How newspaper editors feel about confidential sources in wake of Cohen v. Cowles

How newspaper editors feel about confidential sources in wake of Cohen v. Cowles

Charles N Davis

A survey of editors of large dailies finds Cohen v. Cowles has little impact on policies regarding confidential sources.

The use of confidential sources is often considered an integral part of the news gathering process, a necessary practice that allows journalists to uncover public corruption, waste and inefficiency from sources hesitant for fear of retaliation.l The frequent appearance of anonymous sources in both print and broadcast stories serves as evidence of the media’s reliance on confidentiality.2 Because of their importance to investigative reporting, news media executives traditionally viewed confidentiality agreements as a sacred trust between the source and the reporter.3 The sanctity of confidential source agreements is illustrated by the many state shield laws, which protect reporters from being forced to reveal their anonymous sources,4 and by the hands-off approach which long typified newsroom management’s policies regarding confidential source agreements.5

In 1991, however, the newspaper industry was rocked by the U.S. Supreme Court’s decision in Cohen v. Cowles Media Co.6 Cohen held that the First Amendment did not prevent a news source, whose identity was revealed after having been promised confidentiality, from suing under state contract law. The court reversed a Minnesota Supreme Court decision declaring the reportersource agreement invalid and striking down the award of damages based on promissory estoppel.7 On remand, the Minnesota court reinstated a $200,000 jury award under the doctrine of promissory estoppel.8

The reaction of the press and First Amendment commentators to the Supreme Court’s decision was immediate and critical of the justices’ reasoning.9The criticism pointed primarily to the chilling effect the enforcement of reporter-source agreements would have on the newsgathering and editorial decision making processes.10

The facts of the Cohen case likely would give pause to any newsroom manager responsible for monitoring confidential source usage and policy. Dan Cohen was the public relations director for Minnesota Independent-Republican gubernatorial candidate Wheelock Whitney during the 1982 election. In the closing days of the campaign, Cohen offered reporters from news organizations some dirt on Marlene Johnson, the Democratic candidate for lieutenant governor, in exchange for their promise that he would not be identified as the source. After receiving their promise of confidentiality, Cohen revealed that in 1970, Johnson had been arrested for shoplifting $6 worth of sewing supplies and that she had also been arrested for unlawful assembly at a protest rally during the 1960s. Despite the promises, the editors of the two newspapers involved, over the objections of their reporters, decided that the newsworthiness of the source’s identity was sufficient to override the promise of confidentiality, and the source was identified in print. As a result, Cohen was fired.11

Cohen filed suit against the papers in Minnesota District Court,12 winning $200,000 in compensatory damages and $500,000 in punitive damages at trial.13A panel of the state Court of Appeals affirmed the compensatory damages award but eliminated the punitive damages after dismissing Cohen’s claim of misrepresentation on the part of the defendants.14 At that point, the state supreme court denied recovery entirely before the U.S. Supreme Court revived the contractual claim by refusing to view the First Amendment as a barrier to enforcement of promissory estoppel against the news media.

The U.S. Supreme Court, in a 5-4 decision, said the First Amendment does not prohibit the use of Minnesota’s common law of promissory estoppel when journalists break promises made to sources.15 Justice Byron R. White, writing for the court’s majority, said that a long line of cases had established that the First Amendment does not immunize the press when reporters violate laws that apply to everyone.16 The Court’s majority discounted as constitutionally insignificant any effect of Minnesota’s law of promissory estoppel on reporting. Any effect of the law to limit news coverage, the court said, was an incidental consequence of ensuring that laws created to make sure promises were kept applied to everyone.17

The Supreme Court remanded Cohen to the Minnesota Supreme Court to determine whether Cohen could establish that he met the requirements of promissory estoppel under state law. The Minnesota court, in its second review of the case, upheld the jury’s award to Cohen of $200,000 in compensatory damages, ruling that Cohen met the requirements for promissory estoppel.18

Literature review

The high cost of a lengthy legal struggle, compounded by the adverse judgment in Cohen, created new concerns regarding confidential sources. Newsroom executives and media attorneys typically are split over the benefits of written newsroom standards: many editors favor specific policies governing confidential source usage, while many media attorneys favor pre-publication review, fearing that the existence of documented policies can later be used against the newspaper in court.

Previous research concerning newspaper use of confidential sources focused on frequency of confidential source usage or on public opinion about the use of anonymous sources. The use of such sources is apparently common, according to a 1981 study by Stephen Hess. Hess found that reporters in Washington, D.C. attributed 28 percent of their interview source material to off the record sources.19Seventy-one percent of the reporters surveyed said the public gains valuable information from the use of anonymous sources. Hess found that overall, 13 percent of the quotations in a representative sample of daily newspapers were not attributed to named sources, and that front-page stories and stories about foreign policy employed the largest number of anonymous sources.

