Fourth Circuit also denied his petition to modify the permanent injunction.[43] Snepp argued that the burden should be on the CIA to initiate judicial proceedings when disputes arose with the agency over whether material must be deleted from a manuscript. Snepp relied on Freedman v. Maryland, in which the Court said that in reviewing motion pictures for obscenity, the government had the burden of seeking an injunction to restrain publication.[44] In rejecting Snepp's petition, the Fourth Circuit relied on its decision in United States v. Marchetti, in which the court said, "Because of the sensitivity of the area and confidentiality of the relationship in which the information was obtained, however, we find no reason to impose the burden of obtaining judicial review upon the CIA. It ought to be on M archetti."[45] The court in Snepp said the difference between this case, where the burden was on Snepp to initiate judicial review, and Freedman, where the Court placed the burden on the government, was the national security interest in Snepp. The national security interest at stake permitted placing the burden of seeking judicial review on the former agent, not the CIA.[46] The court also indicated that the scope of judicial review to which Snepp was entitled was narrow. "Courts must avoid second-guessing the CIA's decision to classify information because they have only a limited knowledge of foreign intelligence matters," the court said.[47] In Snepp, the Supreme Court gave the government wide discretion in using employee secrecy agreements requiring prepublication review and in punishing their breach. According to one authority, "[T]he government insisted in Snepp, that a mere violation of the CIA's system of censorship, 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."[48] If the agency denied approval, Snepp could not publish. If Snepp wished to pursue publication, he had to appeal the agency's censorship for review by the 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 labored under the permanent injunction and the agency continued to impose prior restraint on dissemination of information he had learned two decades 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 British publication Jane's Defence Weekly with a satellite photograph of a Soviet aircraft carrier under construction.[49] The National Intelligence Support Center employee was convicted of violating the theft of government property sections of the Criminal Code[50] and two provisions of the Espionage Act.[51] Bound by the Espionage Act and contractual obligations created by employment agreements against unauthorized disclosure, Morison was punished 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 leaking national security secrets to foreign governments but did not apply to his leaking information to a naval news publication. Affirming the lower court's conviction of Morison, Fourth Circuit Judge Donald Russell said that subsections 793(d) and (e) of the Espionage Act were not limited to those engaged in classic spying but were intended to criminalize disclosure of classified material to anyone "not entitled to receive it."[52] He said the statute contained "no exemption in favor of one who leaks to the press,"[53] and he did not perceive "any First Amendment rights implicated here."[54] The 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 obligation."[55] The U.S. government has successfully punished employees for failing to keep their employment contracts not to publish information gained in their employment. In Snepp v. United States,[56] the Court said that a prepublication agreement signed by a CIA employee was not an unconstitutional prior restraint but a valid and binding contract. The CIA agent was found to have given up, as a condition of employment, the right to publish what he lear ned while a CIA employee unless he first submitted to prepublication review. The government conceded that Snepp's book revealed no classified information but sought to punish Snepp for violating his contract and to prevent any future unreviewed publications.[57] Likewise, lower federal courts 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 punished through civil judgments for breaching promises made to private sources. The U.S. Supreme Court decision in Cohen v. Cowles Media Co.[58] suggests that journalists have a legal duty to keep their promises to sources. In that case, the Court said the First Amendment did not prevent the press from being punished for breaking an oral promise of confidentiality to a source. 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, the 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 connection with this, and that you will also agree that you're not going to pursue with me a question of who my source is, then I will furnish you with the documents.