Petitioner
Anthony Herbert
Respondents
Barry Lando, et al.
Petitioner's Claim
In a libel suit, a plaintiff should have the right to discover and inquire into the editorial process and states of mind of those responsible for the publication, in order to meet plaintiff's burden of proving "actual malice."
Chief Lawyer for Petitioner
Jonathan W. Lubbell
Chief Lawyer for Respondents
Floyd Abrams
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
Thurgood Marshall, Potter Stewart
Place
Washington, D.C.
Date of Decision
18 April 1979
Decision
The Court reversed the court of appeals and reinstated the district court's ruling. The Court held that defendants have no privilege under the First Amendment which would bar a plaintiff from inquiring into the editorial process orstates of mind of those involved in the alleged libel, if the inquiry was tailored to the production of evidence considered material to plaintiff's necessary burden of proof.
Significance
This decision was an important one in a chain of appellate cases delineatingthe boundaries of the press's right to publish information about private andpublic figures, and the burden of a plaintiff in a defamation case. The Supreme Court, contrary to defendants' arguments, did not believe that allowing the plaintiff to pursue the requested discovery would have a "chilling effect"on the press, nor cause the press undue or extra costs in producing the evidence requested.
Significant Facts
Anthony Herbert was a retired U.S. Army officer and a Vietnam veteran who hadpublicly accused his army superiors of war crimes and atrocities. Herbert and his accusations were the focus of a Columbia Broadcasting System, Inc. (CBS) television show, written and produced by Barry Lando, and narrated by MikeWallace. Herbert filed a defamation lawsuit after the airing of the television program and the publication of a subsequent magazine article. He alleged that the program and article had falsely and maliciously portrayed him as a liar who created the war-crime charges just to cover up the real reason for hisleaving the army.
During the course of discovery in the pending lawsuit, Herbert's attorney took depositions of several network employees, but responses to his questions were refused on grounds that the First Amendment protected against inquiry intothe states of mind of those involved in the editing, producing or publishingprocess. A motion to compel answers was filed with the district court, whichagreed with Herbert's attorney that the First Amendment afforded no such protections. The defendants appealed, and a divided court of appeals reversed, stating that there was an absolute privilege attached to the editorial processof a media defendant in a libel case. Herbert next petitioned the U.S. Supreme Court who agreed to hear the case on a writ of certiorari.
The State of the Law in 1979
Several years prior to this case, the Supreme Court had decided a landmark defamation case, New York Times v. Sullivan (1964), which distinguished"public officials" from private individuals in actions for defamation. In essence, the Court ruled that some First Amendment protections were to be afforded to speech and the press (media) in the reporting of news or information about public officials relating to their official conduct (the "honest error" defense). Accordingly, a public official who alleged defamation had the burdenof proving that false statements were made with "actual malice," and were not "honest errors." This evidence burden was extended to "public figures" in two subsequent cases, Curtis Publishing Co. v. Butts (1967) and Associated Press v. Walker (1967). By the criteria outlined in these cases, Herbert was clearly a "public figure," which he readily acknowledged.
According to these decisions, in order to prove "actual malice" in a defamation case, plaintiffs such as Herbert had to prove that the defendants published a false statement about them "with knowledge that it was false" or "with reckless disregard of whether it was false or not." Herbert readily conceded that this was his burden. However, it was Herbert's argument that, in order toprove the prerequisite "actual malice," he needed to gain access to information about the editorial process, particularly information about the thoughts,opinions, and conclusions of those who gathered information about Herbert anddiscussed it with their editorial colleagues. Conversely, defendants arguedthat the First Amendment precluded inquiry into these areas, that an absoluteprivilege should protect them from disclosure, and further, that submissionto petitioner's inquiries would place substantial burden and cost upon defendants. They also argued that to not allow such a protective privilege would result in a "chilling effect" on the editorial process, would cause undue self-censorship, and would cause the suppression of truthful material.
The Court's Analysis
Writing for the majority, Justice White rearticulated from previous decisions, "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," and to the "circulation ofinformation to which the public is entitled in virtue of the constitutional guaranties." Noting that the media (including the present defendants) played an important role in providing the public with such information, White carefully assessed whether the creation of a protective privilege as requested by the defendants, "would significantly further these social values recognized byour prior decisions."
White concluded that neither the First Amendment nor the Court's prior decisions protected the media from inquiry into the thoughts, opinions, conclusions, or editorial processes used to gather or publish alleged defamatory information, if the inquiry would "produce evidence material to the proof of a critical element of the plaintiff's cause of action." Further, the Court saw no reason to modify established constitutional doctrines by affording the defendants the requested privilege, as the result would make plaintiff's burden of proving "knowing or reckless falsehood" almost insurmountable. Thus, the Courtconcluded, " . . . the present construction of the First Amendment should notbe modified by creating the evidentiary privilege which the respondents nowurge." Justice White also stated that "only knowing or reckless error will bediscouraged," by the present construction, and that, "constitutional valueswill not be threatened."
