concurring in part, dissenting in part.
I agree appellants are entitled to relief from a judgment premised on a tort allegation. Because we are compelled to respect vital standards on freedom of the press, the judgment on respondent’s contract claim is fundamentally flawed and also should be reversed. See U.S. Const, amend. I (enunciating the freedom of speech, and expressly prohibiting laws abridging the freedom of the press); Minn. Const, art. I, § 3 (likewise adding to the guarantee for free speech a declaration that “the liberty of the press shall forever remain inviolate”).
Support for the contract claim is premised on two categories of argument, and both misshape the law of the case.
First, it is said that conflict with the first amendment here is unsubstantial or even nonexistent. To the contrary, what has happened here involves the exercise of the coercive power of the state to punish the choice of the private press to publish. Making the problem still more critical, this sanction occurs for printing a true story on the purely political behavior of a public figure, and on the effort of respondent to cover the occurrence of that conduct.
Second, addressing the sacrifice of press freedom, it is asserted that this is justified by predominant considerations. This claim is premised on the notion that verbal assurances of a press reporter are uniquely important, either for the sake of respondent or as a measure of improvidence of the press justifying the loss of its freedoms. Here again, the arguments are untenable; they conflict with important decisions delimiting the state interest in common law claims, and stringent restrictions on the notion of any waiver of freedom of the press.
The consequence of these mistaken propositions of law is a decision for sanctions which is out of sync with settled first amendment principles. No authority, direct or by remote analogy, permits an award of damages for publishing political material, and justifies this as an application of state common law not even slightly limited in deference to the first amendment. Nor does any authority, direct or by analogy, permit sanctions for publishing political information and justify this on the premise that the press waived the right to publish, much less on the premise such a waiver occurs upon assurances not to publish solicited informally from media reporters.
More particularly, there are six fundamental misconceptions in the rationale for the contract claim. Four are in the effort to deny that this encroachment on the first amendment is significant. The fifth is the unwarranted enlargement of a state interest in the common law of contracts. The sixth is the wrongful disregard for limits on the notion of a press freedom waiver. In each instance, propositions favoring the damage award are made without prece-dential authority or by reference to cases that do not adequately support the contention.
1. First amendment implicated.
Initially, it is argued that there has been no restriction of press freedom in this case, *263nothing more than “neutral enforcement” of contract law. The trial court concluded that respondent’s contract claim was one with “no constitutional dimension.” This proposition depends on disregard for essential facts of the case, and it relies on authorities having no bearing on the kinds of restrictions occurring here.
We are not dealing with a regular contract claim. Rather, respondent asks the courts to enforce an agreement not to publish — a pledge not to exercise press freedom. In different words, respondent seeks a judicial decree that the choice to publish information is unlawful and subject to the sanction of a money judgment. Neither the promise nor the claim are neutral to the first amendment. Rather, both inescapably implicate freedom of the press.
Authorities are cited for the proposition that civil and criminal remedies may be applied by the courts even if they place “certain conditions” upon the publication of newsworthy information. This statement of law is premised on a concept having to do with remedies which only incidentally affect press freedom, and no authorities on the subject stand for a proposition nearly so bold as to permit the direct imposition of penalties for publishing a political news story. See Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972) (enforceability of civil and criminal statutes only “incidentally burdening” the press); Price v. International Union, 621 F.Supp. 1243, 1246-50 (D.C.Conn.1985) (commercial labor-management contract; trial court dicta on enforceability of union dues provision, thus enabling union political activity; decision without judicial action on the content of employee speech).
In sum, the suggestion here that the damage award is neutral to press freedom is unsound.
2. Intrusion upon editorial process.
To otherwise distance this case from the first amendment, it is argued that the trial court’s judgment does not intrude into the editorial process, but only upon the rights and privileges surrounding promises of anonymity. This observation is essentially inaccurate, and it is not supported by any authority.
The issue on the contract claim focused singularly on the exercise of editorial judgment. Moreover, as suggested by appellant Cowles, the grievance respondent developed before the trial court was not on the choice to disclose his name but on the other contents of the reports — the breach of contract claim was thin cover for a much more intrusive indictment on editorial choices.