[59] Receiving the reporters' acceptance of his conditions, Cohen handed over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for lieutenant governor. One record showed that Johnson had been charged with three counts of unlawful assembly in 1969 and the other that she had been convicted of petit theft in 1970.[60] The charges for unlawful assembly occurred during a political protest on 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 vacated. Both the Tribune and the Dispatch newspapers' editors decided to publish the identity of the source, Dan Cohen, along with the story about the charges. The Associated Press ran the story without identifying Cohen, and the television station did not broadcast a story at all. The day the sto ries appeared, Cohen was fired by his employer. Cohen sued the newspapers for fraudulent misrepresentation and breach of contract. The trial court rejected the defendants' argument that the First Amendment barred Cohen's lawsuit, and the jury awarded Cohen $200,000 in compensatory damages and $500,000 in punitive damages.[61] On appeal, the Minnesota Court of Appeals rejected the district court's finding of fraudulent misrepresentation and reversed the punitive damages based on the misrepresentation tort. However, the court of appeals affirmed 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."[62] The court said the application of the neutral principles of contract law to a promise not to publish was not state action that triggers First Amendment scrutiny because the parties entered the agreement without involvement by the state.[63] Reversing the court of appeals on the breach of contract claim, the Minnesota Supreme Court held that the agreement between the reporter and the source did not constitute a legally binding contract. The court said that although the reporters made a clear-cut promise to Cohen, "the law does not create a contract where the parties intended none."[64] While Cohen had not included a promissory estoppel cause of action, which under Minnesota common law protected those who relied on promises and suffered harm as a result of the promises being broken, the court suggested that such an action was a better remedy for a broken promise of confidentiality to a source. The court said that under the state's promissory estoppel doctrine, which implies "a contract in law where none exists in fact,"[65] a source might recover damages for breach of a promise of confidentiality.[66] A promissory estoppel action required the court to consider why journalists broke the promise. Besides, the Minnesota Supreme Court concluded, competing with the injustice against Cohen was the media assertion of a moral interest in breaking the promise, the interest in furthering open 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 the 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 action. Cowles Media contended that under Smith v. Daily Mail, "if a newspaper lawfully obtains information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."[67] In his decision for the Court joined by Chief Justice Rehnquist and Justices Stevens, Scalia and Kennedy, Justice White said that the Daily Mail line of cases did not control this case. Instead, the line of 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 to gather and report the news."[68] The application of Minnesota's law of promissory estoppel to the media did not single out the press, and therefore its application was not barred by the First Amendment. Justice White said a judgment against the media under promissory estoppel was not really punishment of the press, such as the criminal sanction ruled unconstitutional in Daily Mail. In that case, the state defined the content of publication to be punished. In Cohen, because the parties to the promise determined the scope of the legal obligations, "the restrictions placed on the publication of truthful information [were] self-imposed," White said. "The payment of compensatory damages in this case is constitutionally indistinguishable from a generous bonus to a confidential news source."[69] 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 prevents journalists from naming newsworthy sources, "it 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."[70] White remanded the case back to the Minnesota Supreme Court, which then ruled that Cohen had met state requirements of promissory estoppel and upheld the $200,000 compensatory damage award to Cohen.[71] In his dissent joined by Justices Marshall and Souter, Justice Blackmun said that penalizing truthful reporting regarding a political campaign violated the First Amendment. He said the incidental effects doctrine was inappropriate in Cohen because the incidental effects cases "did not involve the imposition of liability based upon the content of speech."[72] Instead, the Court's decision in Hustler Magazine, Inc. v. Falwell [73] was applicable. Just as the use of intentional infliction of emotional distress, part of Virginia's common law of general applicability, to punish 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] the publication of important political speech is the claimed violation," Blackmun said.