Vol. 10 No. 2 (February 2000) pp. 83-85.
THE TAMING OF THE PRESS: COHEN v. COWLES MEDIA COMPANY by Elliot C. Rothenberg. Westport, Connecticut: Praeger Press, 1999.
296 pp. Cloth $39.95.
Reviewed by Ashlyn Kuersten, Department of Political Science, Western Michigan University.
In TAMING OF THE PRESS, Elliot Rothenberg presents an insider's view of a landmark Supreme Court case in the tradition of author and journalist Anthony Lewis. What is different is that Rothenberg was the attorney for Dan Cohen in the landmark COHEN v. COWLES MEDIA COMPANY (1991) case and not a journalist or scholar simply examining the case. His is a well-written, and well-argued book. There is extensive examination of the appellate process that makes this book a nice possible addition to an undergraduate First Amendment class. My criticism aside, Rothenberg tells a wonderful story. He takes the reader through the beginning stages of a lawsuit and the process of Supreme Court review, and he shows ultimately what a lead attorney of such a feat goes through.
The story of COHEN begins with Republican Wheelock Whitney's campaign for governor of Minnesota in 1982. Public court records indicated that Marlene Johnson, the Democratic candidate for lieutenant governor, had been convicted in 1970 of "petit theft" (shoplifting) and arrested for unlawful assembly at a construction site. Her conviction was later vacated. With the election the following week and Whitney trailing in the polls, his advisors agree that the documents should be shared with the media but only with assurances that the source would not be revealed. Dan Cohen, a lawyer and a minor player in the Whitney campaign, was chosen to disseminate the information to the press. Whitney's advisors told Cohen how to obtain promises of anonymity, which he received from all the media who obtained his documents.
Cohen was partly chosen to disseminate the information because he had some experience in dealing with the press. He had worked as a lawyer for the public relations firm of Martin-Williams that was working for the Whitney campaign. After he disseminated the information to the media and received assurances that his identity will be protected, he informed his public relations firm. They were not concerned because it meant more money from the Whitney campaign for them. Actually, the documents that he released to the media were innocuous. Nothing was fabricated, no papers had been stolen (it was all public record), no privacy was invaded, and Cohen did not doctor the documents. However, in a chain of events that led to the Supreme Court delivering one of their strongest rebukes ever to the media, Cohen ended up as a major player with much to lose.
The editors of the Star and Pioneer Press newspapers received the documents and decided to name Cohen as their source. The Star later realized Cohen might have a
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valid legal claim for breaking their promise of confidentiality to them, and it asked him to release their newspaper from their "agreement." Cohen refused. The Star then countered by making Cohen the focus of several articles. For example, "Johnson Arrest Disclosed by Whitney Ally" was the headline for a day.
When questioned by the media about Cohen's involvement in leaking the information to the media, the Whitney team abandoned Cohen. Candidate Whitney claimed he had not spoken to Cohen in months and, therefore, Cohen had acted purely on his own. The newspapers then investigated Cohen's record and reported his arrest years earlier for scalping Kentucky Derby Tickets. The newspapers never mentioned their confidentiality agreement with Cohen. Cohen's employers promptly fired him to distance themselves from Cohen. Several of the papers continued their criticisms of Cohen's release of the documents. A commentary claiming that violations of confidentiality promises were an "unspoken standard of journalism" was the only mention ever published of Cohen's agreement with the newspapers. The real story, the Star argued, was "his political dirty trick and not the two-bit shoplifting charge" against Johnson.
Cohen decided to sue, and he hired Rothenberg, a state legislator and soon-to-be candidate for state attorney general. Prior to COHEN, a newspaper's ultimate defense was that the First Amendment gave them the right to print anything factual regardless of prior agreements with the sources involved. So the First Amendment, in essence, superseded contract law. Rothenberg first stated that Cohen was willing to settle the case out of court but he had two conditions: the newspapers publicly apologize to him, and they admit that they had made an agreement with him that they ultimately broke (an ironic twist, considering that the Star had already admitted this in a commentary; nonetheless, they refuse to admit it legally). Had the newspapers agreed to Cohen's conditions, it would have limited Cohen's injuries for lost income and greatly decreased everyone's legal costs. As it happened, they changed First Amendment interpretation forever.
At this time, no one in American history had ever succeeded in holding any U.S. newspaper liable for publishing true information about a political campaign. NEW YORK TIMES v. SULLIVAN (1964) had established new privileges for newspapers that made it difficult for politicians to sue for libel. When a plaintiff claimed defamation, the defendant had to prove the charges were true. Additionally, and what made Cohen's case all the more difficult, is that SULLIVAN also held that a public figure must show "malice." TIME, INC. v. HILL (1967) also made Cohen's case more difficult. In this case the Court held that truthful accounts by the media could not be punished. In Cohen's case, there was no question that the story he released was truthful.
As the case worked its way to the Supreme Court, neither Cohen nor Rothenberg could get work because of the case. Being the enemy of the most powerful newspapers in town was not good business for anyone. Rothenberg worked on the case pro bono and found no lawyer volunteers in the community. As Rothenberg argues, the newspapers had "unlimited funds" to hire armies of legal talent, and the law was on their side. Yet, he contended that, although
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the First Amendment was intended to protect newspapers from censorship from the government nothing, in the Bill of Rights gives the press special privileges to harm private citizens. Indeed, he argued that Federalist 84 warns against too many protections for the press. He persevered, and challenged the media misconduct on the basis of contract law instead of tort law.
Cohen won at the state level and proceeded to the Supreme Court. Chapter 13 is an excellent overview of how a case makes its way to the Court and adds some interesting details from the perspective of the attorney in charge of a Supreme Court case. The Court ultimately ruled that media organizations that dishonor their promises are subject to the same law of contracts as the rest of the public, and are entitled to no special privileges set by the First Amendment. A newspaper that breaks a contract is to be treated like any other business. The Constitution gives no preferential treatment.
My criticisms are more with a few of the claims that Rothenberg makes that are not substantiated within the text. They surely make the text more interesting but I question their validity. A strong editor could have easily cleaned these matters up. For example, according to Rothenberg, Minnesota was a notorious anti-Semitic state and he feared that any jury would have a natural antipathy for someone named Cohen. As proof of this, he points to another person named Dan Cohen's 1969 unsuccessful bid for mayor of Minneapolis. Rothenberg claims that this Cohen's loss was solely because his opponent, Charles Stenvig, had a quintessentially Scandinavian name. However, he gives no evidence to support this claim. Further, he argues that during the COHEN case, no one in the Jewish community supported Cohen. Instead, they had embarked on a campaign denouncing Jewish American princess jokes. However, could it be that the American Jewish Committee does not support folks just because they are Jewish but instead for causes that help other members of the Jewish community? Further, there is some self-
aggrandizement that makes the reading tedious at times. For example, why the reader is told several times that Rothenberg continues to keep his membership in Mensa is never well explained. Rothenberg's image of himself as an underdog battling the system is also a bit overblown. A Harvard Law school grad will always find difficulty in convincing readers to sympathize with their "poverty." Nonetheless, this is an excellent book for students to see how a landmark case can begin with seemingly innocuous questions and then continue by the sweat of a single, very determined attorney.
COHEN v. COWLES MEDIA CO., 501 U.S. 663 (1991).
NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).
TIME, INC. v. HILL, 385 U.S. 374 (1967).