Shapiro, Jason

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 22Number 2 Fall, 1991 Article 71991Recent Developments: Cohen v. Cowles MediaCo.: First Amendment Does Not Prohibit anInformant from Recovering Damages under State'sPromissory Estoppel Law for Newspaper's Breachof Promise of ConfidentialityJason ShapiroFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationShapiro, Jason (1991) "Recent Developments: Cohen v. Cowles Media Co.: First Amendment Does Not Prohibit an Informant fromRecovering Damages under State's Promissory Estoppel Law for Newspaper's Breach of Promise of Confidentiality," University ofBaltimore Law Forum: Vol. 22 : No. 2 , Article 7.Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss2/7sure. Id. at 472. Chief Judge Murphy wrote the opinion for the court of appeals. In deciding the first issue, the court first gathered a working background in the plain meaning of the term "bodily injury" as written in the policy de-scription. It acknowledged that with-out a finding of" bodily injury," cov-erage would not be triggered. The court found that" [w]hile the defini-tion of bodily injury includes sickness and disease . . . the definition also specifically includes injury to the body .... " Mitchell, 595 A.2d at 475-76 (quoting Insurance Co. of N. Am. v. Forty-Eight Insulations, 451 F .Supp. 1230, 1242 (E.D. Mich. 1978), aff'd, 633 F.2d 1212 (6th Cir. 1980) (em-phasis in original». The court also found authority that most jurisdictions have defined "bodily injury" to in-clude any " localized abnormal condi-tion." Mitchell, 595 A.2d at 476. The court also looked to Black's Law Dic-tionary 159 (5th ed. 1979), which stated that "bodily injury . . . [g]enerally refers only to injury to the body, or to ... diseases contracted by the injured as a result of injury." Id. These findings illustrated that because a distinction existed between the oc-currence of " bodily injury" and the resulting manifestation of sickness or disease, the terminology" sickness or disease" did not determine when an injury took place, but only that some injury did exist. Id. The question of "when" was an issue for medical experts. Consequently, the court of ap-peals next looked to the affidavits of the medical experts, Craighead and Epstein. Id. The court noted that they were in general agreement as to their findings, except as to the initial inci-dence of "bodily injury." Id. The court took an interest in the particular field of each expert, just as the Su-preme Court of Illinois did in Zurich Ins. Co. v. Raymark Indus., 514 N.E.2d 150 (Ill. 1987). The court recognized that the is-sue presented in Zurich was identical 20 - The Law Forum/22.2 to the one presented before the court in Mitchell. Mitchell, 595 A.2d at 476. Nine physicians testified extensively, and there was disagreement between the pathologists and the clinicians as to when an injury occurred in asbestos cases. The clinicians conceded that damage might occur upon inhalation, but they also noted that the lung is capable of repairing itself so that not every inhalation precipitates disease. Id. at 477 (citing Zurich, 514 N.E.2d at 156). Without symptoms, they argued, it would be impossible to determine with accuracy exactly when a disease began. Therefore, it should follow that a disease would have to be diagnosed by its symptoms before it could constitute a " bodily injury." Id. This argument, however, did not sway the Illinois court which concluded that once asbestos fibers are inhaled, bodily injury occurs, and nothing within the insurance policy requires diagnosis nor does it require identification of that injury within the policy period. Simply stated, only the injury must take place within the policy coverage, not the subsequently-manifested dis-ease. Id. Extending this analysis, the Mary-land Court of Appeals noted that mere exposure to asbestos without injury does not trigger coverage. Id. at 478. However, upon the diagnosis of a disease, the courts will look back to the time of initial exposure to deter-mine when the bodily injury occurred. Id. In this writer's opinion, an inter-esting situation would have arisen if a person had been diagnosed under the insured's valid policy. When looking retroactively to the point of bodily injury, however, the initial inhalation of asbestos predated the policy cover-age. It is unclear whether coverage would be allowed even if the insured product clearly aggravated an other-wise pre-existing asbestos-related mild lung condition. Technically, no in-jury actually" occurred" as defined