Historical & Special Collections •

The 25th anniversary of Cohen v. Cowles Media Company : Guest post by Joseph Russomanno, Associate Professor, Walter Cronkite School of Journalism and Mass Communication, Arizona State University

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.

Elliot Rothenberg’s oral argument from March 27, 1991 can be heard on OYEZ, hosted by the Chicago-Kent College of Law.

852 RARE: New Exhibit: Deep Cuts: The B-Side of Historical & Special Collections –Object Spotlight- Cardozo Sculptograph

Historical & Special Collections is pleased to announce the opening of its newest exhibit, Deep Cuts: The B-Side of Historical & Special Collections. The exhibit steps away from the collection’s “A-side,” the popular items people expect to find and instead focuses on lesser known parts of the collection that include some bizarre finds and hidden gems.

b-side-of-hsc-poster_final_web

One of those hidden gems is a unique photograph of Justice Benjamin N. Cardozo (1870-1938). Cardozo began his career in private practice after graduating from Columbia Law School in 1890. In 1914 he was elected to the New York Supreme Court where he served as an associate justice until 1917. He was then appointed to the New York State Court of Appeals where he served from 1917 to 1932, serving as chief judge from 1926-1932. President Hoover appointed Cardozo to the United States Supreme Court on February 15, 1932, to a seat vacated by Oliver Wendell Holmes, Jr. He was confirmed by the Senate on February 24, 1932, and received commission on March 2, 1932. He served as associate justice until his death in 1938.

3-D Black and white photograph of Justice Benjamin Cardozo

Benjamin Cardozo, 1936-1938

Underwood & Underwood, photographer

Gelatin silver print sculptograph, 26 x 21 x 2.5 cm, HOLLIS 8001213107

In 1997, Professor Andrew L. Kaufman gave Historical & Special Collections material he collected and created during the research for his book, Cardozo (1998). Included in the gift was a small collection of photographs he had amassed over the years—including this very unique item. Having never seen anything like it before, we brought the print to the attention of photograph conservators at the Weissman Preservation Center of Harvard Library. It was a mystery to them as well! After researching the process they were able to determine that the photographic object is a sculptograph. Creating a sculptograph is a complex process that involves adhering a photographic image onto a secondary support, usually made of metal, essentially turning a two-dimensional photograph into a three-dimensional bas-relief.  Although various techniques for creating photographs with bas-relief surfaces were patented during the late nineteenth and early twentieth centuries, sculptographs are rare and few historical publications or technical analyses regarding the process exist. This example is especially notable because instead of a metal support it has a molded, plaster relief.

The photograph was loaned in 2002 to the American Sephardi Federation in New York for a Cardozo exhibit. As far as we know, this is the first time in 14 years it is being displayed, and possibly the first time at Harvard.

We are thankful to our colleagues at the Weissman Preservation Center of Harvard Library who took the still images they captured using RTI imaging (Reflectance Transformation Imaging) to create a movie that offers a three-dimensional viewing experience.

The exhibit was curated by HSC staff: Karen Beck, Jessica Farrell, Jane Kelly, Edwin Moloy, Mary Person, and Lesley Schoenfeld. It will be on view in the Caspersen Room, Harvard Law School Library 4th floor, daily 9am-5pm through March 2017.

For those unable to make it to the physical exhibit, we invite you to a view a selection of exhibit images online at bit.ly/HSCexhibit. We have also included the recently reformatted recordings of a rare 1957 vinyl record, James Garrett Wallace Sings of the Law and Lawyers, side 1 & side 2 and a 1979 U-matic videocassette titled Langdell Legends featuring numerous HLS professors, because it wouldn’t be fair to display them without letting people fully enjoy these B-side gems!

HLS students, come explore our Historical & Special Collections!

HLS students, did you know that the Library holds one of the world’s most comprehensive collections of rare law books, early legal manuscripts, and archival collections of legal papers?

There is still space available in our short Introduction to Historical & Special Collections session. Learn about what we collect, get a first-hand look at examples from our collection, and find out how to do research in HSC.
Thursday, October 13, 2016, 3:30-4pm in the Root Room (south end of the Reading Room)
Registration is appreciated, but not required.

852 RARE: Of Elks, Magicians, and Stone Cutters

Alexis de Tocqueville famously wrote that “Americans of all ages, all stations of life and all types of disposition are forever forming associations …” and a little known but intriguing collection here in Historical & Special Collections demonstrates just that.  It consists of constitutions and by-laws of a wide variety of American organizations, dating from the early nineteenth century to the mid-twentieth century.  The majority were part of a gift from the private collection of Roger Stoddard, former Curator of Rare Books at Houghton Library. From The Constitution of the Massachusetts Society for Promoting Christian Knowledge (printed in Charlestown, Massachusetts in 1803) to the New programme and new constitution of the Revolutionary Communist Party, USA (Drafts for discussion) (Chicago, 1980) these pamphlets encompass nearly 200 years of American social, religious, trade, and political history.

