Rothenberg, Elliot C., 1939-

Elliot C. Rothenberg (HLS 1964) distinguished attorney in the Minneapolis area for many decades, and expert in legal questions about the rights and responsibilities of the news media, acquired his special experience and reputation in the course of his successful representation of Dan Cohen in the case of Cohen v. Cowles Media Company. He has published in a number of newspapers and periodicals, including The Wall Street Journal, Columbia Journalism Review, and various law reviews. His briefs and oral arguments before the US Supreme Court are published in Landmark Briefs and Arguments of the Supreme Court of the United States, Vol. 200. He also published a popular book, The Taming of the Press, recounting the story of the Cohen v Cowles case, and gave talks and presentations at law seminars and conferences.

Rothenberg was born in 1939 in Minneapolis, where he spent most of his life. After attending law school and receiving a JD degree in 1964 from Harvard, he worked at the Department of State from 1968 to 1973. As a State Department legal and political advisor, Rothenberg served in the American Embassy in what was then Saigon, Vietnam from early 1969 to August 1970 and then at the U. S. Mission to the United Nations from August 1970 to late 1972. He then returned to Minneapolis, where he worked for the Minnesota Public Interest Research Group, and met and married Patricia Hirl, also a lawyer. Shortly after their marriage, he and his wife started a private law firm. Rothenberg went on to be elected to and serve in the Minnesota State Legislature, then to run for Attorney General of Minnesota. After losing that election, he returned to practicing law, both privately and as president of a public interest foundation he had begun in 1983.

Acquainted with Dan Cohen since 1982, Rothenberg took an interest in his case from the first, and followed it closely, publishing an article on it (" No Way to Treat a Tipster ") in the February 1986 issue of the Columbia Journalism Review. This article, in which he defended Cohen's position and foresaw the potential for setting a major precedent with the case, was what convinced Cohen that he must get Rothenberg to represent him.

Cohen originated in the last days of the 1982 campaign for governor of Minnesota, when Dan Cohen was doing public relations work for the Republican candidate, Wheelock Whitney. Acting for an inside group of campaigners for Whitney, Cohen disseminated to the news media copies of official court records setting forth the judicial history of Democratic candidate for lieutenant governor Marlene Johnson's prosecution of the crime of "petit theft." Cohen approached reporters at four news agencies, and offered the information only after having received explicit promises that his name would not be mentioned as the source. In violation of their promises, two newspapers, the Minneapolis Star Tribune and the St. Paul Pioneer Press, both published his name, and wrote stories which focused on his "dirty trick" of anonymously providing such information so late in the campaign, while at the same time minimizing Johnson's crime (she had only one shoplifting arrest; it was many years ago; she took only $6 worth of sewing supplies; her father had died right before the incident; and the conviction had been vacated). The day the articles were published (one also mentioned his employer's name) Cohen was fired from his job. The Star Tribune continued to publish scathing editorials, including a cartoon showing Cohen as a garbage can, and actually got him fired from a second job a few weeks after the first. In December of 1982 he initiated a lawsuit against the owners of the Star Tribune and Pioneer Press -Cowles Media Company and Northwest Publications, Inc., two huge, wealthy and influential media corporations

It is plausible to imagine that Rothenberg's sympathy for Cohen was enhanced by the many similarities or parallels between the life stories of the two men. Both were Jews who grew up in Minneapolis; they both attended Harvard Law School; and despite being at a disadvantage in their home state because of their conservative Republican convictions and Jewish ethnicity, both returned to Minneapolis and made forays into politics. By 1982, after being elected and serving in local or state government, then losing election to positions of greater responsibility, both men had switched out of politics. Cohen, after serving as alderman on the City Council in the 1960s, and being elected by his colleagues as President of the City Council, then ran unsuccessfully for Mayor of Minneapolis. After his defeat in that election, he moved into public relations work, but continued to be active in campaigning for other Republicans. Interestingly, in the 1982 elections in which Cohen came to grief, Rothenberg was also savaged by the Star Tribune, in his case for his stand in favor of the death penalty, in his own (unsuccessful) campaign for Attorney General. Like Cohen, he had been the subject of derogatory editorials and an insulting cartoon.

In February of 1986, impressed by Rothenberg's aforementioned article in the Columbia Journalism Review, Cohen hired him to replace his original counsel. Rothenberg gave up his small office and began practicing at home, devoting all his time to the Cohen case. By 1982 he was divorced and remarried. In a curious twist of fate, after the divorce his ex-wife became associate general counsel for the Minneapolis Star Tribune, and was the chief counsel and counsel of record in the case from its inception in late 1982 through the summary judgment motion, which she argued, up until the trial in 1988 when Jim Fitzmaurice and the firm of Faegre & Benson took over leadership of the case. After the case had been decided she published an article lamenting the outcome (" Cohen's Confidential Conversation ", The Hennepin Lawyer, November/December, 1991, by Patricia Hirl Longstaff).

