Anthony Herbert v. Barry Lando, Mike Wallace, Columbia Broadcasting System, Inc., Atlantic Monthly Company, Barry Lando, Mike Wallace and Cbs Inc.

KAUFMAN, R. IRVING Chief Judge: seemingly The narrow issue before scope us—the afforded First compelled disclo sure the editorial im broad —has plications. upon whether, Called to decide extent, figure and what a public bringing may inquire journalist’s action into a thoughts, opinions and conclusions pre broadcast, paring a we must address initial ly the relationship fundamental between guarantee First Amendment of a free press and the teaching of New York Times Sullivan, In accommodating both these interests within our constitutional Abrams, City (Dean New Floyd York scheme, we find regard that due Cahill, Gor- M. Vittor Ringel, Kenneth First Amendment requires that we afford a Jr., Reindel, Eldridge, Paul Carleton &don privilege journalist’s to disclosure aof exer Brothers, Jones, Richard and Coudert Byron cise of editorial judgment. control and and Green & Green, S. Hillman Adria G. counsel), Hillman, for City, York New Lando, Mike Barry I

defendants-appellants Wallace, Inc. and CBS ago, Almost two centuries James Madison Lubell, York decried Sedition Act of 1798 City New as a basic W.

Jonathan departure from our Estreicher, nation’s O’Melveny, commitment to Samuel (Mary K. a free Glickstein, Lurie, press. wrote, and untrammeled Ostrin & Lu- He Cohn, counsel), plain- bell, City, of New York Among principles those deemed sacred in Anthony Herbert. tiff-appellee, America, among rights sacred those con- as forming sidered the bulwark of their Jr., Schmidt, Washington, D. C. Richard liberty, government contem- C., Marks, Washington, D. of coun- & (Cohn plates with awful reverence and would Miami, Paul, (Paul & Fla. Thom- sel), Dan approach only with the most cautious cir- Fla., counsel), James son, Miami, C. Goo- there no one of which the cumspection, Feldman, dale, City, Daniel Chi- New York importance deeply impressed is more Beale, (Isham, Chicago, Lincoln & cago, 111. liberty mind than the Dunham, 111., counsel), Corydon B. New press.1 Scharff, Washington, Laurent City, York J. Dowd, (Pierson, Ball & his has not diminished Washington, force of words D. C. counsel), C., filed a brief for the still recognize over time. We an unre- D. Editors, Society Newspaper plays role in strained a vital the mar- American Sun-Times, Chicago Daily News, ketplace that, without active Chicago of ideas and Co., Publishing marketplace, democracy trade can- The Miami Herald National Louisiana, Co., Inc., The New Cf. Garrison Broadcasting York survive. (Hunt 1906). Madison, 1790-1802, p. Writings James ed. VI the possibility sup- information (1964).2 pressed was libelous. In particular, obligation fundamental to act Invoking broad words of the First fourth branch disclosing official Amendment, never misconduct was stressed: specific safeguards forge hesitated to The administration of government vitality the press. insure continued of become complex, opportunities more repeatedly recognized It has essentially for malfeasance and corruption have mul- aspect tripartite press’s work and tiplied, crime has grown to most serious (1) information,3 (2) function in: acquiring proportions, and danger of protec- its ‘processing’ (3) information and dis- tion by unfaithful . officials . . em- seminating the information. The phasizes the primary vigilant need of a any Court was aware that if link in that Id., courageous press. 283 U.S. at broken, chain were the free flow of infor- 719-20, 51 S.Ct. at 632. inevitably mation ceases.4 The in Near expressed tenet prior re- publication straints on will not lightly The dissemination of news has has, tolerated time and again, time been long been protect accorded constitutional reiterated under circumstances which ac- Minnesota, Near v. In 697, ion.5 283 U.S. Hughes’s centuate Chief Justice concerns. 625, 51 S.Ct. 75 L.Ed. 1357 Chief See, New York Times v. United g., e. Hughes, Court, Justice writing for States, 713, 403 2140, 91 S.Ct. 29 struck down Minnesota al statute which (1971).6 L.Ed.2d 822 enjoin lowed the state to the publication of “malicious, newspapers containing scandal Such anticipatory censorship not ous, defamatory” matter. The Chief justified even by the presence of a counter prior Justice noted that on restraints vailing constitutional interest such as an press impermissible, were notwithstanding individual’s right Sixth Amendment to a exchange 2. The notion that free of informa guaran- that area of free discussion that democracy longstanding tion is vital is a Every teed the Constitution . . . ex- principle pression