Breaking The Code of Confidentiality

By Laurence Zuckerman

Dan Cohen had spent enough time around reporters to know that few deals are considered more inviolable than the one between a journalist and a confidential source. So six days before Minnesota's 1982 gubernatorial election, Cohen, a Republican Party activist and public relations director of one of the city's most prominent advertising agencies, alerted four local political reporters to a juicy story: Marlene Johnson, the Democratic candidate for Lieutenant Governor, had been convicted of shoplifting $6 worth of sewing supplies from Sears twelve years earlier. The reporters were free to use the information, Cohen said, so long as they did not identify him as the source. All four agreed.

But when Bill Salisbury of the St. Paul Pioneer Press & Dispatch and Lori Sturdevant of the Minneapolis Star Tribune returned to their newsrooms, their editors overruled the promises of confidentiality. Cohen's close ties to Republican Candidate Wheelock Whitney, the editors argued, made his identity a matter of importance to readers. Both papers reported the incident, naming Cohen as the source of the leak. MARLENE JOHNSON ARRESTS DISCLOSED BY WHITNEY ALLY, declared the front-page headline in the Star Tribune. Columnist Jim Klobuchar, a friend of Democratic Gubernatorial Candidate Rudy Perpich, then decried Cohen as a "sleazy" player. Cartoonist Steve Sack drew Cohen trick- or-treating at Perpich headquarters dressed as a trash can labeled "Last minute campaign smears."

Perpich and Johnson won the election, but Cohen was so tainted by scandal that he lost his job. Outraged, he sued the newspapers for breach of contract and misrepresentation. Last week a Minneapolis jury ruled in his favor, awarding him a total of $700,000 in damages.

The newspapers will probably appeal the verdict, citing the First Amendment. But even if overturned, the verdict will heat up a simmering debate over whether a reporter's promise of anonymity is absolute. "My responsibility is to readers," argues David Hall, editor then of the Pioneer Press & Dispatch and now of the Bergen (N.J.) Record, in defense of his decision. But critics point out that Hall could have kept the bargain with Cohen by simply attributing the information to a "Whitney supporter." "This is a very simple case," says Hennepin County Chief Public Defender William Kennedy, a Democrat. "A promise is a promise."

Both papers claim that editors, not reporters, are the only ones who can promise anonymity. While a little-known Pioneer Press & Dispatch policy stipulated this in 1982, the Star Tribune had no set rule; the paper has since issued a "clarification," giving editors final authority. But, Sturdevant testified, "I did not understand that I needed prior permission to make the promise."

Many reporters and editors at the papers had seen the Cohen case as an aberration. But even before the verdict was read, the Star Tribune faced the threat of a new breach-of-contract suit. Free-Lance Writer Martha Thomas sold an article to the paper's Sunday magazine telling the inside story of a rape trial. Thomas interviewed the defense lawyer on condition that her name not appear. But Star Tribune editors insisted that, because the trial was open to the public, it was fair to name names. Late last week the newspaper pulled all 625,000 copies of its Sunday magazine rather than risk litigation. Considering Cohen's victory, that seemed a prudent move.

With reporting by Clare Mead Rosen/Minneapolis