It was my privilege to organize and moderate a panel discussion in 2016 looking back at – and forward from – the U.S. Supreme Court’s 1991 ruling in Cohen v. Cowles Media Co. This occurred at the annual conference of AEJMC, the Association for Education in Journalism and Mass Communication. I am a member of AEJMC’s law and policy division. The confluence of events made it the perfect time and place for this discussion: Not only was it the 25th anniversary of the ruling, but for only the second time in its 104-year history, AEJMC’s conference was held in Minneapolis, the city that shared the case’s origins with its twin, St. Paul.
Et Seq.’s editors have been kind enough to include an audio recording of the discussion here. It speaks volumes thanks to the unique insights the panelists share. Thus, what I write here is not meant to supersede the recording, but merely to supplement it with a bit of context. As I attempted to do with the session itself, I will allow the superb panelists to speak for themselves.
The reader may wonder why a discussion of this ruling appears on Et Seq., the blog of the Harvard Law School Library. HLS is deeply woven into Cohen v. Cowles Media Co. The case papers are archived at HLS, thanks to the efforts of HLS graduate Elliot Rothenberg. Mr. Rothenberg, a participant in the panel, successfully represented Dan Cohen, himself a HLS graduate. (It should also be noted that this recording would not have materialized without the perseverance of Mr. Rothenberg.) In addition, Paul Hannah, another HLS graduate, not only was chief counsel to the St. Paul Pioneer Press during the Cohen case, he served on this panel as well.
Two other individuals also agreed to contribute to the discussion. First is Bill Salisbury, the Capitol bureau reporter for the Pioneer Press. During a 1982 meeting, he promised to keep Mr. Cohen’s identity confidential in exchange for sensitive information. When Mr. Salisbury’s editor overruled the promise, a door opened for a lawsuit. Second, Susan Keith, a former newspaper reporter and now an associate professor and media law expert at Rutgers University, served on the panel. Though not directly involved with Cohen v. Cowles Media Co., Dr. Keith provided a tremendously valuable perspective to the conversation.
While this discussion provided a small degree of grounding in the ruling, that was not its primary purpose. Instead, my goal with the panel was to 1) reflect on some aspects of the case with the perspective that 25 years provides, and 2) consider the ruling’s legacy over the past quarter century and to look ahead. Those interested in more complete foundational information might turn to Mr. Rothenberg’s book, The Taming of the Press and, of course, the ruling itself: 501 U.S. 663 (1991).
Those who listen to the recording will hear about a significant case that began when newspaper editors decided to break promises of confidentiality their reporters had made to a source, Mr. Cohen. At issue: Is that an editorial decision that is protected by the First Amendment’s press freedom clause? How has the ruling affected the news media’s ability to gather information? What has it done to the practice of utilizing anonymous sources? Did the ruling erode or enhance the news media’s First Amendment rights?
For me, there’s nothing more gratifying and rewarding professionally than assembling, then guiding, a successful panel discussion. When you listen, I hope you will share in that same sense of satisfaction.
Joseph Russomanno, Ph.D., Associate Professor, Walter Cronkite School of Journalism and Mass Communication, Faculty Affiliate, Sandra Day O’Connor College of Law, Arizona State University
Note: The Case files from Cohen v. Cowles are part of the Law Library’s Historical & Special Collections Modern Manuscript Collection. The collection is open to all researchers. Anyone interested in using the collection should contact Historical & Special Collections to schedule an appointment.