Lawyers who know how the Supreme Court works say that it is very hard to win a case there if the facts put the client in a bad light, deserving of little or no sympathy. The problem is obvious, of course, when the case involves a client convicted of a gruesome murder. But it can be a problem in other kinds of cases, too; a new appeal illustrates that very well.
Ordinarily, one expects the court to focus heavily, if not exclusively, on the legal issues in a case. As an appeals court, the court has to take the facts as they come from lower courts and has authority to decide only law issues. But a set of "bad" facts about the client can push the issues into second place in the justices' minds.
That is what some lawyers foresee as a major difficulty when the court decides, later this term, a new case that is of momentous importance to America's journalists. Already, lawyers who defend the press are deep in agony over the mere fact that the court was willing to hear that case. They anticipate a major constitutional defeat. Said one of those worried lawyers in private (with some exaggeration for effect): "It's the end of the world!"
It is a very bad time, those lawyers say, for any case on journalists' rights to reach the Supreme Court. A conservative majority now in control is very skeptical of rulings in recent years, by the Supreme Court and lower courts, broadly expanding the protection available under the First Amendment's press freedom clause. Some of those precedents supposedly are shaky indeed; there could not be a worse time for the press to be asking for even greater protection.
In that kind of atmosphere, the justices the other day agreed to review a case involving two Minnesota newspapers, a case that lawyers say is hard to match for the negative image of the press it presents to the court. The newspapers chose, as a matter of editorial discretion, to publish something they had solemnly promised not to publish.
Within the press' own world, in the somewhat quirky process of deciding what is or is not ethical in gathering the news, there are only a few kinds of conduct that are commonly regarded as absolutely forbidden.
One, of course, is lying intentionally. Another, ranking right up there as nearly unforgiveable ethically, is promising to keep secret the identity of a source and then breaking the promise.
There are, supposedly, many news stories that would never get into the paper if the press did not learn about them by making a deal with a source: Give us the news, and we will never tell that you were the source. This is a bargain made for purely pragmatic and opportunistic reasons, on both sides: The press gets a story that it wants but otherwise would not get, the source does not have to take responsibility for leaking the story that serves the source's own agenda.
It is a technique that is often used when the information is about scandal or corruption, in government or elsewhere in society. The press actively encourages "whistle-blowing" about someone else's misdeeds, and it is quite willing to pay the price of leaving the whistle-blowers out of the story altogether.
Within the public, it is fair to assume, there are few who would regard this as honorable business; it may well seem like a pact between a scoundrel and a devil.
But state legislatures and some courts have accepted the press' argument that it must make such deals in order to get sensitive information that should come out. Legislatures have passed "shield laws" to assure the press that it cannot be forced to divulge its sources' identities. A number of courts have created rules that assure the press the same kind of protection.
Over the years, the most significant development has been that courts have read the First Amendment to incorporate this protection for the confidentiality of news sources. The Supreme Court has never said it agreed with that interpretation. But the Minnesota newspapers' case provides it with an opportunity to say that the First Amendment provides no such protection.
The Minnesota case is not the normal hidden-source deal for which the press has won some First Amendment protection. Reporters for the Minneapolis Star and Tribune and the St. Paul Pioneer Press Dispatch promised a political campaign figure anonymity in return for leaked documents about the questionable past of an opposition candidate: a fairly ordinary kind of "dirty trick" in the modern era of negative campaigning.
When the reporters got back to their newsroom, the editors thought the identity of the source of the documents was an important part of the story. Overriding the reporters' promise of confidentiality, the editors chose to publish the source's name. He was Dan Cohen, a publicist temporarily working in the political campaign. On the day the stories came out, exposing Mr. Cohen as the source, he was fired by his advertising agency employer.
That is the fact pattern that the Supreme Court now confronts as it prepares to sort out the constitutional implications of the Minnesota editors' decision. After years of harping on a right to keep its sources secret, and not being forced by the law to divulge them, representatives of the press now stand before the court pleading for the right to break the promise of confidentiality, and not being held accountable in the law for doing so.
What happened in Minnesota became a legal problem, not just an ethical issue, because Mr. Cohen was not willing to let matters rest after the stories about him appeared. He chose to sue, claiming he had a legally binding promise of confidentiality, and the law should enforce that "contract." A jury sympathized with him and awarded him $200,000 in damages. That was overturned last July by the Minnesota Supreme Court; the majority of that court said that verdict violated the First Amendment.
One dissenting justice in the state court, Glenn Kelley, sarcastically noted that the press is regularly searching for protection in order to keep its sources' identity secret, but this time was seeking protection for just the opposite. The Minnesota case, Justice Kelley remarked, "highlights the perfidy" of the press as it seeks "to crawl under the aegis of the First Amendment" for conduct that would have gotten "any other corporate or private citizen of this state" into trouble for an obvious "breach of contract."
Said his dissenting colleague, Justice Lawrence Yetka: "The decision of this court makes this a sad day in the history of a responsible press in America."
The strength of those remarks may well have influenced the Supreme Court to grant review of the Minnesota case -- and may well be a key factor if the justices do, in the end, take away some or all of the constitutional protection that now surrounds the entire practice of relying upon hidden sources.