Herbert v. Lando

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 burden of 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 to prove 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 and discussed it with their editorial colleagues. Conversely, defendants argued that the First Amendment precluded inquiry into these areas, that an absolute privilege should protect them from disclosure, and further, that submission to 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.