When the state determines through civil lawsuits what constitutes a contract, when a breach occurs, and which special circumstances permit disregard of the promise, it usurps editorial decisionmaking and chills exercise of press freedom. In addition, this regulation inevitably shapes the decision about when the promise is appropriately used. It is for editors, not the courts, to decide when promises on content should be made and to decide when publication is important. So, for example, in the context of this case, it is for editors, not for judges, to determine whether identification of respondent was necessary for an accurate report on the political event.
3. However pictured, intrusion is intrusion.
Respondent argues that regulating press freedom in the circumstances of this case does not frustrate purposes of the first amendment but enhances them — that appellants really should accept the trial court judgment, because a little correction is for their own good. Respondent portrays a public policy for anonymity of sources, so that the press has an enlarged capacity to get disclosures of information. Thus, as respondent observes, the press has historically defended its right against disclosure of sources. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978); see also Minn.Stat. § 595.021-595.025 (1988) (statutory limits on compulsory disclosure). Respondent also produced expert opinions that the violated promise of anonymity constitutes a breach of journalistic ethics.
*264Undoubtedly, the good judgment of the press is a matter of serious public importance. Moreover, it is certainly plausible to believe that press agencies will generally deplore compulsory disclosure of sources. Nevertheless, it must be recognized that the honor and the effectiveness of press agencies is a matter of their own prerogative, subject to the public exchange of ideas, all protected by the first amendment. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974) (not yet demonstrated how government can regulate the exercise of editorial control and judgment “consistent with First Amendment guarantees of a free press as they have evolved to this time.”). The agencies of government, including the judiciary, have neither the right nor the duty to measure or establish the wisdom and honor of the press.
4. Freedom from sanctions for publication.
Finally, to further the attempt to imagine a gulf between this case and the Constitution, the plea is made that at least this case does not involve prior restraint. While this distinction may be made, there is no authority whatsoever suggesting cause to minimize, even by comparison with prior restraint law, the extraordinary first amendment danger in permitting damage awards as a sanction for publication on public issues.
To the contrary, according to authoritative declarations of law, it is important that the courts vigorously scrutinize money judgments and other sanctions against the choice to publish.' See Sullivan, 376 U.S. at 277, 84 S.Ct. at 724 (inhibiting effect of damage awards); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986) (“chilling” effect of press burden to prove truth when sued for damages). In addition, as discussed below on the issue of waiver, a federal appellate court in a suit for damages has attested that it is “manifest,” even where an individual has agreed not to publish, that the first amendment would not permit restrictions on publication of unclassified information on the political topic of government activity. United States v. Snepp, 595 F.2d 926, 930 n. 2, 932 (4th Cir.1979).
5. Contract law versus the first amendment.
Ultimately, the majority describes the manner in which the first amendment is implicated by the trial court judgment. The court concludes it has found an “effective incentive” for publishers. It is contended that the trial court's intrusion upon the first amendment is justified.
The argument here to justify limiting press freedom rests on the premise that Minnesota’s contract law is a compelling interest such as to shape and restrict constitutional law. Thus, in harmony with the historic misapplication of various state law claims, the common law of contracts is given “talismanic immunity” from constitutional limitations. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). There is no authority for this position, either in terms of the first amendment or otherwise.
It is said, mistakenly, that the Minnesota Supreme Court has classified the state interest in contract law as compelling. Duluth Lumber & Plywood v. Delta Development, Inc., 281 N.W.2d 377, 380-83 (Minn.1979) is cited as support for such a proposition. The most that can be said of Delta Development is that there are some circumstances where the state’s interest in commercial contracts may supersede some competing interests. Id. at 380-83 (state interest in an Indian agency’s agreement to buy materials from off the reservation compels disregard for competing principles on Indian rights of self-government). Delta Development did not deal with a constitutional right, much less with freedom of the press or any other right under the first amendment. Moreover, the case requires an examination of the circumstances of each case, which must be done here.
