42 Pages Posted: 21 Apr 2010
Date Written: 2001
For a short, sloppily reasoned 5-4 decision that textbook editors have largely consigned to note status, Cohen v. Cowles Media Co. has had a remarkably insidious influence on First Amendment law. The problem is not so much the decision’s holding. The Supreme Court’s conclusion that newspapers could be liable for breaching a promise of anonymity to a source might actually further speech interests.
The problem instead is in Cohen’s reasoning. It is the way in which the Supreme Court so cavalierly dismissed the argument that the First Amendment precluded punishing media defendants for the publication of truthful information. The Court did not reach this conclusion after a careful balancing of interests. Rather, it brushed aside the defendants’ arguments as if there were no free speech issues to consider, leaving the impression that holding the press liable for disclosing truthful information need hardly make a First Amendment ripple.
This brusque treatment of the defendants’ First Amendment arguments has become Cohen’s legacy. Cohen, in effect, has become a First Amendment neutralizer. It is the case parties use in a variety of contexts to convince a court that it need not bother with a searching First Amendment analysis. It is the case courts cite when laying the groundwork for dismissing a party’s First Amendment defenses.
This Article attempts to show where Cohen went wrong and how courts, particularly the Supreme Court, can put an end to Cohen’s mischief. The Article’s primary thesis is that Cohen created the jurisprudential foundation for the argument that parties can use property and contract rights to cordon off information from public purview without First Amendment scrutiny. The Article argues that our “information age” society can ill afford to have the First Amendment become a neutral bystander to this privatization of information. To the extent that Cohen suggests otherwise, the Article contends that Cohen is wrong.
Keywords: first amendment, constitutional law, free speech
JEL Classification: K1, K10
Suggested Citation: Suggested Citation
Garfield, Alan E., The Mischief of Cohen v. Cowles Media Co. (2001). Georgia Law Review, Vol. 35, No. 4, Summer 2001. Available at SSRN: https://ssrn.com/abstract=1593345