Monsters & Contracts

What goes around comes around. President Clinton appointed Judge Colleen Kollar-Kotelly to the federal district court in 1997. Three years later, she had occasion to rule on a contract action by Julie Hyatt Steele against Newsweek, the Washington Post, and reporter Michael Isikoff. Steele talked to Isikoff about the alleged harassment and/or relationship between President Clinton and Kathleen Willey. Steele and Isikoff agreed that their discussion was "off the record," but Isikoff's story printed her name and statements anyway. Steele sued for breach of contract.

After rejecting the defendants' argument that the First Amendment protects a reporter in naming sources regardless of any agreement with those sources, Judge Kollar-Kotelly nonetheless ruled for the defendants. She held that under Virginia common law, an agreement between a reporter and a source that the latter's comments are "off the record" is not meant to create a legally enforceable contract. Judge Kollar-Kotelly relied on what was, at the time, the only previous published ruling on the question, a Minnesota Supreme Court case. In 2006, another federal district judge reached the same result applying Mississippi law. The basic reasoning in each of these cases is the same. Here's what the Minnesota Supreme Court said:
We are not persuaded that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract. They are not thinking in terms of offers and acceptances in any commercial or business sense. The parties understand that the reporter's promise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract.... Indeed, a payment of money which taints the integrity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.
(I haven't found a free web-based version of the ruling in Steele v. Isikoff. It's officially reported at 130 F. Supp. 2d 23 (2000).)

Many people have criticized Samantha Power as naive for not establishing that her statement was "off the record" before calling Senator Hillary Clinton a monster, but my review of the case law indicates that even if Power had gotten such a commitment in advance, it would not have been enforceable. I realize that this is cold comfort for Professor Power.

Posted by Mike Dorf