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It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness. Charles Dickens, A Tale of Two Cities (1859)

As spring draws to a close, the death earlier this season of a prominent Minnesotan recalls the landmark First Amendment litigation he sparked.

The decedent was Dan Cohen, a well-known Minneapolis public figure who passed away April 4at age 87. During his life, he was a major political figure: a member of the Minneapolis City Council, including serving as president of that body, as well as heading the citys Planning Commission, along with a couple of failed runs for mayor, separated by a 44 -year span in 1969 and again in 2013.

But it was his role as a litigant that led to his greatest renown as the prevailing party in long standing case titledCohen v. Cowles Media Co.,501 U. S. 663 (June 24, 1991) a dispute that spanned a decade and created a new and important law at the Supreme Court level and, for that matter, in Minnesota jurisprudence as well.

His passing a little over 10 weeks ago provides an opportune occasion to review his case, which was decided by the U.S. Supreme Court, 23 years ago this upcoming Monday.

The case, which generated four decisions in the Minnesota judicial system and one at the U.S. Supreme Court, came in the waning days of the 1982 gubernatorial campaign in which DFLer Rudy Perpich was seeking to regain the position, which he had held for a couple of years in the late 1970s. His running mate was Marlene Johnson, a St. Paul businesswoman and the first major party woman candidate for lieutenant governor.

Shortly before the Election Day (no early voting back then),Cohen, a Republican operative, leaked to a pair of reporters for the Star Tribunein Minneapolis and thePioneer Pressin St. Paul that Johnson had a previous minor record for shoplifting, which he documented to the reporters upon a promise that his anonymity would be maintained.

The reporters agreed, but their editors overrode their promises and decided to out Cohen for his role in the matter. The articles in the two dailies focused upon his role in leaking the information and his connection to the Republican candidacy of Wheelock Whitney, a prominent Twin Cities businessman from a well-known wealthy family.

The attack seemed to garner support for the Perpich ticket, which rolled to an easy victory, leading to eight years in office. That, in addition to his previous years in office, made him the states longest-serving governor before being defeated in 1990 by Republican Arne Carlson.

As for Cohen, litigation loomed, rather than politics. He sued the two newspapers in Hennepin County District Court, asserting a variety of claims, premised largely on breach of contract due to breaking the promise to maintain his anonymity, as well as fraud.

Cohen, skillfully represented by attorney Elliot Rothenberg triumphed at the trial court level, obtaining a $700,000 verdict, consisting of $200,000 for the breach of contract claim and $500,000, including punitive damages, on the fraud issue.

His damages stemmed, in part, from his claim that being outed as having leaked the material caused him to lose his joband other employment opportunities, a premise that the jury accepted in awarding him the large verdict.

The newspapers, alsorepresented by high-quality counsel, appealed the decision and obtained a pair of rulings in the Minnesota court system largely adverse to Cohen.

First, the Minnesota Court of Appeals, while upholding the claim for compensatory damage for breach of contract, reversed the fraud determination, tossing out the accompanying $500,000 punitive damages.Cohen v. Cowles Media Co.,445 N.W.2d 248 (Minn. App. 1989).

But the state Supreme Court went a step further. Affirming dismissal of the fraud claim, it held that the contract claim could not be pursued either, on grounds that a contract cause of action is inappropriate for this particular circumstance. 457 N.W.2d 199 (Minn. 1990).

That leftCohenwith a $200,000 award, including interest, for his breach-of-contract claim but remediless on the fraud claim and accompanying punitive damages.

But the case still had a lot of vitality to it, including two more Supreme Court decisions: one at the federal level and one here in Minnesota.

At the U.S. Supreme Court, the justices addressed a new issue that had not been tried, briefed, or argued before the State Supreme court: promissory estoppel. 501 U.S. 663 (1991). Addressing that issue, which had only been obliquely raised by a question posed during oral argument before the state Supreme Court, the U.S. Supreme Court, in a 5-4 ruling, questioned whether [the] First Amendment bars a promissory estoppel cause of action. The court, however, rejected the claim on grounds that enforcement of anonymity under the promissory estoppel theory would violate the First Amendment rights of the newspapers.

The majority decision, written by Justice Byron White, answered the question in the negative by pointing to a well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement subjects the press to incidental effects on its ability to gather and report news. As Justice White further explained, there is no special immunity for the applicability of general laws [and the press has] no special privilege to invade the rights and interest of others.

That decision drew a dissent from Justice Harry Blackmun of Minnesota, joined by three others, expressing his concern that the effect of this decision is to punish the press, which he lamented was inappropriate because the First Amendment should protect the reporting of truthful information regarding a political campaign.