[74] To punish publication of truthful information consistent with the First Amendment, the punishment must further a state interest of the highest order, which Minnesota did not assert in its enforcement of promissory estoppel. Justice Souter, joined in his dissent by Justices Marshall, Blackmun and O'Connor, rejected the incidental effects line of cases as controlling. "'There is nothing talismanic about neutral laws of general applicability,' for such laws may restrict First Amendment rights just as effectively as those directed specifically at speech itself," Souter said.[75] Souter contended that the Court's analysis focused only on the speaker's contract and ignored the importance of the information to public debate. "But freedom of the press is ultimately founded on the value of enhancing such discourse for the sake of a citizenry better informed and thus more prudently governed," he said.[76] Souter said the state's interest in enforcing a newspaper's promise of confidentiality was "insufficient to outweigh the interest in unfettered publication of the information revealed in this case."[77] According to Justice Souter's analysis of the majority opinion in Cohen, the Court focused on the speaker's contract and ignored the First Amendment values in protecting political debate. In other words, the rights of a legally binding promise of confidentiality to a source trumped the First Amendment rights of the journalists. By raising up the talisman of incidental effects, the Court did not have to address the First Amendment concerns in this case. Since the Court decided Cohen, other plaintiffs have successfully sued the media for breaking promises of confidentiality.[78] Jill Ruzicka sued writer Claudia Dreifus and Glamour magazine for breaking a promise that she would not be "identified or made identifiable" in an article about therapist-patient sexual abuse.[79] In 1981 Ruzicka had sued her psychiatrist for improper sexual conduct, and the Minneapolis Tribune had named Ruzicka and identified her job with the County Attorney's office in an August 1981 story about her lawsuit and described her allegations in a 1982 story about an agreement between the psychiatrist and the state board of medical examiners.[80] Before publication, Dreifus asked permission to identify 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 psychiatrist and a member of a state legislative task force on therapist sexual abuse of patients.[81] 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 and unjust enrichment.[82] Because the U.S. Supreme Court had decided Cohen after Ruzicka had filed her lawsuit, the court of appeals allowed Ruzicka to amend her complaint to include promissory estoppel and remanded the case to the district court to consider the matter under the doctrine of promissory estoppel.[83] The federal district court ruled as a matter of law for the magazine because Ruzicka had not established that a clear and definite promise was made to support recovery under promissory estoppel.[84] The district court said changing Ruzicka's surname in the published story satisfied the promise that the source would not to be identified. The additional promise that the source not be identifiable in the story was too 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.[85] The court of appeals rejected the district court's conclusion that the promise was too vague and held that the term identifiable made the term identify more specific in scope.[86] The existence and scope of the promises made were questions of fact to be 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 [Ruzicka] requires a remedy here to avoid an injustice.'"[87] 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,[88] an HIV-positive patient sued his physician and the hospital for breach of the patient-physician privilege when an identifiable photograph of Cornell Anderson was published in the Rochester (N.Y.) Democrat & Chronicle, a Gannett newspaper. The paper's photographer had promised the patient and the doctor that Anderson would not be recognizable in the photograph. HIV-positive Anderson had not told his friends or family members about his condition. When they saw the phot ograph, friends and family members recognized the patient. Anderson sued the hospital and his physician and was awarded $350,000. Anderson also sued 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 the physician-patient privilege for failing to comply with its promise to the doctor and the patient that Anderson would not be recognizable in the newspaper photograph. The physician and doctor said Gannett's breach of promise had caused the damages assessed against them in the lawsuit by Anderson and should pay those damages. The state court said that Gannett's promise to the physician and the hospital had created an affirmative duty and "the breach of such duty was a proximate cause of the damages sustained by them."