Herbert v. Lando

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 of information 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 by our 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 Court concluded, " . . . the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge." Justice White also stated that "only knowing or reckless error will be discouraged," by the present construction, and that, "constitutional values will not be threatened."