In The Taming of the Press Rothenberg emphasizes that he handled the case alone, at first using an electric typewriter, after 1987 an ancient computer, with no other help. As he points out, moreover, the opposition he faced was formidable. The Star Tribune was represented by Faegre & Benson with 229 attorneys (Pat Hirl playing a minor part), and they were joined by the Pioneer Press's legal team, the firm of Openheimer, Wolff & Donnelly, with 198 attorneys. Furthermore, when the case was brought beyond the trial court, the newspapers hired other lawyers with particular expertise in appeals, and one who specialized in Supreme Court work. For Rothenberg, in contrast, not only was this his first experience before the Supreme Court, it was also his first jury trial. As if this were not enough, the newspapers were also aided at the Supreme Court level by amici curiae, who filed a brief jointly, which represented Advance Publications, the Newhouse publishing conglomerate; the American Newspaper Publishers Association; the American Society of Newspaper Editors; the Associated Press; Copley Press; Gannett Company, which publishes USA Today and other newspapers as well as many television and radio stations; the Newsletter Association; the New York Times; and the Times Mirror Co. which publishes the Los Angeles Times, the Baltimore Sun, and other newspapers. There was no Amicus brief filed in support of Cohen.

For Cohen to win the case was a victory of the underdog fighting entrenched forces in another sense as well, as Rothenberg tells it in The Taming of the Press. In the previous twenty years three major cases had greatly strengthened the position of the press, giving them considerable leeway in defending themselves against suits for defamation of character, invasion of privacy, and intentionally inflicted emotional distress. The most important of these three cases, New York Times v. Sullivan, established that a public figure suing for defamation of character must, in addition to proving the report was false, show that the media either knew it was false or showed reckless disregard for the truth in publishing it. (There must be actual malice, not just negligence, on the part of the press.) The Supreme Court again made a finding favorable to the press in Time v. Hill, a case in which an ordinary family sued Time Magazine for invasion of privacy. Even though here the plaintiffs were not public figures--they came to the attention of the public only because they were crime victims--and even though false information was published which endangered their lives, Time won the case because actual malice on its part had not been shown. Hustler Magazine v. Falwell established that even if a public figure could prove a story was patently false, had been published maliciously, and was intended to inflict distress, he could not win his case unless the story was also made believable. The Court found that a cartoon depicting Jerry Falwell having sex with his mother was protected by the First Amendment because it was deemed a symbolic expression of editorial opinion, obviously not claiming to be factual. Taken together, these decisions gave a powerful message that the essential matter in such conflicts was to ensure the freedom of the press and the widest possible availability of information to the public. The higher courts deemed it better to err on the side of permitting publication of stories that might later turn out to be false, and that might injure reputations unfairly, than to risk having the media, in fear of law suits, hold back information that might be true and important.

In this climate of opinion, where it had become a formidable task to sue a newspaper for libel no matter how strong one's case, Cohen's situation presented additional difficulties. For one thing, with his history as a controversial figure in local politics, and author of a high profile, provocative weekly column in a major newspaper, Cohen qualified as a public figure-- certainly, at least, in Minneapolis. Secondly, he was not claiming that the information published in the newspapers was untrue. Finally, the articles he was complaining of were crucially concerned with a political campaign-what was involved was the election of the governor of Minnesota. As the newspapers repeatedly argued, the election of leaders by the people is the defining event in a democracy, and an election without well-informed citizens is an exercise in absurdity: if anything should have First Amendment protection, surely it is a political campaign.

Cohen's position in the case, then, would seem to be hopelessly in opposition to the whole tide of legal reasoning of the previous twenty years. But from the beginning Rothenberg took a completely different tack. Rather than depicting the wrong done as a violation of Cohen's privacy, or defamation of his character, he reframed it as a contract violation (also, at the trial court level, a tort).

Rothenberg's reasoning was roughly as follows: without interesting news stories a newspaper would not sell; to be interesting, indeed to be truly news, a story should contain at least some information to which others are not privy; this often means a story that has been deliberately veiled in secrecy; and whatever the motivation of a person who offers information that others are determined to keep secret, s/he almost inevitably fears exposure of his/her own identity. At this point we arrive at what was most novel in Rothenberg's formulation: the story has become, in this thinking, a financially valuable commodity to the newspaper, and the opportunity to convey the story to the public anonymously is now a valuable service to the source. From here it follows that the agreement between the two parties to exchange the one for the other is clearly a verbal contract.

Thus Cohen, acting on an explicit verbal contract with representatives of the two defendant newspapers, tipped them off to a valuable story. The newspapers violated their contracts with Cohen by publishing the story, then refusing to accord him the confidentiality they owed him in return. Trusting them to respect the contracts, he took the risk of giving them the information; they betrayed him, and as a result he suffered the major financial loss of being fired from his job.

Rothenberg's innovative application of contract law to the anonymity promise worked for Cohen, and set a precedent of not allowing newspapers a First Amendment exemption from liability for betraying sources' confidentiality. People who acted as anonymous sources of news were now protected by the basic constitutional right (from Article I of the US Constitution) of having their contracts (in this case with the media) upheld by courts.