[89] 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 a state from making the media liable for dishonoring a promise solemnly made.[90] The 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 promise to them would be broken, permission for the photograph would not have been granted. The absence of permission under such circumstances makes Gannett's conduct unlawful, the same way as a TV photographer entering someone's home without permission.[91] The court said that Gannett could not hide behind the First Amendment when it "voluntarily undertook to self-censor itself by agreeing that Anderson would not be recognizable."[92] The court said Gannett was responsible for ensuring the photograph could not be recognized by Anderson's family and friends, and, because it failed to do so, it should share in paying the 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,[93] a mother and her children sued the Valley News 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 that in 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 reporter had 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. The photograph was accompanied by the cutline, "Heather Morgan, a victim of sexual abuse, talks with her mother, Diane."[94] Chambon said she consented to 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 silhouette. Morgan alleged that she and the children had suffered damages as a result 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 Morgan, had appeared in a state court criminal complaint against the father, the matter was newsworthy and the facts of the case were in the public domain.[95] Therefore, the Morgans could not win an action for invasion of privacy. Neither was the publication outrageous enough to support an intentional infliction of emotional distress claim. Then, the court said that the Morgans had not established that they could prove by clear and convincing evidence the elements of the tort of intentional misrepresentation (fraud) when the reporter broke the promise to keep certain information confidential.[96] 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 court cited the Cohen opinion of the Minnesota Court of Appeals, in which the court said that Cowles Media's breach of the agreement did not establish a cause of action for fraudulent misrepresentation because at the time the reporters made the agreement, they did not intend to breach the agreement. Because the journalists intended to perform the contracts with Cohen, they did not misrepresent a present or past fact.[97] Second, the court in Morgan said, under Pennsylvania law the plaintiff had to establish actual monetary loss to win a claim of intentional misrepresentation, and the Morgans had failed to do so.[98] The court granted the media defendants' motion for summary judgment. 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 interest because the alleged perpetrator of sexual abuse of his daughter was a former police chief. The facts of Morgan differ from Cohen, in which the pledge was to keep confidential the identity of the source of information, Dan Cohen, because that information was not public. Although Cohen revealed information from a court record, the information that he was the source was confidential. Morgan also differs from Anderson, in which the pledge was to keep confidential personal medical information, information that was not public. 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 a therapist. Both situations were the subject of court action. The daughter's name had appeared in a criminal complaint against her father, and Ruzicka's name in conjunction with the civil suit against the therapist. They differ, however, in that Morgan involved a crime by a public official, a former police chief, while Ruzicka involved a private therapist breaching professional standards of practice. Another difference is that in 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 Ruzicka the plaintiff had alleged breach of contract, just as Cohen had done. Just as in Cohen the Minnesota Supreme Court had permitted the addition of a claim for promissory estoppel, likewise after Cohen was decided, the federal court of appeals permitted Ruzicka to amend her suit by adding an action for promissory estoppel. Although newsworthiness of a story about a police chief's crime may elevate the value of naming the individuals in Morgan, the plaintiff's failure to include a claim of breach of contract in 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 making promises of confidentiality to sources might create binding legal commitments to keep the promises. Relying on Cohen, the courts in Ruzicka and Anderson sustained the breach of promise claims against the media. What distinguishes the Pennsylvania case, in which the court found in favor of the media, is that the plaintiffs failed to pursue a claim for breach of contract or promise. In the cases in which the plaintiffs pursued an appropriate cause of action for the violation of a promise, such as promissory estoppel, proved a breach of a clear and definite promise, and showed harm resulting from the broken promise, the courts found in favor of the plaintiffs. 