How is the state’s interest to be evaluated correctly? As already noted, governmental action in the form of an award of damages stifles first amendment freedoms. *265It has a more “inhibiting” effect than regulation with criminal sanctions. Sullivan, 376 U.S. at 277, 84 S.Ct. at 724. This public restriction of press freedom is unlawful absent demonstration of a state interest “of the highest order.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 105, 99 S.Ct. 2667, 2672, 61 L.Ed.2d 399 (1979).
Before examining the competing state interest, it is necessary to recognize the weight on the other side of the scale. Only an extraordinary state interest permits limitation of the first amendment, because the first amendment has such preeminence in our law. “The suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). The freedom of the press is nothing less than “supremely precious” in our society. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). The Constitution highlights press freedom from among forms of free speech; singularly, our state constitution promises that press freedom will “forever remain inviolate,” untouched. Minn. Const, art. I, § 3.
In addition, it is a settled matter of law that the situation here is at the very pinnacle of concern for press freedom. The topic of respondent’s conduct is a public and political matter which the Supreme Court finds “at the heart of the first amendment’s protection.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707 (1978) (citing Thornhill v. Alabama, 310 U.S. 88, 101, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940)). Speech on public issues rests "on the highest rung of the hierachy of first amendment values.” Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980). To be even more particular, “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for public office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).
How significant is the competing state interest? There are some identifiable state concerns that supersede the freedom of the press. Thus, for example, in Sullivan and its progeny, the United States Supreme Court carefully enunciated the nature and extent of an overriding state interest to protect individuals from publication of false information. Only recently the Court is-suecl another among several decisions on state interests in protecting privacy. The Florida Star v. B.J.F., — U.S. -, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). In Florida Star, the court noted various other significant state interests, including its interest in fair criminal trials. Id., — U.S. at - n. 5, - n. 6, 109 S.Ct. at 2607 n. 5, 2608 n. 6.
In this case, respondent did not act as a private figure but as a political operative in public places, dealing with a purely political topic. The disputed publications of appellants were certainly on “matters of public concern.” Thornhill, 310 U.S. at 101, 60 S.Ct. at 744. No privacy interest is involved; in contrast, the topic requires the most urgent respect for first amendment freedom that is appropriate for political campaign activity. Monitor Patriot Co., 401 U.S. at 272, 91 S.Ct. at 625.
Further, respondent’s claim is not premised on the notion of a published falsehood. We are dealing with true information, and it is the truth that has hurt respondent. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (“Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.”).
What then is the state interest reflected in this trial court judgment? Respondent was given assurances of anonymity and he acted on them. He may have trusted that nothing more would be said about his conduct. The bargain was broken and respondent suffered damages. Still, respondent identifies the interest as one to uphold an “ordinary commercial arrangement.” The interest is reflected in the common law of contracts. Incidentally, a great portion of this common law is given over to the notion *266of equitable principles that preclude mechanical application of contract doctrine.
The state’s interest to enforce performance of contracts, in the circumstances of this case, is mostly common. Cf., e.g., Delta Development, 281 N.W.2d at 380-83 (interest predominates over certain statutory or treaty interests, and then only in limited circumstances). Even if viewed expansively, it does not rise to the prescribed highest order which permits disregard of the first amendment.
The events here are colored singularly by a political scheme to broadcast a political attack but at the same time to evade responsibility for the act. Respondent was the chosen operative for that purpose. He went into the forums of public discussion to volunteer information, and to elicit promises that his unseemly activity would be covered up. He assembled the ingredients for an editorial predicament: to publish respondent’s information as an anonymous report would be petty; to bury the information he delivered would be partial; and to imprecisely attribute disclosure of the information to a candidate’s campaign would be illegitimate. To accomplish his ends respondent chose not to approach the editors who would be expected to make publication decisions. He chose not to make his proposal in a deliberative setting. Instead, he approached reporters on their beat, expecting he might readily arouse in them some desire for nuggets of political news.