fanned-ii

They include organizations as diverse as the Charlestown Association for the Reformation of Morals (of Charlestown, Mass.) whose object as stated in its 1813 pamphlet was to “discountenance and suppress vice and wickedness generally, and to promote Christian virtue and morality … especially in the youth,” to the 1886 Constitution and by-laws of the Burlington Coasting Club of Burlington, VT,  whose object was “the encouragement and promotion of out door winter sports, such as Coasting, Toboggan Sliding, Snow-Shoeing, Ice Skating and Curling.”  Many of the pamphlets— such as By-laws of the Joint Association of Stone Cutters and Quarry Men (1888), and Constitution & by-laws of the Lynn & Boston R.R. Mutual Aid Association (1886)—were for associations that were precursors of modern workplace unions.

 ;

;

This is a somewhat hidden collection as catalog records for these rare and ephemeral pamphlets are often preliminary and brief, but the collection is open for research and we encourage you to explore it. These seemingly dry organizational documents actually provide fascinating snapshots of different times and places in American history. You can search this collection by doing a “Other call number “ search in HOLLIS Classic using the term “Constitutions and By-laws”.

fanned-iii

852 RARE: Games People Play*

Believe it or not, Historical & Special Collections is home to some law-related games, including playing cards and materials created to help students learn the law. This set of educational cards, published in Halle, Germany in 1709, was intended to teach students civil law.

Civil Law Playing Cards

Chartae Iusoriae Juridicae (Halle, 1709), HOLLIS 3706209.

Our set consists of 34 cards, numbered 2 through 35. Each card contains several principles of civil law, written in Latin. The principles are numbered 5 through 194. It’s too bad the first card is missing from our set! Each card has been backed with marbled paper, and the whole set fits into a papier mâché box, also covered with marbled paper.

Case and Playing Cards

Case and Playing Cards, HOLLIS 3706209.

There is an eight-page instruction booklet, written in German, bound into marbled paper wrappers that match the playing cards. Students could use the cards as simple flash cards for self-study, or gather with a group of fellow students for a scintillating round of play. Here are a few excerpts from the instructions, translated by Jennifer Allison, an HLSL Foreign, Comparative, and International Law Librarian:

  1. Those who would like to familiarize themselves with these laws and repeat them at will / must start by learning the first law on a card / tam quoad numerum, quam quoad sensum, and discuss it with their fellow players / who do the same thing.
  2. Once this has happened / they both, or also four, five, and six [people] could … / sit together / shuffle the cards / and deal them out to each player.
  3. At this point, the person who received the first card starts / by asking his neighbor a question about one of the cards in his hand e.g. ex fol 8. An possessor rerum immobilium satisdare teneatur? If this person answers / quod sic; he has answered incorrectly and must take the card / and must read … out loud from it / so that the other players, ex auditu, can be informed of the law. …
Instruction Booklet

Instruction Booklet, HOLLIS 3706209.

Let’s hope they were drinking lots of beer. Nevertheless, it’s a good reminder that legal study aids – and the market for them – have been around for a long time. Good luck in your law school studies, whichever study method you choose!

*with apologies to Eric Berne

Get Your Fashion Fix!

The HLS Library’s exhibit, What (Not) to Wear: Fashion and the Law closes at 5 pm on Friday, August 12. Come learn about poisonous clothing, proper law attire, and fashionable litigation! The exhibit is on view weekdays from 9 to 5 in the Caspersen Room, fourth floor of Langdell Hall. See you there!

852 Rare: Finding Some Cheer in a Sad Book

Every once in a while we find a book in Historical & Special Collections that would make even the most cold-hearted among us feel sorry for the poor thing. Pictured below is a scrapbook of newspaper clippings assembled by Eugene Wambaugh, an HLS faculty member who taught at the school in the early-twentieth century.

EugeneWambaughScrapbook_HOLLIS4180741

Eugene Wambaugh’s “Scrapbook of newspaper clippings relating to federal and local economic and political problems, 1884-1887.” HOLLIS 4180741

The front board (cover) is completely detached, along with several of the first pages, newspaper clippings jut out at both the top and bottom of the volume, and large stacks of clippings between pages have put a great deal of pressure on the spine. The newspaper clippings are also what we might call “chippy,” meaning that small pieces of paper are liable to flake off from the edges. [Read More]

852 RARE Bonus Edition: The 25th Anniversary of Cohen v. Cowles Media

June 24, 2016 marks the 25th anniversary of Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which the U.S. Supreme Court decided that freedom of the press does not exempt journalists from following generally applicable laws. Dan Cohen (HLS ’61), a Republican campaign associate in the 1982 Minnesota governor’s race, gave information about another party’s candidate to reporters at two local newspapers. Though Cohen had received a promise of confidentiality from the reporters, the papers divulged his name. Cohen lost his job and sued the papers in state court, alleging breach of contract. Cohen won at trial and on appeal, but the Minnesota Supreme Court reversed. Cohen appealed to the U.S. Supreme Court. The question before the Court was: Does the First Amendment bar a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality? In a close 5-4 decision with two dissents, the Court ruled in favor of Mr. Cohen.