Hugh Culbertson’s research in the late 1970s and early 1980s provided the first systematic study of veiled attribution, and showed that editors of the period were concerned about widespread use of confidential sources. Culbertson found in a 1978 study that between 70 and 75 percent of Time and Newsweek stories and about one-third of newspaper stories quoted anonymous sources.20 In a later study, Culbertson found that editors were troubled by the frequent and perhaps unnecessary – use of veiled attribution. Editors estimated that 56 percent of all veiled sources found in American newspaper stories in 1978-1979 would have talked for attribution if reporters would have pressed the issue.21 A subsequent study by Culbertson revealed that a third of editors expressed dissatisfaction with confidential source policy in their own newsrooms, citing competitive pressures as the catalyst for veiled attribution.22

An analysis of newspaper stories on social issues by Michael Ryan found that 61 percent of all sentences contained no attribution and more than ten percent of all sentences that contained opinions, judgments or inferences had no attribution.23

Published studies concerning the public’s views on the use of anonymous sources support the contention that readers understand the role of anonymous sources in investigative journalism and accept the practice of confidential source usage. John Adams found that audience members give high credibility ratings to anonymous sources. Adams concluded, however, that the subject matter of a story, prior knowledge and the predispositions of readers or viewers toward the subject matter have a greater effect on credibility than does the source of the information.24

These studies shed little light on newsroom policies regarding confidential source usage, however, and none examined the subject in the wake of Cohen. The only published study of confidential source policy predates Cohen by nearly a decade. Tim Wulfmeyer’s 1983 study examined newsroom confidential source policies in the wake of the Janet Cooke/Washington Post affair, in which a Post reporter was stripped of a Pulitzer Prize after it was revealed that her prize-winning story was based on a fabricated confidential source. The study found that 24 percent of the newspapers and television stations surveyed had formal, written policies covering the use of anonymous sources in stories. Seventy-one percent had informal policies on confidential sources.

But the dynamics of confidential source policy were radically altered by the U.S. Supreme Court’s opinion in Cohen. Newspapers now face legal liability for broken promises of confidentiality. The passage of time since Cohen and the increasing interest in confidential source policies prompted development of this study of how newsrooms have reacted to the legal ramifications of confidential source relationships.

The purposes of this study were to review commentary and research concerning the use of confidential sources in general and to examine current policies and practices of large newspapers regarding the use of such sources in news stories in order to set some benchmarks for future research.

Research questions

To add to the body of knowledge on confidential source policy, the use of confidential sources by newspapers and the effects of Cohen on newspaper policies and practices, the researchers surveyed newspaper editors at newspapers that have more than 100,000 in daily audited circulation during the summer of 1994.

The following primary research questions were addressed:

1) How many of the largest newspapers have formal or informal policies governing the use of confidential sources?

2) What are the basic elements of policies about confiden tial sources?

3) What have been the effects of Cohen on confidential source policy? secondary research questions examined the frequency of newspaper observance of the following precautions:

Using confidential sources

Making confidentiality agreements;

Requiring that editors know the identity of a confidential source;

Checking the accuracy of information obtained from confidential sources;

Checking the credentials of prospective confidential sources; and

Having legal counsel review confidential source material.

Method

The survey instrument was designed after consultation with journalism educators and media lawyers.25 It was pre-tested with 11 journalists, journalism educators and media lawyers. Some questions were open-ended, some required a yes/no indication and others sought responses to a 4-or 5-point scale.

The mail survey of the highest-ranking editor of 106 daily newspapers with audited daily circulation above 100,000 was conducted during the summer of 1994. Large newspapers were surveyed because it was believed that such media organizations would be the most likely to conduct the investigative reporting that so often requires the use of confidential sources.26 A cover letter explaining the survey and a stamped, self-addressed envelope accompanied each questionnaire. Non-respondents received a follow-up mailing approximately one month after the first surveys were mailed.

Findings and discussion

Survey responses were received from 64 of the 106 large-circulation American daily newspapers surveyed, for a response rate of 60.4 percent. Ninety-two percent of the respondent newspapers use confidential sources in reporting. Onefourth of these newspapers said they used confidential sources frequently. Sixty-one percent said their use was occasional.

Ninety-two percent of the newspapers have a written or non-written policy governing the use of confidential sources. Forty percent of these policies are written. One noteworthy difference arose between the newspapers with written and non-written policies on confidential sources: respondents with a written policy use confidential sources less often than do respondents without a written policy (mean of 3.125 as opposed to 2.73; t=1.71, p

This difference may result from increased oversight of reporters when editors become involved in the determination of whether confidential sources may be used. The increased scrutiny that results when policies are implemented may be beneficial if confidential sources previously had been used when identified sources would serve equally well or without proper attention to the motives of those confidential sources.