by the Maryland Casualty policy. Also, if the process to develop lung disease from asbestos is not immediate, it would appear to be very difficult, if not impossible, to decipher which inhalation precipitated the disease, i.e., was it the asbestos in his own home, a neighbors home, at work, etc. It would seem that unless actual initial causa-tion could be shown, coverage would not be triggered. The significance of Mitchell v. Maryland Casualty Co. rests with its possible application to other disease related cases where exposure to a condition is relevant, such as AIDS or Hepatitis B in hospitals and other facilities dealing with blood. For now, Maryland's stance on asbestos-related insurance coverage is to be determined from the moment of initial exposure, so long as a disease mani-fests itself as a result. This is a policy which protects both consumers and installers from unknown dangers which we may not yet have the technology to detect. It places the burden tempo-rarily upon insurance companies who can best afford the risk of using new materials and devices, and in turn, through their own influence, can pres-sure the manufacturers to work harder to safeguard the public. - Kenneth Goldsmith Cohen v. Cowles Media Co.: FIRST AMENDMENT DOES NOT PROIDBIT AN INFOR-MANT FROM RECOVERING DAMAGES UNDER STATE'S PROMISSORY ESTOPPEL LAW FOR NEWSPAPER'S BREACH OF PROMISE OF CONFIDENTI-ALITY. In Cohen v. Cowles Media Co., 111 S. Ct. 2513 (1991), the United States Supreme Court held that the First Amendment does not prohibit an informant from recovering damages under a state's generally applicable promissory estoppel law for a newspaper's breach of a promise of confidentiality given in exchange for information. The Court based its decision on the theory that laws of general applicability are not offensive to the First Amendment merely be-cause their enforcement has incidental effects on a newspaper's ability to gather and report the news. In so ruling, the Court distinguished the facts of this case from those in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), where the court held that there could be no cause of action against a newspaper for publishing lawfully obtained and truthful infor-mation about a matter of public sig-nificance, absent state interest of the highest order. In 1982, Dan Cohen ("Cohen") approached reporters from two news-papers owned by respondent, Cowles Media Company. Cohen, a Republi-can campaign worker in Minnesota, offered the reporters disparaging in-formation concerning the Democratic candidate for Lieutenant Governor in return for a promise of confidential-ity. The reporters took the informa-tion and agreed to keep Cohen's iden-tity a secret. The two newspapers subsequently decided to include Cohen's name in their stories and to identify him as the source of their information. Cohen was fired the same day the stories appeared. Cohen filed suit against the news-papers in Minnesota state court, alleg-ing fraudulent misrepresentation and breach of contract. Respondents ar-gued that the First Amendment barred recovery. A jury returned a verdict in Cohen's favor and awarded him both compensatory and punitive damages. The Minnesota Court of Appeals up-held the trial court's award of com-pensatory damages, but reversed the award of punitive damages on the basis that Cohen had not established a cause of action for fraudulent misrep-resentation. The Minnesota Supreme Court reversed the compensatory dam-age award, but went on to consider whether Cohen could recover under promissory estoppel, a theory which had not been advanced by either party at trial or on appeal. The court concluded that enforcement of the promise of confidentiality under a covery under a state's promissory es-promissory estoppel theory would vio- toppel doctrine in cases where a prom-late defendants' First Amendment iseof confidentiality had been broken. rights. The United States Supreme Respondents argued that under Smith Court granted certiorari in order to v. Daily Mail Publishing Co., 443 consider the First Amendment impli- U.S. 97, 103 (1979), state officials cations of the case. could not punish a news organization The Supreme Court began its analy- for publication of lawfully obtained, sis by rejecting respondents' argu- truthful information of public signifi-ments for dismissal based on a lack of cance, absent a need to further a state subject matter jurisdiction. The Court interest of the highest order. Cohen, concluded that, although the promis- 111 S. Ct. at 2518. The majority of sory estoppel theory