Cohen v. Cowles Media has been the subject of much debate and legal analysis in the past 25 years. It stands with New York Times v. Sullivan and a handful of others as a significant first amendment case involving the press.

Interested in learning more about what went on behind the scenes of this important case? Historical & Special Collections has the case files! Donated by Cohen’s attorney Elliot C. Rothenberg (HLS ’64), the collection consists of materials Mr. Rothenberg compiled and used in Cohen’s defense. HSC has many collections of case files, lawyers’ papers, and judges’ papers. If you are interested in a particular legal case, lawyer, or judge, search HOLLIS+ , the Harvard Library catalog.

HLS Class Marshal Elliot C. Rothenberg ('64). VIA record ID 8000950463

HLS Class Marshal Elliot C. Rothenberg (’64). VIA record ID 8000950463

We’re grateful to Mr. Rothenberg for sharing his collection with us, so we can share it with you. And his generosity does not end there: over the years, he has donated a number of HLS-related papers and artifacts to HSC, including the very baton he wielded as the Law School’s 1964 Class Marshal! Both baton and photo are on view through August 12, 2016 in the “academic regalia” section of the Library’s exhibit, What (Not) to Wear: Fashion and the Law.

852 RARE: Preserving Digital Media at HLS: First Steps

Whether you’re familiar with archives or not, unless you work in one all day you might think of them as mysterious locked rooms full of old (dare I say, “dusty”) books with intricate bindings, manuscripts crafted hundreds of years ago in no-longer-spoken tongues and script, and artifacts once owned by famous people. HLS Library’s Historical and Special Collections does contain “treasures” like these but a much larger portion of our collection is made up of manuscripts that tell the stories of the lives of legal scholars, lawyers, and judges, regardless of fame or fortune. These items make long physical journeys from someone’s home or office through archivists’ hands, workspaces, and many other processes before finally being ready for access by our researchers.

But digital media has turned traditional archiving on its head. With formats and technology evolving much faster than the technology of papermaking and bookbinding, how do we preserve today’s records? Over the past 5 years, we have been building a program that will support the imminent inundation of digital records and allow us to be more nimble through new practices such as on-demand collecting. We already house an array of historic digital media, such as floppy disks, computers and laptops containing twenty or thirty-year-old hard drives, zip disks, files on CDs, and much more.

Image collage of media from a recent acquisition.

A few pieces of media from a recent acquisition. Clockwise, starting top left: HP Omnibook, 1997; La Cie external hard drive, 1994; HP OmniBook’s internal hard drive, 1997; Apple internal hard drive and its laptop computer, ca. 1994; IBM ThinkPad and its internal hard drive, 2004.

To preserve these, we use digital forensics techniques (yes, similar to what law enforcement units do in a criminal investigation!) to safely transfer files off of obsolete media and stabilize them on a secure server space managed by HLS ITS. We have an array of equipment to read the media, such as 3.5” floppy controllers and an UltraDock writeblocker that connects to over 10 different types of media such as internal hard drives and SD memory cards. We have a computer equipped with the Linux-based open-source BitCurator environment to extract metadata and perform many other activities on the disks we’ve stabilized. We recently added a Forensic Recovery of Evidence Device Laptop (FRED-L) to our arsenal in anticipation of going out into the field and imaging media straight from donors’ offices or homes, without having to bring obsolete media into the archives at all (yes, I’m sorry to tell you, but that floppy disk is going to be unreadable someday whether you’ve got a working drive for it or not!).

FRED-L and UltraKit

FRED-L and UltraKit

But, all of this actually only solves the FIRST step of archiving – transferring files to the archive. A bit more complicated than going to an office to pick up boxes, but also pretty fun. We are currently working on the rest of the workflow – extracting files from stabilized disk images, migrating them to readable formats (WordPerfect for DOS, anyone?), and making them available through our finding aids in OASIS. I’ll be sharing more about these processes and milestones as we reach them, so come back to Et Seq for more digital preservation 852 Rare posts!

New exhibit: What (Not) to Wear: Fashion and the Law

fashion triptych displays 2-hlslHistorical & Special Collections is pleased to announce that the new exhibit, What (Not) to Wear: Fashion and the Law is now on view in the Caspersen Room on the fourth floor of Langdell Hall.

Though law and fashion may not initially seem like overlapping domains, given the central nature of each of these fields to our lives, it is no surprise that they do have an impact on one another. Over the centuries, fashion has been important to decisions about how jurists visually demonstrate their expertise, and law has served to circumscribe how fashion is created, distributed, and consumed.

What Not to Wear: Fashion and the Law, guest curated by research library staff Mindy Kent, Meg Kribble, and Carli Spina (now of Boston College!), is on view in the HLS Library Caspersen Room daily 9am-5pm through August 12, 2016.

Can’t get to Cambridge? Our online exhibit is now available as well!