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 two instances journalists have legally binding commitments to their sources. First, whether journalists who signed an agreement with the U.S. government on how and what to report about the Persian Gulf War waived their First Amendment protections is discussed. Second, whether Connie Chung's broken promise of confidentiality to Kathleen Gingrich represents a set of facts that would support a successful lawsuit for breach of promise is addressed. 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."[99] The rules mandated that reporters going into a combat zone be accompanied by military public affairs officers and enumerated the categories of information that could not be reported because publication "could jeopardize operations and endanger lives if published."[100] Reporters were not to give specific information on tactics and operations. They were to use vague terms to describe military operations, such as "low" and "fast," and, so as not to give away unit locations, to provide general datelines, such as "Near the Kuwait border." The guidelines stipulated that only reporters in media pools assigned to combat units could go into forward areas. Also, pool products would be subject to review before release "to determine if they contain sensitive information about military plans, capabilities, operations or vulnerabilities . . . that would jeopardize the outcome of an operation or the safety of U.S. or coalition forces." However, the rules promised that "[m]aterial will be examined solely for its conformance to the attached ground rules, not for its potential to express criticism or cause embarrassment."[101] 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.[102] Just as Frank Snepp and Victor Marchetti had to sign secrecy agreements and agree to submit their publications for prior review by the government, so too journalists desiring press credentials and participation in press pools in the Gulf War had to sign a statement agreeing to follow the guidelines, including that they would submit their news products for copy review and not publish sensitive information. The question raised by this requirement is whether journalists relinquished First Amendment rights by signing the military guidelines and agreeing to copy review as a condition for participation in combat press pools. Did journalists in agreeing to copy review to gain access to press pools enter a relationship with the government similar to that of CIA employees, whose publications the courts 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 review for classified information. In Knopf v. Colby, the Court of Appeals for the Fourth Circuit said the First Amendment did not prohibit an injunction against the disclosure of properly classified information when "the classified information was acquired, during the course of his employment, by an employee of a United States agency or department in which such information is handled and its disclosure would violate a solemn agreement made by the employee."[103] By signing the confidentiality agreement as a condition of employment, the employee relinquished his First Amendment right to publish such information. Likewise, in Snepp v. United States,[104] the U.S. Supreme Court said that a prepublication agreement signed by a Central Intelligence Agency employee was not an unconstitutional prior restraint but a valid and binding contract. The Court said that Snepp had conceded the right to publish what he learned while a CIA employee unless he first submitted to prepublication review. The Court found the employee secrecy agreement reasonable and not an unconstitutional prior restraint because of the national security interests involved and the CIA's statutory mandate to "protect intelligence sources and methods from disclosure."