However, the reduced use of confidential sources might also indicate that the involvement of management in the process has produced a chilling effect on the interaction of reporters and their sources. Such an effect may limit the ability of investigative reporters to function effectively through the use of confidential sources.

A profile drawn by the survey indicates that the typical newspaper policy on confidential sources: Permits the use of confidential sources only as a last resort (98.5 percent);

does not require reporters to sign a confidentiality agreement (98 percent) or to use confidential sources at their own risk (92 percent);

forbids personal attacks by anonymous sources (90.5 percent); does not require editors to meet or speak with confidential sources(90 percent);

requires that confidential sources be described as fully as possible (81.5 percent);

requires verification of all information obtained from confidential sources (75 percent);

requires that editors be told the names of confidential sources (77 percent); and;

does not subject stories using confidential sources to prepublication review by legal counsel (64.5 percent).

Cohen apparently has had little effect on newspaper policies on confidential sources. Despite high reported awareness of the court’s decision in Cohen, few major newspapers have altered confidential source policy since 1991. This is interesting, particularly given that a significant majority of newsroom managers reported that they have assumed direction of confidential source policy.

More than three-fourths of the newspapers identified the source of their policies (78 percent), and every one of them said top editors developed the policy. Media lawyers apparently have little input into formulation of newsroom policy, although a handful of editors said they asked lawyers to review their policies before implementation. More than three-quarters of the newspapers (77 percent) also said their policy had been in place for more than four years. A third of these confidential source policies had been reviewed or revised within the past year. Another third had been scrutinized within the past two to three years, and the final third had not been reviewed since before the 1991 Cohen decision. Thus, Cohen does not appear to have prompted any additional review of existing confidential source policies. Indeed, more than three-fourths of the newspapers (81 percent) said their confidential source policy had not changed in the wake of the decision.

This was not for lack of familiarity with the case. More than a third of the newspaper respondents said they were very familiar with the Cohen decision. Another 58 percent reported being either familiar or somewhat familiar with the case. Only 5 percent of the respondents reported that they were not familiar with Cohen.

The policies themselves typically deal only with who has authority to make a promise of confidentiality. Some policies are simple: reporters are or are not authorized to make promises of confidentiality without first communicating with an editor. Some policies are more complex, with factors to consider when determining whether to make a promise of confidentiality. One policy required approval of an executive editor for a promise of conditional confidentiality (a promise up to, but not beyond, the threat of litigation) and approval of the publisher for an absolute promise (which goes beyond even the threat of litigation to litigation itself).

Conclusion

This survey indicates that most large American daily newspapers use confidential sources at least occasionally for a wide array of story types. At the vast majority of these papers, the use of confidential sources is governed by a non-written policy established before Cohen. Most confidential source policies – both written and non-written – have been reviewed, but few of them changed since Cohen was handed down.

The survey’s findings indicate that despite dire predictions that Cohen would dramatically alter the use of confidential sources, few newsrooms actually have changed confidential source policy in the four years since the opinion was handed down. Articles published in journalism academic journals and law reviews predicted that the possibility of monetary awards for violations of promises of confidentiality “could make the media more willing to initiate change,”27 yet few editors felt that their policies merited change in the wake of Cohen. Although two-thirds of the newspapers had reviewed their policies since Cohen, only 19 percent had altered their policy as a result of that review. This indicates that either newspaper editors believe their pre-existing policies conform well to the lessons of Cohen, or they do not perceive Cohen to pose a threat to their operations.

Future studies should explore the link between written and nonconfidential source policies and the frequency of confidential source usage to attempt to ascertain whether such policies inhibit investigative reporting. In addition, researchers should attempt to measure the frequency and depth of communication among reporters, editors and counsel prior to the granting of confidentiality.

In short, the survey indicates that the courts’ ultimate decision to award damages to Dan Cohen has not yet had any substantial effect on newspaper policies regarding promises of confidentiality. Despite doomsday warnings by legal scholars, editors overwhelmingly reported that their policies were sufficient and that confidential sources were generally used only in exceptional circumstances. Cohen apparently has passed with little more than a ripple in major U.S. newsrooms. Only the test of time will determine whether current newsroom policies are sufficient to defeat future promissory estoppel claims.

Notes

1. Vincent Blasi, The Newsman’s Privilege: An Empirical Study. Michigan Law Review, 1971, p. 229; Hugh M. Culbertson, Veiled Attribution: An Element of Style?Journalism

Quarterly,1978, p. 456.

