The Trouble with Confidential Sources: A Criticism of the Supreme Court's Interest-Group View of the First Amendment in Cohen v. Cowles Media Co.

For the last several decades, confidential sources have been a controversial media law issue. During the 1970s, the press argued that the press clause of the First Amendment conferred the freedom to maintain the confidentiality of its sources. According to this argument, only such a freedom would insure that the press could adequately perform its newsgathering role. In the recent case of Cohen v. Cowles Media Co., however, the press found itself somewhat on the other side of the argument.

It unsuccessfully argued to the Court that the First Amendment precluded any liability for breaking a promise of confidentiality to a source and that under the First Amendment the press should be free to deal with its sources as it sees fit. The Supreme Court rejected this argument, just as it did the press arguments for a freedom of confidentiality in the 1970s. This article examines the decision in Cohen and argues that by applying a kind of "interest-group" view of the First Amendment, the Court actually penalized the values of the Free Press Clause of the First Amendment.