[105] Journalists in agreeing to copy review to gain access to press pools did not enter the same relationship to the government as did CIA employees whose publications the courts ruled in Knopf v. Colby and Snepp v. United States were constitutionally restrained and, in Snepp's case, constitutionally punished. Although journalists signed the military guidelines for press coverage, the relationship between journalists and the 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. The journalists had not joined the U.S. military. They remained civilians working for non-governmental news organizations. They were not employees or consultants of the U.S. armed forces. Even the provision of the Uniform Code of Military Justice that extended its authority to "all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States"[106] was repealed in 1956. Therefore there was no statutory basis for extending the legal principle under which government employee Snepp was constitutionally punished for breaking his contract with regard to publication about the CIA to journalists for failin 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 relinquish some First Amendment protections as a condition of employment. In Parker v. Levy , the Court recognized that soldiers enjoyed some but not all of the First Amendment protections of civilians. "While members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of these protections," the Court said.[107] 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 military system. The military planners, in conceiving the review system, may have wanted to produce a Snepp-like relationship between military censors and press pool members. However, the press did not sign away its First Amendment rights to cover the war. The government cannot create an unconstitutional requirement on the press and expect the Court to declare it constitutional because the press submitted to the requirement. The military has the burden to justify the creation of a copy review system, which in the Gulf was put into place before journalists agreed to the system, and to show a compelling national security interest why a journalist's publication should be restrained or punished. The Court said the government could punish Snepp even though he had not revealed any 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 the agreement to do their jobs as journalists. The military in planning the reporting requirements understood the limitations of the agreement signed by journalists. For example, the procedure for copy review left the ultimate decision about publication in the hands of the reporter's editor.[108] 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 who agreed to participate under its conditions and pledged to submit their work to military censors could be enjoined from publishing what they knew, or more effectively, punished for failing to play by the military's rules. However, the analogy between the Gulf War contract and the promise in Cohen fails. White distinguished Cohen from Daily Mail and Florida Star because in those cases, "the State itself defined the content of publications that would trigger liability,"[109] while in Cohen, the private parties themselves determined the scope of their legal obligations in the oral contract. In the contract between the press and the military, it was the military that determined the content that would trigger the punishment. The analysis of the Gulf War restrictions is not controlled by Cohen. Unlike Cohen in which the Minnesota Court of Appeals found there was no state action to trigger First Amendment scrutiny,[110] the agreement between the press and the military involved government action limiting publication. The government could not force the press to sign the agreement and thereby waive its First Amendment rights. Therefore, for the government to punish the press for its breach of the guidelines, it must first prove that the rules served a compelling national interest and the publication of the information put the national security interest into jeopardy. Just showing that the journalists did not play by the rules of the agreement they signed 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 they signed a government-reporter contract as a condition of reporting the war. A different scenario involving a promise a journalist made to a private individual, in this case Connie Chung's pledge to Kathleen Gingrich, is analyzed in this section.[111] The facts of Connie Chung's promise of confidentiality to Kathleen Gingrich are clear because the recorded interview was broadcast on the January 5, 1995, edition of CBS-TV's "Eye to 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 to divulge her son's statement about Hillary Clinton, Chung told Gingrich, "Why don't you just whisper it to me, just between you and me."[112] 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 did not suffer harm. In fact, Gingrich has benefited from the publication of her secret. She received a letter from First Lady Hillary Clinton with an invitation to tour the White House.[113] And since then, she and son Newt have 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 pledge of confidentiality failed partly because she could not establish actual loss.[114] 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 would not be identified or identifiable, which Ruzicka reiterated to the reporter prior to publication.