So, the decision, which was rendered on June 24, 1991, sent the case back to the Minnesota Supreme Court. After a seven-month gestation period, the court in Jan. 24, 1992, rendered a ruling upholding the same promissory estoppel claim that it previously had rejected. Justice John Simonett, writing for the court, addressed the novel legal issue of first impression presented by the case, which he framed as whether enforcement of the promise of anonymity is required to prevent an injustice. Feeling that neither side in this case clearly holds the higher moral ground, the justice from Little Falls, joined by all six of his colleagues, resolved the case on legal grounds that Cohen was entitled to a remedy to avoid an injustice.

That relief consisted of upholding the $200,000 damage award without remand or new trial since that amount that had already been determined by the Hennepin County jury, bringing to an end the nine-plus year confidentiality contretemps.

But Cohen, an accomplished writer, wasnt through; he told the absorbing tale of his litigation in a 2005 book, Anonymous Source: At War Against the Media.

Two decades before Cohens case concluded, another Cohen litigant made First Amendment history inCohen v. California, 403 U.S. 15 (1971).reh. denied, 404 U.S. 1876 (1971), decided on June 7, 1971, nearly 20 years to the day before the Cohen-Cowlescase.

This Cohen criminal controversy arose out of a disturbance of the peace charge against a 19 year-old department store worker who was observed wearing a jacket while walking in acorridor of a Los Angeles courthouse with the apparel adorned on the back with a profanity: Fuck the Draft. Convicted of violating the California disorderly conduct law, 485 of the state Penal Code, for offensive language, and sentenced to 30 days in jail, he argued to the Supreme Court that application of that measure violated his First Amendment right of freedom of expression, a position that, like the laterCohencase, was accepted by a five-member majority of the tribunal.

Writing for that quintet, Justice John Harlan, the courts most conservative member at the time, observed that the freedom of expression is powerful medicine whose objective is to remove government restrictions on freedom of expression. While recognizing the impropriety of the F word, which Cohens lawyer uttered during oral arguments, despite the discouragement from doing so by Chief Justice Warren Burger, Harlan threw out the conviction because the state did not present any specific and compelling reason to ban the word beyond a general tendency to disturb the peace, which was insufficient to sustain the charge notwithstanding the distasteful wording on the apparel.

The two Minnesota jurists, the chief justice and Harry Blackmun, both dissented, and were joined by Justice Hugo Black, an old/line free speech absolutist who had mellowed over the years, and Justice White, the author of the subsequentCohencase.

In dissent, Justice Blackmun deemed the youth to have engage in impermissible conduct, which lacked the protection accorded speech under the First Amendment.

Thus, bothCohenlitigants, the outed operative and the profane jacket wearer, each narrowly prevailed on different facets of First Amendment litigation.

But, wait,theresmore.

A prior Cohencase before the Supreme Court, addressed a different First Amendment issue on the topic of taxes. The case wasFlast v. Cohen,392 U.S. 83 (1968), which also incidentally was decided in June of the year, three years beforeCohen Iand 23 years beforeCohen II.

The case was a lawsuit by taxpayers challenging the expenditure of federal funds under the 1965 federal law that allowed funding of instruction and education materials for parochial schools. The challenges claimed that the expenditure of public funds violated the Establishment Clause of the First Amendment, which bars government support of religion, but in doing so they had to overcome a seemingly impenetrable barrier established by the Supreme Court inFrothingham v. Mellon,262 U.S. 447 (1922), which generally bars taxpayer lawsuits in federal courts. This Cohencase was brought against Wilbur Cohen, the commissioner of the Department of Health, Education & Welfare, who was in charge of distributing the funds, the carved-out exception to barring the taxpayer lawsuits.

In an 8-1 decision, written by Chief Justice Chief Justice Earl Warren, the court held that a taxpayer lawsuit can be maintained only in limited circumstances, establishing a two-prong test for allowing taxpayers to sue: (1) there must be a logical link to a precise constitutional infringement; and (2) a showing that the expenditure exceeds the taxing and spending authority under Article I, Section 8, of the U.S. Constitution, both of which were established in this case. Although the case nominally was decided on procedural grounds, the decision effectively proved to be a substantive one that permitted the taxpayers to prevail on their challenge.

This trio ofCohencases reflects various forms of First Amendment litigation and demonstrates how the Supreme Court can have a dickens of a time adjudicating them.

PERSPECTIVES POINTERS

Key quotes from threeCohencases:

Marshall H. Tanickis an attorney with the Twin Cities law firm ofMeyer Njus Tanick, PA.

RELATED: More Perspectives columns

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Perspectives: Tale of two Cohens: promissory and profane - Minnesota Lawyer