had not been the Court agreed that while this propo-presented by the parties in the courts sition was "unexceptionable," Smith below, the Minnesota Supreme Court was distinguishable from the case at had created a federal question by con- bar as it dealt with state-imposed limi-sidering and deciding its applicability tations on what could be published, in relation to federal law . Cohen, 111 not self-imposed limitations arising S. Ct. at 2517 (citing Orr v. Orr, 440 out of an agreement. Cohen, 111 S. U.S. 268, 274-75 (1979». In addi- Ct. at 2518-19. In addition, the Court tion, the Court noted that respondents questioned the "lawfulness" of ob-had themselves relied upon the protec- taining information by means of prom-tions of the First Amendment as a ises which are later broken. [d. at defense in the lower courts. Cohen, 2519. 111 S. Ct. at 2517. The Court cited several cases which The Court then turned to the ques- held that generally applicable laws do tion of whether First Amendment pro- not offend the First Amendment sim-tections could be triggered by a pri- ply because their enforcement against vate cause of action for promissory the press has incidental effects on its estoppel. Recognizing that in order to ability to gather and report the news. do so, a private cause of action must [d. at 2518. The Court expressed constitute "state action" within the "little doubt" that Minnesota's doc-meaning of the Fourteenth Amend- trine of promissory estoppel was a law ment, the Court looked to such cases of general applicability, and that en-as New York TImes Co. v. Sullivan, forcement of such a law against the 376 U.S. 254 (1964). The Court press should not have been subject to concl uded that" the application of state stricter scrutiny than if it were en-rules oflaw in state courts in a manner forced against other persons or orga-alleged to restrict First Amendment nizations within the state. [d. at 2518-freedoms constitutes 'state action' 19. Accordingly, the judgment of the under the Fourteenth Amendment." Minnesota Supreme Court was re-Cohen, 111 S. Ct. at 2517. Address- versed,andthecasewasremandedfor ing promissory estoppel in particular, further proceedings on the issue of the Court reasoned that because the whether Cohen had established a prom-state law doctrine of promissory es- issory estoppel claim under Minne-toppel created obligations never ex- sota law. plicitly assumed by the parties, it was In one oftwo dissenting opinions, necessary for the courts of that state to Justice Blackmun, who was joined by enforce such obligations, which con- Justices Marshall and Souter, argued stituted "state action" for purposes of that the majority was misguided in the Fourteenth Amendment. [d. at their reliance upon cases such as As-2518. sociatedPressv. NLRB, 301 U.S. 103 The Court next considered whether (1937), and Branzburg v. Hayes, 408 the First Amendment precluded re- U.S. 665 (1972), because these cases 22.2/fhe Law Forum - 21 did not involve the imposition of li-ability based upon the content of speech. Cohen, 111 S. Ct. at 2520-21. Drawing instead upon Hustler Maga-zine v. Falwell, 485 U.S. 46 (1988), Justice Blackmun argued that in those cases where imposition of liability was based upon the content of speech, the state's interest in protecting its citizens had been found insufficient to remove such expressions from First Amendment protection. Cohen, 111 S. Ct. at 2521. The Minnesota Su-preme Court decision made it clear, he concluded, that the state's interest in enforcing its promissory estoppel doc-trine was far from compelling. Id. at 2522. Justice Souter, in a dissent joined by Justices Marshall, Blackmun, and O'Connor, argued that the case did not fall within the lineof cases cited by the majority which held the press to laws of general applicability. Id. He instead suggested compliance with the Court's methodology in earlier cases such as Hustler Magazine v. Falwell, 485 U.S. 46 (1988), where it was found necessary to " articulate, mea-sure, and compare the competing in-terests involved in any given case to determine the legitimacy of burdening constitutional interests .... " Cohen, 111 S. Ct. at 2522. According to Justice Souter, the public interest in being better informed and thus more prudently self-governed was para-mount to the state's interest in enforc-ing a newspaper's promise of confi-dentiality. He admitted, however, that were Cohen's identity of less public concern, liability might not be constitutionally prohibited. Id. at 2523. The Supreme Court's holding in Cohen