Whether or not this course of conduct produced an agreement according to the niceties of contract and agency law, the enforcement of the purported agreement is not a matter of state interest of the highest order. Moreover, because respondent’s concealment attempt did not regard false information or private conduct, his complaint involves a state interest in civil sanctions which is unadorned by any additional cause for coercive steps against the press. We need not decide whether some agreements on the content of publication might be enforceable. In the circumstances here, the Constitution should prevail.
Some might prefer wording this rationale on contract claims in terms of the law of contracts on agreements void as against public policy. The public policy in this instance is first amendment law, and this alternative approach to the issue requires the same comparison of competing interests. Whichever approach is taken, the result is the same. The contract claim should not have been tried and a judgment on the claim should not be affirmed.
6. First amendment not waived.
Respondent contends that the newspapers waived constitutional freedoms by agreeing not to expose his conduct. Here, respondent puts his argument in the form addressed in Sullivan: whether the press has done anything to forfeit its freedom under the Constitution. Sullivan, 376 U.S. at 271, 84 S.Ct. at 723.
The waiver argument provides a new framework to examine this first amendment issue, but is twice mistaken. First, the waiver contention is premised on a contract claim already defective for want of an adequate state interest for its protection.
Second, respondent’s waiver argument exposes further obstacles to his contract case. There are stringent conditions for waiver of first amendment press freedoms. The broad view of waiver urged by respondent and adopted by this court requires disregard for the law of the ease on these conditions.
Singularly, the waiver contention here rests .on the proposition that the first amendment may be waived when it is clear one has done so knowingly and voluntarily, a matter of law attributed to Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1096 (3rd Cir.1988). This description of the law is incomplete, even as to the language of Erie. Id. at 1094 (no such waiver absent “clear and compelling circumstances.”).
The courts scrutinize the claim of waiver with vigor more clearly evident than already observed in assessment of state interests. “[Cjourts indulge every reasonable presumption against waiver” of any fundamental constitutional right. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, *267393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937) (citing Hodges v. Easton, 106 U.S. 408, 412, 27 L.Ed. 169 (1882)). If waiver of first amendment press rights can occur at all, it will arise only in “clear and compelling” circumstances. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967). If a waiver is identified, it “must be narrowly construed to effectuate the policies of the First Amendment.” National Polymer Products, Inc. v. Borg-Warner Corp., 641 F.2d 418, 424 (6th Cir.1981).
The circumstances here do not constitute, clearly and compellingly, a case where first amendment freedom has been renounced. Respondent solicited promises of reporters to serve his personal interests, to hide political conduct that others would believe to be shabby. He neither sought nor obtained a deliberative pledge of anonymity by media editors. Finally, what respondent wanted was not discussed, viz., an editorial decision to repudiate the fundamental responsibility to fairly and truthfully inform the public on political campaign conduct. The issue is not whether a waiver occurred under these circumstances for civil law purposes. We are not at liberty to disregard the constitutional conditions on waiver.
Given publication of true facts on an important event of a political campaign, the clear and compelling case here is for upholding press freedom. On both a regular contract approach and a waiver analysis, respondent’s breach of contract claim was constitutionally defective and should not have been tried.
Further analysis reveals the waiver concept is even more restricted, and respondent’s contract claim more surely defeated. To explain this proposition, it must first be observed that there is no precedent for a finding of waiver by agreement on the part of the press, and no more than mixed indications regarding waiver by agreement for any political speech. Respondent cites as authority on the issue the per curiam decision of the United States Supreme Court in Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980). In Snepp, the court found enforceable a former CIA agent’s agreement to submit material for pre-publication review. However, the holding was not based on waiver of rights or the effects of a regular agreement, but on the intelligence agent’s trust relationship in having access to classified information, such that his agreement for pre-publication clearance was a trust agreement.
