Fixing a Leak

What happens when a reporter doesn't keep his word to an anonymous source?

Surprisingly, Edwards and Cohen subsequently struck up a rapport, occasionally meeting for tea or dinner. "Our relationship was one of mutual respect and there was nothing personal in the great battle of 1967 and 1968," says Edwards. He believes that Cohen was unfairly demonized for political purposes. "I've been in this town since 1945. I had a pretty good feel for the falseness of the so-called liberals here."

Cohen, however, failed to learn from this experience. By 1982 his political career had long been derailed, but he remained a player in Republican circles. That year Wheelock Whitney was running for governor against DFLer Rudy Perpich. Cohen was occasionally billing hours to the Whitney campaign as a consultant.

In the final days of the race, with polls predicting a double-digit Perpich victory, the Whitney folks resorted to desperation tactics. The campaign had discovered that Perpich's running mate, Marlene Johnson, had two criminal charges on her record, for unlawful assembly and shoplifting. The initial run-in with the cops related to a civil rights demonstration and was therefore of little use. But the shoplifting charge--even though it involved just $6 worth of purloined sewing materials from a Sears store--was more enticing. At a campaign meeting just six days before the election, Cohen agreed to distribute the candidate's criminal record to the media.

Having won an ugly race against the media, Dan Cohen has traded in the political horse race...for horse racing.
Diana Watters
Having won an ugly race against the media, Dan Cohen has traded in the political horse race...for horse racing.

He peddled the documents to various Capitol reporters: Lori Sturdevant of the Star Tribune, Bill Salisbury of the Pioneer Press, Gerry Nelson of the Associated Press, and Dave Nimmer of WCCO. In each instance, Cohen extracted a promise of anonymity from the reporters before sharing the potentially damaging documents.

These vows turned out to be meaningless. Both the Star Tribune and the Pioneer Press ran stories in the next day's paper highlighting Johnson's criminal record--and citing Cohen as the source of the information. Both Salisbury and Sturdevant fought this decision (with the latter refusing to have her byline attached to the story), but the reporters were overruled by their editors. Neither paper acknowledged in their articles that Cohen had been promised anonymity. (The Associated Press honored its deal with Cohen, while WCCO ignored the matter completely.)

The consequences for Cohen were immediate and severe. He was fired from his job at the public relations firm of Martin/Williams. An editorial cartoon in the Star Tribune portrayed him, quite literally, as garbage. And the disclosure of Johnson's shoplifting conviction certainly didn't damage the Perpich campaign: He trounced Whitney by some 300,000 votes.

Cohen might have let the incident die and gone about picking up the pieces of his career if not for a final kick from the Star Tribune. In the weeks after the election Cohen had managed to land some freelance work writing recruitment brochures for the University of Minnesota football program. Then-sports columnist Doug Grow got wind of this arrangement and wrote a piece criticizing the U of M's administrators for putting Cohen on the payroll.

This was the final indignity for Cohen. He decided to sue. "I call that a late hit," he says now. "His ferreting out this needless information that I was doing some work for the university was mean-spirited and unnecessary."

Grow says that he was surprised upon reading Anonymous Source that his column played such a catalytic role. "I'm shocked that this particular column was the thing that pushed him over the edge, but that's his perception of the world," Grow says. "It's one of those great learning exercises for me. Everything you write has impact in different ways."

The trial was an epic battle. Cohen and his equally iconoclastic attorney, Elliot Rothenberg, reveled in their roles as legal underdogs. Rothenberg had never previously argued a jury trial. He was learning on the fly, aping the legal maneuvers of the high-profile attorneys hired by the newspapers.

"Elliot started out the trial fumbling around," recalls Paul Hannah, who represented the Pioneer Press. "Which of course immediately scared the bejesus out of me. It's a wonderful way to endear yourself to a jury."

Hannah notes, however, that Cohen and Rothenberg quickly became adept at working the courtroom. "I think he and Elliot together brought a lot of brain power to the case," he says. "We had a very complicated argument and theirs was very simple. It rang true."

The jury awarded Cohen $200,000 in damages for breach of contract and an additional $250,000 in punitive damages from each of the newspapers for fraud and misrepresentation. The defendants appealed the verdict, however, and the Minnesota Court of Appeals overturned the damages for fraud and misrepresentation. Both parties then appealed to the Minnesota Supreme Court. The state's top judicial body dealt another blow to Cohen, reversing the damages for breach of contract as well.

But in 1990 the U.S. Supreme Court agreed to hear the case. By a 5 to 4 margin, the court sided with Cohen. In 1992, a full decade after the initial fingering of Cohen as the anonymous source in the Johnson matter, he received a total of $331,000--$200,000 in damages, plus interest.

The lasting legal significance of the case is questionable. Mark Anfinson, a lawyer who specializes in first amendment law and provides legal counsel to many media companies (including City Pages), downplays the ultimate import of the case because of its unusual circumstances. "It's extraordinarily rare for journalistic organizations and news organizations to reveal confidential sources," he says. "It's so rare in the profession that the Cohen-type circumstances almost never arise.... It's kind of like Mt. Kilimanjaro. It stands in sort of splendid isolation, more as a geographic feature of the law then something that really influences it much."

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