of the First Amendment. See opinion Strom of on matters that are im- California, 359, 369, berg v. portant 283 U.S. 51 S.Ct. potentiality inducing has the of ac- 532, (1931); Whitney 1117 357, L.Ed. Califor tion in the interests one of rather than anoth- 375, nia, 641, 274 U.S. L.Ed. group society. group power er But the (1927) (Brandeis, J., concurring). See any impose penal moment sanc- Meiklejohn, Speech A. Free also and Its Rela peaceful tions and truthful discussion on Self-Government, (1948). tion to 88-9 merely matters ing interest on a show- may thereby persuaded that others support given passage 3. The take action inconsistent with its interests. “right “open meeting” to know" stat- Id. at 60 S.Ct. 744-755. acquire utes is based on its vital need to infor- Griffin, See also Lovell v. 303 U.S. 58 S.Ct. Note, mation. See Freedom of Information: (1938) (an prohib- 82 L.Ed. 1242 ordinance Regulations, George- The Statute iting “circulars, handbills, the distribution of Note, (1967); Open Meeting L.J. town Stat- advertising, any literature kind” without Know, Fights Right utes: The Press for the prior permission city official invalid on (1962). 75 Harv.L.Rev. 1199 face); Struthers, its Martin v. 319 U.S. (prohibition (1943) 87 L.Ed. 1313 Note, generally Rights 4. See The of the Public canvassing door-to-door purposes of dis- Information, and the Press to Gather 87 Harv. seminating religious prior literature invalid as a (1974). L.Rev. 1505 restraint). protect 5. The First Amendment cases which Corp. Cusack, 6. See also Teitel Film 390 U.S. picketing exhibit like concern with the need to 88 S.Ct. Freed- case, disseminate information. aIn landmark Maryland, man v. 380 U.S. 85 S.Ct. Alabama, Thornhill v. 310 U.S. See, (1965). L.Ed.2d 649 for a historical over- (1940) wrote, Murphy 84 L.Ed. 1093 Justice prior doctrine, Emerson, view of the restraint In the circumstances our times the dissem- Restraint, The Doctrine of Prior 20 Law & concerning ination of information facts Contemp. (1955). Prob. 648 dispute regarded a labor must be as within order, gag public, that a free is a imposing a condition of a Before fair trial.7 they society. free Associated Press v. United admonished judges have been States, 1, 20, 1416, 1424, methods alternative carefully consider must (1945). 89 L.Ed. 2013 publicity. pre-trial the effects mitigate have procedures other venue and Change of The acquisition newsworthy ma Press Associa- Nebraska suggested. been pole press’s terial stands at other Stuart, tion Freedom to cull information function. logically necessary antecedent and to any right effective exercise to distribute any shown Supreme Court has the Nor Indeed, the prerogative news. latter can restraints to invalidate hesitation given meaning not be full unless the former pat do not follow conventional press Note, right recognized. Right The See flow of infor the free where finds terns Information, Press to Gather Col.L. Grosjean v. American imperiled. mation (1971). 838 Rev. 233, 444, 80 Co., 297 56 S.Ct. U.S. Press struck (1936), the Court down L.Ed. 660 Supreme The Court has acknowledged 10 Louisiana on by the State of imposed tax In compelling Branzburg this need. v. it was because advertisements newspaper 655, 2646, Hayes, 408 U.S. 92 S.Ct. 33 to circulation levels.8 graduated reflect (1972), recognized L.Ed.2d 626 the Court the opined that a tax would The such Court right press gather information, to cir and restrict advertising revenues lower “without some protection since for seeking 444.9 Even 56 Id. at S.Ct. news, culation. the the out freedom of could be governmental control —antitrust the one 681, eviscerated.” Id. at 92 S.Ct. at 2656. to applied legislation long been Powell, in a concurring Justice opinion, ar —that the First the and does not contravene principle ticulated the that news gathering justified by its instru has been afforded constitutional even in distribu insuring in the broad mental role reporter the rare case where a was directed tion of news: grand jury. to disclose his sources to a He Amendment, reporter that a would not provid- required noted First far

