Cohen v. Cowles Media Company/Dissent Blackmun

Justice BLACKMUN, with whom Justice MARSHALL and Justice SOUTER join, dissenting.

I agree with the Court that the decision of the Supreme Court of Minnesota rested on federal grounds and that the judicial enforcement of petitioner's promissory estoppel claim constitutes state action under the Fourteenth Amendment. I do not agree, however, that the use of that claim to penalize the reporting of truthful information regarding a political campaign does not violate the First Amendment. Accordingly, I dissent.

The majority concludes that this case is not controlled by the decision in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), to the effect that a State may not punish the publication of lawfully obtained, truthful information "absent a need to further a state interest of the highest order." Id., at 103, 99 S.Ct., at 2671. Instead, we are told, the controlling precedent is "the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Ante, at 669. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193, 66 S.Ct. 494, 497-498, 90 L.Ed. 614 (1946); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 581-583, 103 S.Ct. 1365, 1369-1371, 75 L.Ed.2d 295 (1983). I disagree.

I do not read the decision of the Supreme Court of Minnesota to create any exception to or immunity from the laws of that State for members of the press. In my view, the court's decision is premised, not on the identity of the speaker, but on the speech itself. Thus, the court found it to be of "critical significance," that "the promise of anonymity arises in the classic First Amendment context of the quintessential public debate in our democratic society, namely, a political source involved in a political campaign." 457 N.W.2d 199, 205 (1990); see also id., at 204, n. 6 ("New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 . . . (1964), holds that a state may not adopt a state rule of law to impose impermissible restrictions on the federal constitutional freedoms of speech and press"). Necessarily, the First Amendment protection afforded respondents would be equally available to non-media defendants. See, e.g., Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938) ("The liberty of the press is not confined to newspapers and periodicals. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion"). The majority's admonition that " '[t]he publisher of a newspaper has no special immunity from the application of general laws,' " ante, at 670, and its reliance on the cases that support that principle, are therefore misplaced.

In Branzburg, for example, this Court found it significant that "these cases involve no intrusions upon speech or assembly, no . . . restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. . . . [N]o penalty, civil or criminal, related to the content of published material is at issue here." 408 U.S., at 681, 92 S.Ct., at 2657. Indeed, "[t]he sole issue before us" in Branzburg was "the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime." Id., at 682, 92 S.Ct., at 2657. See also Associated Press v. NLRB, 301 U.S. 103, 133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937); Associated Press v. United States, 326 U.S. 1, 20, n. 18, 65 S.Ct. 1416, 1425, n. 18, 89 L.Ed. 2013 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 (1969). In short, these cases did not involve the imposition of liability based upon the content of speech.

Contrary to the majority, I regard our decision in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), to be precisely on point. There, we found that the use of a claim of intentional infliction of emotional distress to impose liability for the publication of a satirical critique violated the First Amendment. There was no doubt that Virginia's tort of intentional infliction of emotional distress was "a law of general applicability" unrelated to the suppression of speech. Nonetheless, a unanimous Court found that, when used to penalize the expression of opinion, the law was subject to the strictures of the First Amendment. In applying that principle, we concluded, id., at 56, 108 S.Ct., at 882, that "public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' " as defined by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In so doing, we rejected the argument that Virginia's interest in protecting its citizens from emotional distress was sufficient to remove from First Amendment protection a "patently offensive" expression of opinion. 485 U.S., at 50, 108 S.Ct., at 879.

As in Hustler, the operation of Minnesota's doctrine of promissory estoppel in this case cannot be said to have a merely "incidental" burden on speech; the publication of important political speech is the claimed violation. Thus, as in Hustler, the law may not be enforced to punish the expression of truthful information or opinion. In the instant case, it is undisputed that the publication at issue was true.

To the extent that truthful speech may ever be sanctioned consistent with the First Amendment, it must be in furtherance of a state interest "of the highest order." Smith, 443 U.S., at 103, 99 S.Ct., at 2671. Because the Minnesota Supreme Court's opinion makes clear that the State's interest in enforcing its promissory estoppel doctrine in this case was far from compelling, see 457 N.W.2d, at 204-205, I would affirm that court's decision.

I respectfully dissent.