Herbert v. Lando
441 U.S. 153 (1979)
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Rule of Law:
The First Amendment does not create a constitutional privilege that shields members of the press from compelled discovery into their editorial processes and state of mind when they are sued for defamation by a public figure required to prove 'actual malice.'
Facts:
- Anthony Herbert, a retired Army officer, received widespread media attention in 1969-1970 after accusing his superior officers of covering up reports of war crimes in Vietnam.
- On February 4, 1973, Columbia Broadcasting System, Inc. (CBS) aired a '60 Minutes' report about Herbert and his accusations.
- The program was produced and edited by Barry Lando and narrated by Mike Wallace.
- Lando subsequently published a related article in Atlantic Monthly magazine.
- Herbert alleged that the broadcast and article falsely and maliciously portrayed him as a liar who fabricated the war-crimes charges as an excuse for being relieved of his command.
- Herbert claimed the publications damaged his reputation and the value of a book he had recently published about his experiences.
Procedural Posture:
- Anthony Herbert sued Barry Lando, Mike Wallace, CBS, and Atlantic Monthly for defamation in the U.S. District Court for the Southern District of New York (a federal trial court).
- During pretrial discovery, Herbert deposed Lando, who refused to answer certain questions about his state of mind and the editorial process, asserting a First Amendment privilege.
- Herbert filed a motion to compel Lando to answer the questions.
- The District Court granted the motion, ruling that the questions were relevant and that no constitutional privilege protected Lando from answering them.
- The District Court certified its order for an interlocutory appeal, allowing the defendants to immediately challenge the ruling before the trial concluded.
- The U.S. Court of Appeals for the Second Circuit (an intermediate appellate court) accepted the appeal and reversed the District Court's order, holding that the First Amendment provided an absolute privilege against inquiry into a journalist's editorial process.
- Herbert then petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does the First Amendment's protection of a free press create an evidentiary privilege that shields a journalist from discovery inquiries into their state of mind and editorial processes when sued for defamation by a public figure?
Opinions:
Majority - Justice White
No, the First Amendment does not create such a privilege. The 'actual malice' standard established in New York Times v. Sullivan, which public figures must prove, requires demonstrating that the defendant published a falsehood with knowledge of its falsity or with reckless disregard for the truth. This standard necessitates an inquiry into the defendant's state of mind. To bar a plaintiff from directly inquiring into the editorial processes and subjective thoughts of those responsible for the publication would erect an impenetrable barrier to proving a critical element of the cause of action. While cases like Miami Herald v. Tornillo prevent the government from dictating what the press must publish, they do not immunize the editorial process from inquiry in a post-publication defamation suit. Evidentiary privileges are disfavored, and creating a new one here would substantially enhance the plaintiff's already heavy burden without constitutional justification.
Concurring - Justice Powell
No, the First Amendment does not create an evidentiary privilege in this context. However, in supervising discovery in a libel suit brought by a public figure, a district court has a duty to consider First Amendment interests. While there is no constitutional privilege, trial judges should weigh the public's interest in a free press against the plaintiff's need for evidence and use their authority under the Federal Rules of Civil Procedure to prevent discovery that is abusive, harassing, or not genuinely relevant.
Dissenting - Justice Brennan
Yes, to an extent. While a journalist's own mental processes should be discoverable, the First Amendment requires a qualified privilege for predecisional communications among editors to protect the 'free interchange of ideas within the newsroom.' This privilege, analogous to executive privilege, is necessary to prevent a chilling effect on the candid discussions that lead to accurate and thorough reporting. The privilege should yield only if the public-figure plaintiff makes a prima facie showing to the trial judge that the publication constitutes a defamatory falsehood.
Dissenting - Justice Stewart
The issue is framed incorrectly. The 'actual malice' standard from New York Times v. Sullivan concerns only whether a publisher knew a statement was false or acted with reckless disregard for its truth, not their motive or ill will. Therefore, inquiry into the 'editorial process'—why certain material was included or excluded—is simply not relevant to the constitutional standard of liability. Such questions about journalistic judgment and motive are irrelevant under Federal Rule of Civil Procedure 26(b) and should be disallowed on that basis, making a constitutional privilege unnecessary.
Dissenting - Justice Marshall
Yes, a privilege is necessary to protect against the chilling effect of abusive discovery in defamation cases. The threat of protracted and expensive discovery can deter the press from publishing controversial stories. Therefore, I would create an absolute privilege to foreclose discovery into the substance of editorial conversations to protect the collegial process essential to sound journalism. While inquiry into an individual journalist's state of mind may be permissible, it should be strictly supervised by district courts under a high standard of relevance.
Analysis:
This decision significantly impacts defamation litigation by denying the press a special constitutional shield against discovery. By refusing to create an 'editorial privilege,' the Court affirmed that the 'actual malice' standard requires plaintiffs to probe the defendant's state of mind, making the editorial process fair game. This ruling places the primary check on potentially harassing discovery with trial judges, who must use existing procedural rules to balance the plaintiff's need for evidence against First Amendment concerns. The case increases the potential cost and burden for media organizations defending against libel suits, as they cannot constitutionally refuse to answer questions about how and why editorial decisions were made.
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