Herber v. Lando, 441 U.S. 153 (1979)

Herber v. Lando

No. 77-1105

Argued October 31, 1978
Decided April 18, 1979
441 U.S. 153

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Petitioner instituted a diversity action in Federal District Court against the respondents, a television network and two of its employees, and a magazine, alleging that a program aired by the network and an article published by the magazine defamed him. Petitioner conceded that, because he was a "public figure" the First and Fourteenth Amendments precluded recovery absent proof that respondents had published damaging falsehoods with "actual malice" -- that is, with knowledge that the statements were false or with reckless disregard of whether they were false or not. See New York Times Co. v. Sullivan, 376 U.S. 254, and subsequent decisions of this Court. Preparing to prove his case in light of these requirements, petitioner deposed one of the network employees at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process. The District Court ruled that the questions were relevant and rejected the claim of constitutional privilege. A divided panel of the Court of Appeals reversed, two judges concluding that the First Amendment lent sufficient protection to the editorial processes to protect the network employee from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues.

Held: When a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff’s reputation, there is no privilege under the First Amendment’s guarantees of freedom of speech and freedom of the press barring the plaintiff from inquiring into the editorial processes of those responsible for the publication where the inquiry will produce evidence material to the proof of a critical element of the plaintiff’s cause of action. Pp. 158-177.

(a) Contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by this Court’s prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times Co. v. Sullivan,supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, and similar cases. New York Times and its progeny do not suggest any First Amendment restriction on the sources from which the plaintiff can obtain the necessary evidence to prove the critical elements of his cause of action, but, on the contrary, make it essential to proving liability that the plaintiff focus on the defendant’s conduct and state of mind. It is also untenable to conclude from the prior cases that, although proof of the necessary state of mind can be in the form of objective circumstances from which the ultimate fact can be inferred, plaintiffs may not inquire directly from the defendants whether they knew or suspected that their damaging publication was in error. Pp. 158-169.

(b) The case for modifying firmly established constitutional doctrine by placing beyond the plaintiff’s reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to a plaintiff such as petitioner, is by no means clear and convincing. The suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times, and furthermore the outer boundaries of the suggested editorial privilege are difficult to perceive. The important interests of petitioner and other defamation plaintiffs at stake in opposing the creation of the asserted privilege cannot be overridden on the ground that requiring disclosure of editorial conversations and of a reporter’s conclusions about veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decisionmaking. If the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely those that have been held to be consistent with the First Amendment. Pp. 169-175.

(c) Creating a constitutional privilege foreclosing direct inquiry into the editorial process would not cure the press’ problem as to escalating costs and other burdens incident to defamation litigation. Only complete immunity from liability for defamation would effect this result, and this Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. Until and unless there are major changes in the present Federal Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse. Pp. 175-177.

568 F.2d 974, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 177. BRENNAN, J., filed an opinion dissenting in part, post, p. 180. STEWART, J., post, p. 199, and MARSHALL, J., post, p. 202, filed dissenting opinions.