Rothenberg's use of newspaper articles merits special comment. He states in The Taming of the Press that this was the first case in which such articles were used extensively as evidence in a trial, even though there had been a long history of cases in which newspapers were parties. In an interview in Speaking our Minds (Joseph Russomanno, p. 211) Rothenberg says "...the heart of the case, the heart of the trial, especially, was my collection of newspaper articles, editorials, and things of that sort". In the trial and on appeal, the defendant newspapers vainly sought to have the clippings, with their related testimony, deemed irrelevant by the courts. The defense was in general overruled in these attempts to exclude information, and with their frequent objections they sometimes seemed patronizing and dishonest ("Don't listen to the facts, they will just confuse you"), which of course worked to Cohen's advantage, especially in the jury trial.

It seems, indeed, that even more convincing than the specific content of the articles in the exhibits was the general impression created by Rothenberg's approach: he flooded the courts with information, often from the pages of the defendant newspapers themselves, while the self-styled proponents of free speech sought to suppress him. His trial strategy appeared to embody a desire to educate, to enlighten listeners, or to share his understanding with them, rather than to convince them of an interested viewpoint. He projected his faith in the judges and the jury, that once they understood the truth, they would see that Cohen had been unjustly treated.

Rothenberg's strategy, however, could easily have backfired if he had not been able to help people make sense of the data with which he deluged them. In the event, he demonstrated clearly to his audience some little-known realities about the day-to-day practices of journalists; and with that background context clearly in focus, provided a wealth of evidence showing how unfairly Dan Cohen had been treated. To add to its impact, the information was presented in testimony of employees of the defendant newspapers themselves, skillfully brought out by Rothenberg's examination and cross-examination, with their own employee manuals and clippings from their own newspapers as trial exhibits.

One fundamental point on which the papers insisted was that offering anonymity to a source was a highly unusual practice; that reporters were universally aware it was discouraged, and knew never to promise it without backing from their editors. They produced personnel policies stating that a reporter's promise of confidentiality is always contingent on the approval of his editor. They took the position that Cohen's behavior was moreover so depraved and disgusting that it would actually have been unethical not to reveal his name.

Rothenberg succeeded in showing how ubiquitously the newspapers relied on use of confidential sources, how integral the practice was to their day-to-day functioning, and how crucial to their very survival as newspapers. Reporters testified that they were hardly ever in a position to get advance approval from supervisors; that this was well understood by reporters and editors; that their promises of confidentiality had never been broken; that they barely remembered even seeing the personnel policies in question; and that they had certainly never heard at their workplaces of a case other than Cohen's in which a source was gratuitously exposed. By the end of the trial it would have been almost impossible for a judge or jury not to be convinced: confidential promises, far from being rare, were "a cardinal rule of the profession of journalism" (Joseph Russomanno, Speaking Our Minds, page 112). Or to quote from The Taming of the Press, page 256, (as Rothenberg gleefully notes, the quote is from the Minneapolis Star Tribune, after they had lost their case), "'the bedrock principle of journalism [is] that you never give up a source'." Having the ability to identify promising individuals and discreetly cultivate them as potential sources was seen as a major asset in an investigative reporter. Furthermore, that a newspaper's evaluation of the moral standing of a source was irrelevant to the extent of protection of confidentiality accorded that source was demonstrated in court with countless examples-showing the claim that Cohen had been excepted because of his moral turpitude to be completely spurious.

In Cohen, the newspapers had attempted to use the First Amendment to shield themselves from blame for outing an ordinary individual as a source of news about a candidate for public office; their bad faith cost him his job. The dishonesty and injustice to Cohen were remedied by the courts. Reporters also could hold up their heads again, knowing if they gave their word to a source their employers would not make liars of them. Sources would dare to approach newspapers without fear of being exposed, except in certain situations already excluded before Cohen. (Rothenberg points out in his briefs the irony that it was the press that had fought so hard to limit those exclusions, asserting as a First Amendment right its customary practice of protecting anonymity of sources.)

There is another side to Cohen: it sets a precedent for regulating the press, who now must anticipate lawsuits over minor torts and contract violations which may be inevitable if they are to uncover significant news. Examples are given in The Taming of the Press, such as the case of Food Lion v. Capital Cities/ABC. In an investigation of a large supermarket chain, ABC had reporters impersonating employees and using hidden cameras to show that the stores were knowingly selling spoiled meat. Food Lion sued (without denying that they had been deliberately selling rotten meat), and ABC was found guilty of using trespassing and fraud in their investigation. Here, and in numerous other cases in which Cohen v. Cowles Media Co. is cited as a precedent, the outcomes are much more controversial than that of the case itself-which, at least with hindsight, seems the only possible fair conclusion to Cohen's lawsuit.

From the guide to the Case Files from, Cohen v. Cowles Media Company, 1982-2001, (Harvard Law School Library, Harvard University)