will undoubtedly affect how reporters deal with their informants. Newspapers now have legal incen-tives to not disclose the identity of a confidential source, even when that person's identity is itself newsworthy. More importantly, this decision dem-onstrates the Court's reluctance to expand the boundaries of the news 22 - The Law Foruml22.2 media's First Amendment privileges. - Jason Shapiro Baltimore Sun Co. v. Colbert: COURTROOM CWSURE PRESUMPTIVELY VIOLATIVE OF FIRST AND FOURTEENTH AMENDMENTS ABSENT SPE-CIFIC FINDINGS SHOWING PREJUDICE TOWARDS DEFENDANT. In Baltimore Sun Co. v. Colbert, 593 A.2d 224 (Md. 1991), the Court of Appeals of Maryland held that the public and media cannot be excluded from a preliminary criminal hearing without first being provided with an opportunity to argue against such clo-sure. The court further held that all findings of fact supporting the court-room closure and the sealing of the transcript must be made on the record. Tyrone Michael Colbert was in-dicted for first degree murder and other related criminal charges. The State notified the defendant of its intention to seek the death penalty or alternatively, life without parole. Prior to trial, Colbert filed a motion to enforce a prior plea bargain agree-ment with the State. At the hearing on the motion, Colbert requested that the hearing be closed to the public. The State ob-jected to the closure because of the public's right to know about the sub-ject matter. Nevertheless, the trial court held that the defendant's rights to a fair trial outweighed the public's right to be present at the hearing. A reporter for the Baltimore Sun Com-pany ("Sun") also objected to the closure. The Sun reporter argued the paper had a constitutional and com-mon law right to attend the hearings. The court stated that it would re-open the hearing when counsel for the Sun arrived. The court then ordered ex-clusion of everyone from the hearing, except for the parties and counsel. Counsel for the Sun was unable to gain immediate access to the hearing, but when counsel was allowed into the courtroom, the judge refused to re-open the hearing. Counsel for the Sun then requested that the nature of the hearing be disclosed and the records of the proceedings be provided. When counsel's requests were denied, the Sun appealed the ruling, arguing that it had a constitutional and common law right to attend pretrial hearings and to examine pleadings. Id. at 227. The Court of Appeals of Maryland granted certiorari prior to consider-ation by the court of special appeals to determine two questions. . The court first addressed the issue of whether prior notice of a courtroom closure during a pretrial proceed ing in a criminal case is required and whether an opportunity to oppose such closure is required. Second, the court deter-mined whether the lower court vio-lated the First and Fourteenth Amend-ments to the United States Constitu-tion and Article 40 of the Maryland Declaration of Rights in its hearing and sealing of the closure motion. Id. at 226. The court began its analysis by stating that there is a general presump-tion of openness in criminal trial pro-ceedings as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Id. at 227 (citing Richmond Newspapers Inc. v. Virginia, 448 U.S. 555,573 (1980)). In concluding that the trial court erred in the present case, the court of ap-peals relied on a two-prong test devel-oped in Press-Enterprise Co. v. Supe-riorCourt, 478U.S.1 (1986). Colbert, 593 A.2d at 228. The court stated the test as first, "whether the place and process have historically been open to the press and general public[,J" and second, " whether public access plays a significant positive role in the func-tioning of the particular process in question." Id. (quoting Press Enter-prise, 478 U.S. at 8). Applying Press Enterprise, the court recognized that if the two-prong test is satisfied, there is a qualified right of access to a judicial pretrial proceeding, based on the First and Fourteenth Amendments 

Recent Developments: Cohen v. Cowles Media Co.: First Amendment Does Not Prohibit an Informant from Recovering Damages under State\u27s Promissory Estoppel Law for Newspaper\u27s Breach of Promise of Confidentiality

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Recent Developments: Cohen v. Cowles Media Co.: First Amendment Does Not Prohibit an Informant from Recovering Damages under State\u27s Promissory Estoppel Law for Newspaper\u27s Breach of Promise of Confidentiality

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