Dissent on the Scope of Discovery
In two separate dissenting opinions, Justices Stewart and Marshall questionedthe prudence of what they saw as overly-liberal discovery by plaintiffs in defamation cases. Justice Stewart concluded that information obtained (and opinions held) by editorial and media staff, which was not published, was simplynot relevant to the case. Liability attached only to published defamatory information. Justice Marshall, in turn, was concerned with the unfettered ability of plaintiffs to harass defendants by excessive discovery requests, and saw a clear potential for abuse of the discovery process.
Justice Brennan, who concurred with the majority but dissented in part, believed that the Court should adopt a "qualified" rather than absolute privilege,as requested by defendants, so that plaintiffs in defamation cases could inquire into the previously-discussed areas, only after demonstrating to the trial court that the publication in question represented a prima facie defamatory falsehood.
Impact
The Herbert v. Lando decision became an important authority for plaintiffs in defamation cases to use in support of compelled disclosure of certaininformation which, state by state, and court by court, previously had not enjoyed standardized judicial treatment. State and federal courts remained freeto modify their respective rules of civil procedure, especially those concerning discovery, if it became apparent that abuse of discovery was a real, rather than perceived, concern. In a subsequent case, Branzburg v. Hayes(1972), a divided Supreme Court concluded, by a narrow margin, that the mediamust disclose the identities of confidential sources of information when testifying before grand juries in criminal matters or at criminal trials. Importantly, the Court noted that states were free to enact their own laws creatinga privilege to newspersons, protecting them against being compelled to disclose confidential sources (so-called "shield laws," enacted in a majority of states). The Court also preserved the right of the media to obtain relief against harassment.
Related Cases
Anthony Herbert
Respondents
Barry Lando, et al.
Petitioner's Claim
In a libel suit, a plaintiff should have the right to discover and inquire into the editorial process and states of mind of those responsible for the publication, in order to meet plaintiff's burden of proving "actual malice."
Chief Lawyer for Petitioner
Jonathan W. Lubbell
Chief Lawyer for Respondents
Floyd Abrams
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
Thurgood Marshall, Potter Stewart
Place
Washington, D.C.
Date of Decision
18 April 1979
Decision
The Court reversed the court of appeals and reinstated the district court's ruling. The Court held that defendants have no privilege under the First Amendment which would bar a plaintiff from inquiring into the editorial process orstates of mind of those involved in the alleged libel, if the inquiry was tailored to the production of evidence considered material to plaintiff's necessary burden of proof.
Significance
This decision was an important one in a chain of appellate cases delineatingthe boundaries of the press's right to publish information about private andpublic figures, and the burden of a plaintiff in a defamation case. The Supreme Court, contrary to defendants' arguments, did not believe that allowing the plaintiff to pursue the requested discovery would have a "chilling effect"on the press, nor cause the press undue or extra costs in producing the evidence requested.
Significant Facts
Anthony Herbert was a retired U.S. Army officer and a Vietnam veteran who hadpublicly accused his army superiors of war crimes and atrocities. Herbert and his accusations were the focus of a Columbia Broadcasting System, Inc. (CBS) television show, written and produced by Barry Lando, and narrated by MikeWallace. Herbert filed a defamation lawsuit after the airing of the television program and the publication of a subsequent magazine article. He alleged that the program and article had falsely and maliciously portrayed him as a liar who created the war-crime charges just to cover up the real reason for hisleaving the army.
During the course of discovery in the pending lawsuit, Herbert's attorney took depositions of several network employees, but responses to his questions were refused on grounds that the First Amendment protected against inquiry intothe states of mind of those involved in the editing, producing or publishingprocess. A motion to compel answers was filed with the district court, whichagreed with Herbert's attorney that the First Amendment afforded no such protections. The defendants appealed, and a divided court of appeals reversed, stating that there was an absolute privilege attached to the editorial processof a media defendant in a libel case. Herbert next petitioned the U.S. Supreme Court who agreed to hear the case on a writ of certiorari.