[115] Inducing a source to whisper her secret "just between you and me" in front of video cameras, a camera crew and a producer 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 seem to be any grave injustice that needs to be righted by the enforcement of the agreement. If anything, the episode blackened Connie Chung's reputation as a credible journalist and reinforced the public's distrust for the media.[116] 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 by legally binding promises between a publisher and the source of information. 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 who sign 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. However, independent reporters might not lose their First Amendment protections, even if they are forced to sign agreements not to report information, unless the government can make its case for a compelling national security 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 identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm. However, Connie Chung's request that Kathleen Gingrich whisper her remark "just between you and me," in which the source did not whisper it just to Chung but to a camera crew and did not suffer any harm, is probably not actionable under a breach of promise tort. 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 ethics, 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 information 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 source understands that all information is on the record, unless otherwise explicitly agreed, should inform the source of this fact at the earliest opportunity.[117] Failing to abide by these principles of ethical practice, as happened in the cases discussed above, might result in a successful legal action for breaking a promise of confidentiality. [1] Eye to Eye With Connie Chung ( CBS television broadcast, Jan. 5, 1995). [2] Felix Winternitz, When Unn amed Sources are Banned, The Quill, Oct. 1989, at 38. [3] Richard Scott Mowrer, The Press is in Danger of Manipulation When it Quotes Anonymous Sources, Presstime, June 1987, at 74. [4] See Snepp v. United States, 4 44 U.S. 507 (1980), and United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972). [5] See Cohen v. Cowles Media Co., 501 U.S. 663 (1991); Ruzicka v. Conde Nast Publ ications Inc., 999 F.2d. 1319 (8th Cir. 1993); Anderson v. Strong Mem. Hosp ., 573 N.Y.S.2d 828 (N.Y. Sup. Ct. 1991). [6] Fro m Newt's Mom's Lips to Connie Chung's Ear: A Controversy is Born, The Chica go Tribune, Jan. 4, 1995, at 2. [7] Restate ment (Second) of the Law of Contracts, _ 1 (1988). [8] Id. at _ 2 (198 8). [9] Id. at _ 314 (1988). [10] See Jerome A. Barron, Cohen v. C owles Media and its Significance for First Amen dment Law and Journalism, 3 Wm. & Mary Bill of Rts. J. 419 (1994); Matthew Bunker and Sigman Splichal, Legally Enforceable Repor ter-Source Agreements: Chilling News Gathering at the Source, 70 Journalism Q. 939 (1993); Kyu Ho Youm and Harry W. Stonecipher, The Legal Bounds of Confidentiality Promises: Promis sory Estoppel and the First Amendment, 45 Federal Com munications L. J. 63 (1992); and Damages for Broken Promise Upheld, The New s Media & the Law, Winter 1992, at 2. [11] 444 U. S. 507 (1980). [12] 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). [13] 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). [14 ] United States v. Marchetti, No. 179-72-A (E.D.Va. 1972). [15] Marche tti, 466 F. 2d at 1314 (citing 50 U.S.C. _ 403(d)(3)). [16] Id. at 1315 . [17] 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). [18] Knopf, 509 F.2d at 136 6. [19] Id. at 1367. [20] Halperin & Hoffman, supra note 13, at 111 . See Victor Marchetti & John Marks, The CIA an d the Cult of Intelligence (1974)(containing 168 blank spaces marked "DELET ED" to indicate the 168 government imposed deletions) . [21] Knopf, 509 F.2d at 1367. [22] 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 government employees 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.) [23] Knopf, 509 F.2d at 1371. [24] Id. at 1370. [25] Knopf, Inc. v. Colby, cert. denied, 421 U.S. 992 (19 75). [26] 403 U.S. 713 (1971). [27] United States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir. 1972). [28] Snepp v. United States, 444 U.S. 507, 508 (1980). [29] Snepp v. United States, 456 F. Supp. 176, 179 (E .D. Va. 1978). [30] Id. at 180. [31] Snepp v. United States, 595 F. 2d 926, 935 (4th Cir. 1979). [32] Id. at 935-36. [33] Snepp v. Unit ed States, 444 U.S. 507, 509 (citing 50 U.S.C. _ 403(d)(3)). [34] Id. a t 511. [35] Id. at 513. [36] Id. at 515. [37] Id. at 516 (Steve ns, J., dissenting). [38] Id. at 516-17. [39] Id. at 520. [40] Id. at 526. [41] Id. (citing New York Times v. United States, 403 U.S . 