More importantly, Snepp, which reviewed a trial court damage award, stands for a very different conclusion of law. In this and other decisions on the rights of former CIA agents, dealing both with prior restraint and damage claims, it has been recognized that because of the first amendment the agreements of agents against disclosure are “manifestly” unenforceable to the extent those agreements address non-classified information. See United States v. Snepp, 595 F.2d at 930 n. 2, 932 (notwithstanding Snepp’s agreement to never divulge “any information concerning intelligence or CIA that has not been made public by CIA,” “manifestly the first amendment would not permit the CIA to withhold consent to publication except with respect to classified information not in the public domain”); Snepp, 444 U.S. at 510, 511, 100 S.Ct. at 765, 766 (twice noting without correction the Fourth Circuit opinion that Snepp had a first amendment right to publish unclassified information). United States v. Marchetti, 466 F.2d 1309, 1313, 1317 (4th Cir.1972) (as to unclassified information, the first amendment precludes disclosure restrictions established “contractually or otherwise;” by signing a secrecy agreement, Marchetti “did not surrender his First Amendment right of free speech.”).
Why might waiver be so inapplicable in the context of the first amendment, at least as to true information on political affairs? I suggest that disfavor for such a waiver harmonizes with the interest of the people generally, discussed in the conclusion of this opinion, for the unfettered flow of public information. As observed there, freedom of the press is everyone's right, not belonging alone to the editor and publisher. How can the law attribute to the press the capacity to waive a right which is not its own?
*268Clearly, there is a general interest of a unique kind regarding press freedom on political facts. We need not decide whether this policy precludes waiver of the freedom in all such cases. At least in the circumstances here it should be held that there was no waiver and that there was no enforceable contract.
7. Acquisition of information.
Finally, respondent states an additional argument needing only brief attention. Addressing both his tort and his contract claims, respondent suggests that appellants’ conduct constitutes wrongful acquisition of information. Although this argument may have bearing on a claim of tor-tious misconduct, I do not perceive its relevance to the contract issue. There was no wrongful act of appellants in connection with the conduct of their reporters or in the acquisition of information peddled by respondent. Respondent’s grievance is with the editorial choice to publish, which invites attention to the earlier acquisition events only insofar as they bear on the flawed claims of a contract or a waiver of first amendment rights.
8. Conclusion.
The award of damages here directly and substantially implicates the first amendment, and the vitality of the freedom of the press predominates in the face of competing considerations on contract law and waiver of rights. A judgment for damages in this case erroneously restricts a fundamental freedom we are to hold inviolate.
Each misconception discussed here poses the same danger, a construction of constitutional law which licenses judicial action, employing the common law, to decide whether press reports are just and to exact a penalty for a publication found to be objectionable. This is fundamentally offensive to the first amendment. “Truth and understanding,” said Milton to Parliament in 1644, “are not such wares as to be monopolized and traded in by tickets and statutes and standards.” J. Milton, Areo-pagitia, The Portable Milton 181 (1977).
Correctly applied, the first amendment guarantees that the press has special immunity from officials willing to restrict its freedom. Neither the courts nor other agencies of government can deal with the conduct of publishing in the same way they handle other conduct with similar characteristics. Why must this be so? First, although the press often cannot claim protection afforded to the weak, it is as likely target of regulation as the weakest citizen because it is the critic of the regulator, the adversary for many designs of public figures. Properly upheld, the first amendment defeats this risk. In addition, the first amendment is not singularly for protecting press agencies, but generally “to prohibit government from limiting the stock of information from which members of the public may draw.” Bellotti, 435 U.S. at 783, 98 S.Ct. at 1419. It is the high interest of the people against government regulation, not alone the interest of the speaker or publisher that is threatened by judicial proceedings on common law claims. Speech on public affairs is “more than self-expression, it is the essence of self-government.” Garrison, 379 U.S. at 75, 85 S.Ct. at 216. Even more to the point, demonstrating an interest everyone shares with the private press:
A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.
Grosjean, 297 U.S. at 250, 56 S.Ct. at 449. In sum, the publication conduct of the press cannot be governed by the courts in the same manner as other conduct is judged. The award of damages here defies these principles and conflicts with the very essence of a special freedom of the press under the Constitution.
I join the majority on respondent’s tort claim, but I respectfully dissent on the choice to affirm the portion of the judgment premised on a contract claim.