Laws of General Applicability and Cohen v. Cowles Media:

I continue the posts excerpting my article, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell Law Review 1277 (2005). Right now, I'm discussing the first part of the argument, which responds to the claim that “generally applicable laws” may be applied to speech with little constitutional scrutiny (or at least without strict scrutiny) even when the laws apply to the speech precisely because of the communicative effects of the speech.

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So far, I’ve used the term “generally applicable law” simply to mean a law applicable equally to a wide variety of conduct, whether speech or not. But “generally applicable law” can have several different meanings, depending on context:

  1. a facially speech-neutral law, which is to say a law applicable to a wide variety of conduct, whether speech or not;

  2. a facially religion-neutral law, which is to say a law applicable equally to religious observers and to others; or

  3. a facially press-neutral law, which is to say a law applicable equally to the press and to others.

These three meanings -- facially speech-neutral, facially religion-neutral, and facially press-neutral -- are different, though they sometimes share the label “generally applicable law.” For instance, most libel law principles are press-neutral but not speech-neutral. A tax on all books would be religion-neutral but not press-neutral.

Unfortunately, since all these laws are sometimes called “generally applicable,” the three types may be confused with one another. One major argument against the position I defended in the a previous post flows from this very sort of confusion. That argument (used, among others, by the Fourth Circuit in Rice v. Paladin Enterprises and by the Justice Department in their memo on restricting crime-facilitating speech) cites Cohen v. Cowles Media Co., and the opinions on which that case relies, for the proposition that applying generally applicable laws to speech doesn’t violate the First Amendment.

In Cowles Media, the Court held that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news,” and cited several other cases that so held. But this only means that the press gets no special exemption from press-neutral laws. The Court didn’t consider whether speakers were entitled to protection from speech-neutral laws, especially when those laws are content-based as applied. Cowles Media involved a promissory estoppel lawsuit by a source against a newspaper publisher. Cowles breached its promise not to reveal Cohen’s name; Cohen sued and won on a promissory estoppel theory, and the Court held that the damages award didn’t violate the First Amendment. In the process, the Court reasoned that the case was controlled by the

well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. Similarly, the media must obey the National Labor Relations Act and the Fair Labor Standards Act; may not restrain trade in violation of the antitrust laws; and must pay nondiscriminatory taxes. It is therefore beyond dispute that “[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.” Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.

There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment does not forbid its application to the press.

The Court repeatedly stressed that it was discussing only whether the press gets special exemption from laws that are equally applicable to the press and to others; this quote mentions “the press,” “newspapers,” or “the media” nine times. Each of the examples the Court gave discussed what “the press,” “the media,” “newspaper[s],” and “newspaper reporter[s]” have no special right to do. This makes sense, because the Court was overruling the Minnesota Supreme Court’s conclusion that the First Amendment requires courts to “balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.”

Moreover, two of the Court’s examples are consistent only with the interpretation that the Court used “generally applicable” to mean press-neutral rather than speech-neutral. First, copyright law (which the Court also mentions as an example later in the opinion) is press-neutral but not speech-neutral. In 1977, when Zacchini v. Scripps-Howard Broadcasting Co. -- the case that the Cowles Media Court cited when referring to copyright law -- was decided, copyright law applied exclusively to communication, as it had through most of its history. Even today it applies mostly to communication, though over the past few decades it has been extended to cover architectural works and computer program object code.

Second, as Part II.B pointed out, the First Amendment sometimes provides a defense against antitrust law, when the alleged restraint of trade comes from defendant’s speech advocating legislation. Citizen Publishing Co. v. United States and Associated Press v. United States, the two antitrust cases that the Court cited, hold that newspapers cannot raise their status as members of the press as a defense to antitrust law. But Noerr and Pennington make clear that speakers can raise as a defense the fact that the law is being applied to them because of their speech.

So the Cowles Media Court’s “general applicability” reasoning means simply that Minnesota promissory estoppel law is press-neutral, and thus shouldn’t have been subject to any heightened scrutiny simply because it was applied to the press. (Compare Turner Broadcasting Sys., Inc. v. FCC, “[W]hile the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment ... laws that single out the press ... for special treatment ‘pose a particular danger of abuse by the State,’ ... and so are always subject to at least some degree of heightened First Amendment scrutiny.”)

That, of course, leaves unresolved the argument that the law couldn’t be applied because it restricted speech; after all, it was Cowles Media’s speech that constituted the potentially actionable breaking of a promise.

But later in the opinion, the Court explains why promissory estoppel law is indeed constitutionally applicable to all speakers, whether press or not: “Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed.” So the Court rejected the free speech argument based on the principle that free speech rights, like most other rights, are waivable, rather than on an assertion that speech-neutral laws are per se constitutional.