713 (1971), and Nebraska Press Association v. Stuart, 427 U.S. 539 (19 76)). [42] U.S. v. Snepp, 897 F.2d 138, 140 (4th Cir. 1990), cert. deni ed., 111 S. Ct. 57 (1990). [43] Id. [44] Freedman v. Maryland, 380 U.S. 51, 59 (1965). [45] United States v. M archetti, 466 F.2d 1309, 1317 (4th Cir. 1972). [46] 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 placing t 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.). [47] Id. at 141. [48] 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). [49] U.S. v. Morison, 844 F.2d 1057 (4th Cir. 1988). [50] 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"). [51] 18 U.S.C. _ 793(d) and (e). [52] M orison, 844 F.2d at 1062 (quoting 18 U.S.C.A. _ 793(d)). [53] Id. at 10 63. [54] Id. at 1068. [55] Id. [56] 444 U.S. 507 (1980). [57 ] Snepp v. United States, 595 F.2d 926, 235 (4th Cir. 1979). [58] 15 M edia L. Rep. (BNA) 2288 (D. Minn. 1988); aff'd in part and rev'd in part, 4 45 N.W. 2d 248 (Minn. Ct. App. 1989); aff'd in part and rev'd in part, 457 N.W.2d 199 (Minn. 1990); rev'd, 501 U.S. 663 (1991). [59] 445 N.W. 2d at 252. [60] 501 U.S. at 665. [61] Id. [62] 445 N.W.2d at 254. [63] Id. at 255 . [64] 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 l egally binding contract, that usually involved an offer, acceptance and con sideration for 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 ondition cons titutes acceptance and the consideration is the promise of confidentiality to the source and from the source is the information given the reporter. Kyu Ho Youm, supra note 10, at 66.). [65] 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 prevent injustice." Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992). [66] 457 N.W.2d at 203. [67] Cohen v. Cowles Media, 501 U.S. 663, 66 8 (1991). [68] 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)). [6 9] Id. at 670. [70] Id. at 672. [71] Cohen v. Cowles Media, 479 N. W.2d 387 (Minn. 1992). [72] Cohen, 501 U.S. at 674 (Blackmun, J., disse nting). [73] 485 U.S. 46 (1988). [74] Cohen, 501 U.S. at 675. [7 5] Id. at 677 (Souter, J., dissenting)(quoting Employment Division, Dept. of Human Resources of Oregon v. Smith, 110 S.Ct . 1595, 1612 (1990)). [76] Id. at 678. [77] Id. at 679. [78] Ru zicka v. Conde Nast Publications Inc., 999 F.2d. 1319, 21 Media L. Rep. (BN A) 1822 (8th Cir. 1993); Anderson v. Strong Mem. Hosp., 573 N.Y.S.2d 828 (N.Y. Sup. Ct. 1991). [79] Ruzicka v. Conde Nast Publications Inc., 939 F.2d 578 (8th Cir. 1991). [80] Id. at 580 (Ruzicka also served on a st ate task force on therapist exploitation of pat ients, spoke about the abuse she suffered at a public hearing before the Mi nnesota legislature, and discussed her abuse at a nat ional conference.). [81] Id. [82] Ruzicka v. Conde Nast Publication s Inc., 733 F.Supp. 1289 (D. Minn. 1990). [83] Ruzicka, 939 F.2d at 579 . [84] Ruzicka v. Conde Nast Publications, Inc., 794 F. Supp. 303 (D. M inn. 1992). [85] Ruzicka v. Conde Nast Publications Inc., 999 F.2d. 131 9, 1323 (8th Cir. 1993). [86] Id. at 1321. [87] Id. at 1323 (quotin g Cohen v. Cowles Media Co., 479 N.W.2d 392 (Minn. 1992)). [88] 573 N.Y .S.2d 828 (N.Y. Sup. Ct. 1991). [89] Id. at 830. [90] 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 emotional distress. [91] Anderson, 473 N.Y.S.2d at 832. [92] Id. [93] 780 F. Supp. 307 (W.D.Pa. 1992). [94] Id. at 309. [9 5] Id. at 310. [96] Id. at 311. [97] 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.) [98] Id. at 309. [99] Penta gon Rules on Media Access to the Persian Gulf War: Hearing Before the Senat e Committee on Governmental Affairs, 102nd Cong ., lst Sess. 327 (1991). [100] Id. [101] Id. [102] Pete Willia ms, Transcript of teleconference briefing on ground rules and guidelines governing media coverage of the Persian Gulf War, Jan. 12, 1991. [103] 509 F.2d 1362, 1370 (4th Cir. 1975). [104] 444 U.S. 507 (1980). [105 ] Id. at 509 (1980)(citing 50 U.S.C. _ 403(d)(3)). [106] Uniform Code of Military Justice, 552 U.S.C. 552 (10,11). [107] Parker v. Levy, 417 U.S. 733 (1974). [108] Pentagon Rules on Media Access to the Persian Gu lf War: Hearing Before the Senate Committee on 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 ultimate decisio n by the reporter's editor back in the United States.) [109] Cohen v. C owles Media, 501 U.S. 663, 670 (1991). [110] Cohen v. Cowles Media, 445 N.W.2d 248, 254 (Minn. App. 1989). [111] 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 York Times correspondent Marian Burros had published off-the-record remarks by First Lady Hillary Clinton. It is unclear what inform ation was on the record and what was off the record. Joseph Lelyveld, executive editor of the New York Times, disputed whether t he 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. [112] From Ne wt's Mom's Lips to Connie Chung's Ear: A Controversy is Born, Chicago Tribune, Jan. 4, 1995, at 2. [113] Thomas B. Eds all, Jack May Run if Clinton Won't Stand Firm, The Washington Post, March 2, 1995, at A9. [114] Morgan By and Through Chambon v. Celender, 780 F.Supp. 307 (W.D.Pa 1992). [115] 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). [116] Arthur Spiegelman, Gingrich Mom Interview Causes Pr ess Storm, Reuters News Service, Jan. 4, 1995. [117] Associated Press Managing Editors, Declaration of Ethics, 1994.