The grand jury furnish information to a against application to bear argument an ing only a tenuous Act, powerful remote and provides relationship here the Sherman investigation. the matter of its That Amend- to contrary. reasons 711, Goodale, the Id. at 92 S.Ct. 2646. See also assumption the ment rests Branzburg the Hayes v. Developing of informa- dissemination possible widest Newsmen, Privilege Hastings 26 antagonistic L.J. tion from diverse (1975).11 the 709 to the welfare of is essential sources 287, Co., authority course, Md. its more A. S. Abell 218 can the court exercise 7. Of atmosphere impartiality (1958). A.2d to maintain Texas, See Estes in the courtroom. calm only 10. While discuss the we articulation of 85 S.Ct. U.S. however, right gather pertains in no control to information it of such The exercise expression press, Supreme abridge way implies right itself. the the Court has acknowl right edged respect a similar to free unanimously Supreme held the Court 8. The Struthers, speech. City In Martin Sutherland, writing for invalid. Justice statute (1943), U.S. 87 L.Ed. 1313 the pre-Revolu- Court, analogized the statute to municipal invalidated a ordinance Court forbid designed “pre- knowledge” tionary “taxes on ding door-to-door distribution handbills as for, acquisi- vent, opportunity or curtail rights violative the First Amendment of both respect by people knowledge in tion of recipients and the distributors. 247, 56 governmental 297 U.S. affairs.” their 448. S.Ct. Although Branzburg expressed the Court in journalists’ sources, protect need it did problem on the of materials a collection For suggest press enjoyed special not Emerson, press, see T. Politi- of taxation generally right of to information not access States, Rights 602-4 United cal and Civil Washington also Saxbe v. The available. See 1967). Many state court decisions have ed. Co., See, Post Mayor Grosjean. g., e. of Balti- followed and, spews privilege senselessly, has elaborated on forth. The court active This v. F & Branzburg. In Baker judgment exercise human must trans- established Investment, (2d Cir. F 782-3 form the raw of reportage F.2d data into a fin- denied, product. ished The 1972), Court cases (1973), held that a we grant protection 36 L.Ed.2d which to the editor so have to disclose source reporter shaping unequivocal did not news are in their written about block article he had Publishing Miami Herald of an terms. Co. v. Chicago, although subpoenaed to Tornillo, busting racial dis charging a class action do so in the Court unanimously cir that “there are We noted crimination. newspaper held that a could not com- the public ... cumstances accept pelled state to re- journalist’s in non-disclosure of a interest plies. The recognized the treat- outweighs public confidential sources public ment of issues and officials —wheth- private compelled interest testimo er fair or unfair —constituted the exercise Id. ny.” at 782. The nature of that judgment, of editorial control and and that clear: stream of informa interest was a right existence of of reply statute dry rapidly tion would run if confidential unconstitutionally would burden an editor’s sources, fearing the disclosure of their iden choosing exercise of judgment whether tities, remained silent.12 print newsworthy Id. material. 257, 94 af protections constitutional acquisition the Broadcasting Sys- Columbia forded dissemination and The in Court tem Committee, v. Democratic National inevitably Supreme information has led the 412 recognize process 94, 2080, to that the editorial (1973) Court U.S. 93 772 S.Ct. 36 L.Ed.2d had, safeguarded. earlier, The equally year must media is a presaged unqualified the of Tornillo.13 In holding that not a conduit receives information statement (1974) (press tirely con- L.Ed.2d 514 does not have a plaintiff on confidential sources and the inmates). right prison to stitutional However, interview way proving falsity had no gard or reckless disre- Stewart, opin- Justice who wrote the knowledge identity without the of those Saxbe, subsequently in ion for the Court noted sources). generally Comment, See Newsmen's that the freedom of the is structural Privilege Against Compulsory Disclosure Constitution, provision therefore in Sources Civil Suits —Toward an Absolute Stewart, Press," unique. “Or 26 Has- Privilege?, (1973). 45 U.Colo.L.Rev. 173 tings 631 L.J. 13. The Court’s active consideration course, holding in our Baker did not de Of began, course, broadcast medium pend upon with Red either the New York Illinois stat or FCC, Broadcasting 367, Lion There, v. privilege. 395 regarding U.S. 89 utes newsmens’ 1794, Torre, (2d Cir.), (1969). There, S.Ct. 23 F.2d L.Ed.2d 371 259 545 cert. Garland denied, rejected 358 U.S. 79 S.Ct. 3 L.Ed.2d Court the broadcaster’s chal- (1958), compelled lenge, 231 the First Amendment our on conventional First Amendment circumstances, grounds, conclusion. Under similar to the fairness doctrine and to the been disclosure of confidential sources 'has privileged. 