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.
^1 The only arguable exception is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). In Zacchini, a performer sued a news organization for appropriation of his "right to publicity value of his performance," id., at 565, 97 S.Ct., at 2852, after it broadcast the entirety of his act on local television. This Court held that the First Amendment did not bar the suit. We made clear, however, that our holding did not extend to the reporting of information about an event of public interest. We explained that "if . . . respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case." Id., at 569, 97 S.Ct., at 2854. Thus, Zacchini cannot support the majority's conclusion that "a law of general applicability," ante, at 670, may not violate the First Amendment when employed to penalize the dissemination of truthful information or the expression of opinion.
^2 The Virginia cause of action for intentional infliction of emotional distress at issue in Hustler provided for recovery where a plaintiff could demonstrate "that the defendant's conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff's emotional distress; and (4) caused emotional distress that was severe." 485 U.S., at 50, n. 3, 108 S.Ct., at 879, n. 3.
^3 The majority attempts to distinguish Hustler on the ground that there the plaintiff sought damages for injury to his state of mind whereas the petitioner here sought damages "for a breach of a promise that caused him to lose his job and lowered his earning capacity." Ante, at 671. I perceive no meaningful distinction between a statute that penalizes published speech in order to protect the individual's psychological well being or reputational interest, and one that exacts the same penalty in order to compensate the loss of employment or earning potential. Certainly, our decision in Hustler recognized no such distinction.
^4 The majority argues that, unlike the criminal sanctions we considered in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), the liability at issue here will not "punish" respondents in the strict sense of that word. Ante, at 670. While this may be true, we have long held that the imposition of civil liability based on protected expression constitutes "punishment" of speech for First Amendment purposes. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386, 93 S.Ct. 2553, 2559, 37 L.Ed.2d 669 (1973) ("In the context of a libelous advertisement . . . this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement") (emphasis added), citing New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) ("[P]unishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press") (emphasis added). Cf. New York Times, 376 U.S., at 297, 84 S.Ct., at 735 (Black, J., concurring) ("To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed") (emphasis added).
Though they be civil, the sanctions we review in this case are no more justifiable as "a cost of acquiring newsworthy material," ante, at 670, than were the libel damages at issue in New York Times, a permissible cost of disseminating newsworthy material.