The State of the Law in 1979
Several years prior to this case, the Supreme Court had decided a landmark defamation case, New York Times v. Sullivan (1964), which distinguished"public officials" from private individuals in actions for defamation. In essence, the Court ruled that some First Amendment protections were to be afforded to speech and the press (media) in the reporting of news or information about public officials relating to their official conduct (the "honest error" defense). Accordingly, a public official who alleged defamation had the burdenof proving that false statements were made with "actual malice," and were not "honest errors." This evidence burden was extended to "public figures" in two subsequent cases, Curtis Publishing Co. v. Butts (1967) and Associated Press v. Walker (1967). By the criteria outlined in these cases, Herbert was clearly a "public figure," which he readily acknowledged.
According to these decisions, in order to prove "actual malice" in a defamation case, plaintiffs such as Herbert had to prove that the defendants published a false statement about them "with knowledge that it was false" or "with reckless disregard of whether it was false or not." Herbert readily conceded that this was his burden. However, it was Herbert's argument that, in order toprove the prerequisite "actual malice," he needed to gain access to information about the editorial process, particularly information about the thoughts,opinions, and conclusions of those who gathered information about Herbert anddiscussed it with their editorial colleagues. Conversely, defendants arguedthat the First Amendment precluded inquiry into these areas, that an absoluteprivilege should protect them from disclosure, and further, that submissionto petitioner's inquiries would place substantial burden and cost upon defendants. They also argued that to not allow such a protective privilege would result in a "chilling effect" on the editorial process, would cause undue self-censorship, and would cause the suppression of truthful material.
The Court's Analysis
Writing for the majority, Justice White rearticulated from previous decisions, "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," and to the "circulation ofinformation to which the public is entitled in virtue of the constitutional guaranties." Noting that the media (including the present defendants) played an important role in providing the public with such information, White carefully assessed whether the creation of a protective privilege as requested by the defendants, "would significantly further these social values recognized byour prior decisions."
White concluded that neither the First Amendment nor the Court's prior decisions protected the media from inquiry into the thoughts, opinions, conclusions, or editorial processes used to gather or publish alleged defamatory information, if the inquiry would "produce evidence material to the proof of a critical element of the plaintiff's cause of action." Further, the Court saw no reason to modify established constitutional doctrines by affording the defendants the requested privilege, as the result would make plaintiff's burden of proving "knowing or reckless falsehood" almost insurmountable. Thus, the Courtconcluded, " . . . the present construction of the First Amendment should notbe modified by creating the evidentiary privilege which the respondents nowurge." Justice White also stated that "only knowing or reckless error will bediscouraged," by the present construction, and that, "constitutional valueswill not be threatened."
Dissent on the Scope of Discovery
In two separate dissenting opinions, Justices Stewart and Marshall questionedthe prudence of what they saw as overly-liberal discovery by plaintiffs in defamation cases. Justice Stewart concluded that information obtained (and opinions held) by editorial and media staff, which was not published, was simplynot relevant to the case. Liability attached only to published defamatory information. Justice Marshall, in turn, was concerned with the unfettered ability of plaintiffs to harass defendants by excessive discovery requests, and saw a clear potential for abuse of the discovery process.
Justice Brennan, who concurred with the majority but dissented in part, believed that the Court should adopt a "qualified" rather than absolute privilege,as requested by defendants, so that plaintiffs in defamation cases could inquire into the previously-discussed areas, only after demonstrating to the trial court that the publication in question represented a prima facie defamatory falsehood.
Impact
The Herbert v. Lando decision became an important authority for plaintiffs in defamation cases to use in support of compelled disclosure of certaininformation which, state by state, and court by court, previously had not enjoyed standardized judicial treatment. State and federal courts remained freeto modify their respective rules of civil procedure, especially those concerning discovery, if it became apparent that abuse of discovery was a real, rather than perceived, concern. In a subsequent case, Branzburg v. Hayes(1972), a divided Supreme Court concluded, by a narrow margin, that the mediamust disclose the identities of confidential sources of information when testifying before grand juries in criminal matters or at criminal trials. Importantly, the Court noted that states were free to enact their own laws creatinga privilege to newspersons, protecting them against being compelled to disclose confidential sources (so-called "shield laws," enacted in a majority of states). The Court also preserved the right of the media to obtain relief against harassment.
Related Cases
- New York Times v. Sullivan, 376 U.S. 254 (1964).
- Associated Press v. Walker, 379 U.S. 47 (1967).
- Curtis Publishing Co. v. Butts 388 U.S. 130 (1967).
- New York Times Company v. United States, 403 U.S. 713 (1971).
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974).
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
- United States v. Nixon, 418 U.S. 683 (1974).
- Time, Inc. v. Firestone, 424 U.S. 448 (1976).
- Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
Further Readings
- Biskupic, Joan, and Elder Witt, eds. Congressional Quarterly's Guide to the U.S. Supreme Court, 3rd ed. Washington, DC: Congressional Quarterly, Inc., 1996.
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