986, “right reply” FCC’s rules. The rationale for Inc., Time, 464 F.2d Cervantes holding strikingly the Court’s similar to that 1972), denied, (8th 409 992-93 Cir. cert. upholding application used in of the anti- 35 U.S. 93 S.Ct. L.Ed.2d 257 press. trust served, laws to the Justice White ob- publisher that a was re the court held quired plain to disclose his sources since the substantially Where there are more individu- likely tiff’s libel action was not to succeed. See als who want to broadcast than there are Laboratories, Inc., Apicella also v. Mac Neil 66 allocate, frequencies posit to it is idle (E.D.N.Y.) (court 78 F.R.D. refused order unabridgeable right First Amendment editors of a medical newsletter to disclose their comparable right every broadcast to the sources, although confidential those sources write, speak, publish. individual to or . possessed plaintiffs’ information relevant to al purpose It is the of the First Amendment to effects). drug legations of adverse But see preserve marketplace an uninhibited Hume, of ideas Carey U.S.App.D.C. 160 F.2d 492 ultimately prevail, dismissed, which the truth will (1974), cert. 417 U.S. 94 631 monopolization than (1974) (court rather to countenance S.Ct. or market, of that it dered disclosure of a confidential source where whether the Govern- private allegedly libelous statement was en- ment itself or a based licensee. It ...

979 tion, impermissibly required by the First burdens the work of were not broadcasters reporters and broadcasters.14 accept political adver- paid “ . tisements, observed: II worse, editing is what editors better For for; and choice editing Sullivan, selection applying New York Times v. are addressing Specifically, principles constitutional common law of material.” libel, public figure empowered decisions vindi whether broadcaster’s issue of if he reputation cate his an action could action, Burg- Justice Chief state constituted establish issue that statements at were noted, er false, knowingly or made in reckless disre tous be anomalous for . would gard of the truth. New York Times v. con- hold, promoting name Sullivan, 279-80, U.S. 84 S.Ct. 710 expression, of free guarantees stitutional (1964); Butts, Publishing Curtis Co. v. day-to-day editorial decisions of 162-5, 170-2, U.S. 130 at are licensees broadcast (1967); Welch, L.Ed.2d 1094 Gertz v. Robert respondents. urged by kind of restraints n.6, the First Amend- in the name of To do so L.Ed.2d 789 v. Ginzburg, Goldwater Id., 412 a contradiction. ment would be 1969), denied, 414 F.2d 324 Cir. at 2095. U.S. at L.Ed.2d (1970). Later decisions instructed that the from what we have said It is clear required subjective Sullivan standard in can and dissemination newsgathering into quiry the defendant’s state of direct, mind. indirect, as well as be subverted Thompson, 727, 731, St. Amant v. equally It manifest restraints. (1968).15 can be vitality of the vigilant. if we are not too sapped While left Sullivan a narrow area for unambiguous of Tornillo and CBS wisdom figures action, to maintain encourage, protect that we must limiting have decisions further refined Sul- encroachment, dis full and candid against livan when viewed in the context newsroom itself. cussion within the opinions First Amendment.16 The applying imperatives, of these constitutional light in recog- these additional constraints do so whether, by this is presented issue case safeguards nition constitutional extent, the editori inquiry cloaking press, protect to what into and and the need to during discovery in speak with process, They al conducted editors and broadcasters. ac- type libel the same voice as do CBS and Tornillo. Times New York Sullivan Hence, public question right to receive suitable at 16. of the which the esthetic, moral, social, political, troublesome, recently and access Court has found so experiences suits, ‘public figure’ crucial and which is other ideas characterization in libel 388-90, 89 at 1806-07. Id. at S.Ct. here. is not us. before See Rosenbloom v. Metrome- Inc., dia, 403 U.S. S.Ct. L.Ed.2d brief, succinctly Appellants, their frame in (1971) (Sullivan pri- standard extended to us: the issue before vate individual involved in event of given to the First effect should be What interest); general but see Gertz Robert press of the re- Amendment Welch, S.Ct. L.Ed.2d judgment spect in its exercise of editorial (1974) attorney (Chicago engaged promi- in governed by pretrial in case public figure). nent trial not deemed to be a Sullivan, 254, 84 Times v. New York (1964)? refined, Sullivan been further substan- appeal, appellants do not ask we On this tively procedurally. example, For it and where rulings specific discovery review the unlikely plaintiff will that the succeed on the They only that we articu- seek District Court. claim, merits of