2. Paula S. Horvath-Niemeyer, Contracts and Confidential Sources: The Implications of Cohen v. Cowles Media. Journalism Quarterly,1990, p. 1078, citing Blasi, op.cit.; K. Tim Wulfmeyer, Use of Anonymous Sources in Journalism. Newspaper Research Journal, 1983, p. 49.

3. Horvath-Niemeyer, op.cit., p. 1073.

4. Twenty-eight states have enacted shield laws. See Confidential Sources & Information:A Practical Guide for Reporters in the 50 States. News Media & the Law, Fall 1990, pullout.

5. Byron St. Dizier, Reporters’ Use of Confidential Sources, 1974 and 1984: A Comparative Study. Newspaper Research Journal, 1985, p. 44. 6.111 S.Ct. 2513 (1991). 7.457 N.W. 2d 199 (Minn. 1990).

8.479 N.W.2d 387 (Minn. 1992). The Restatement (Second) of Contracts, Sec. 90(1) provides: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

9. See. e.g. Martin Garbus, The Big Chill on Free Speech. Newsday, July 4,1991, p. 63 (The Supreme Court concluded, in effect, that the right to publish information that could affect the outcome of an election is less important than the right of a confidential source to punish the media for revealing his identity.); Linda Greenhouse, Justices Rule Press Can be Sued for Divulging a Source’s Identity. New York Times, June 25,1991, p. A21; David G. Savage, Media Must Keep Promises to Sources, Justices Rule. Los Angeles Times, June 25,1991, p. Al.

10. Horvath-Niemeyer, Contracts and Confidential Sources, op.cit. 11. 457 N.W.2d 199, 201-02 (Minn.1990).

12.14 Media Law Reporter 1460 (Minn. Dis. Ct.1987) (denying defendant newspapers’ motions for summary judgment).

13. 15 Media Law Reporter 2288 (Minn. Dist. Ct.1988). 14. 445 N.W.2d 248 (Minn. Ct. App. 1989). 15.111 S.Ct. 2513 (1991).

16. See e.g., Branzburg v. Hayes, 408 U.S. 665 (1972); Leathers v. Medlock,111 S.Ct. 1438 (1991). 17. Ibid., p. 2525. 18. 479 N.W.2d 387 (Minn.1992).

19. Stephen Hess, The Washington Reporters. Washington: The Brookings Institution, 1981, pp. 19-20.

20. Culbertson, Veiled Attribution…, op.cit.

21. Hugh M. Culbertson, Leaks: A Dilemma for Editors as Well as Officials. Journalism Quarterly, Autumn 1980, p. 402.

22. Hugh M. Culbertson, Survey Shows Editors Divided on Handling Unnamed Sources. presstime, August 1980, pp. 25-26.

23. Michael Ryan, Reports, Inferences and Judgments in News Coverage on Social

Issues. Journalism Quarterly, Autumn 1979, p. 497. 24. John B. Adams, The Relative Credibility of20 Unnamed News Sources. Journalism Quarterly, Winter 1962; Unnamed Sources and the News: A Follow-up Study. Journalism Quarterly, Spring 1964, p. 262.

25. A copy of the questionnaire is available from the authors. 26. See, e.g., K. Tim Wulfmeyer, Use of Anonymous Sources, op.cit, Brian S. Brooks, George Kennedy, Daryl Moen and Don Ranly, News Reporting and Writing. New York: St. Martin Press, 1980, pp. 401-402.

27. Horvath-Neimeyer, Contracts and Confidential Sources, op.cit. p. 1082. See also e.g., Robert E. Drechsel, Media Ethics and Media Law: The Transformation of Moral Obligation into Legal Principle. Notre Dame Journal of Legal Ethics & Public Policy, 1992, p. 5; Patrick M. Garry, The Trouble with Confidential Sources: A criticism of the Supreme Court’s Interest-Group View of the First Amendment in Cohen v. Cowles Media Co. Hastings Comm. & Ent. Law Journal,1992, p. 403; Kyu Ho Youm and Harry W. Stonecipher, The Legal Bounds of Confidentiality Promises: Promissory Estoppel and the First Amendment. Fed. Comm. Law Journal,1992, p. 63; Timothy J. Fallon, Note: Stop the Presses: Reporter-Source Confidentiality Agreements and the Case for Enforcement. B.C. Law Review, 1992, p. 599; Susan S. Greenebaum, Comment: Confidentiality Agreements Between the Press and its Sources: Cohen v. Cowles Media Co. Washington University Journal of Urban and Contemporary Law,1992, p. 243.

Davis is a faculty member at Southern Methodist University in Dallas, Texas; Ross at Washington State University in Pullman and Gates at Appalachian State University in Boone, North Carolina.

Copyright E.W. Scripps School of Journalism Summer/Fall 1996

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