his courts have been more delineating general principle the First late elsewhere, willing, area libel than within the applicable to dis- considerations See, grant summary judgment. g., e. Guitar covery judgment under Sullivan. Corp., F.Supp. Westinghouse Electric Appellants at 7-8. Brief for (S.D.N.Y.), and cited 1053 fn.16 cases Appellees instant libel ac- concede that therein. appellee governed Brief for Sullivan. tion example, Buckley For in v. Lit III tell, (2d 1976), denied, 539 F.2d Cir. With these principles forth, set pro- we 1062, 97 50 L.Ed.2d 777 ceed to traverse the facts before us in some (1977), we that statements of opinion held detail. In March Colonel Anthony for recovery could not afford basis a Herbert achieved importance national when libel case. for this circumscrip The reason he formally charged superior his officers, the expression tion of libel was clear: of Brigadier General John W. Barnes and personal opinions views was fundamen Franklin, Colonel J. Ross with covering up vigorous tal to the need debate. In war crimes in Vietnam. claimed, Herbert deed, part parcel paramount in documents filed with the U.S. Army press function of the dissemination of —the Criminal Investigation (CID), Division And, term, just information. last in Ed he had witnessed numerous atrocities while Co., wards v. New York Times 556 F.2d 113 commanding a battalion of the 173rd Air- 1977), Cir. we held that a newspaper Brigade. borne horrifying most in- could not libel an individual when the re volved the murder prisoners of four of war porter engaged reportage in the neutral by South police Vietnamese presence newsworthy there, material. Our concern advisor, of an American callously who too, unhampered was that failed to intervene. Since killings those public.17 bringing news allegedly occurred on February Herbert dubbed them the “St. Valentine’s reciprocal developments These in the law Day Massacre.” of libel and in freedom of the narrow- Herbert ly permit define our task: we must claimed to only reported have all immediately atrocities procedures in Franklin, those libel actions which Colonel least deputy commander of Airborne, the 173rd principle conflict with the that debate on Brigade Headquarters Vietnam, public issues be robust should and uninhibit- to have brought several to the attention ed. If we were allow selective disclosure Brigade’s commander, General Barnes. journalist of how a his judg- formulated But, alleged, Herbert neither was interest- on what to print print, ments or not to we ed investigating the incidents. When judicial would be condoning review of the persisted Herbert in pressing his charges, editor’s thought processes. Such an in- he said that abruptly he was relieved his quiry, which on its face would virtually command, a determination that was subse- boundless, endangers a pro- constitutionally quently affirmed a by military appeals tri- realm, tected unquestionably puts a bunal. His removal as battalion command- freeze the free interchange of ideas er was poor attributed to a efficiency report reporter editor, within A the newsroom. by Franklin, authored Colonel which ac- aware thoughts might that his have to be cused Herbert of having ambition, “no in- justified law, in a court of would often tegrity, loyalty or will for self-improve- discouraged and dissuaded from the cre- ment.” testing, probing, ative verbal and discussion hypotheses and alternatives which are Herbert’s sudden fall grace sur- responsible the sine qua journalism. non of prised many observers. long His career in Indeed, the ratio decidendi for Sullivan’s military had been exemplary, under his on restraints libel suits is concern that strong leadership, the second battalion had judgment the exercise of editorial would be extraordinary exhibited prowess in battle. chilled. military His acumen had earned Herbert Edwards, stated, In we precious nate that the exercise of liberties so speech as freedom of and of the public figure We believe that the interest of a power- sometimes do harm that the state is purity reputation in the of his cannot be recompense; price less to but this is the that pulse allowed to obstruct that vital of ideas paid blessings must be for the aof democrat- intelligence and on which an and informed way ic of life. Id. at 122. self-governing people depend. It is unfortu- stars, and he Herbert during repeated Bronze himself their and three and one Silver to receive extensive conversations. Lando recently been recommended focused on had particular He allegations. spent Cross. some time Distinguished Service in attempting assay whether Herbert an American story fascinated Herbert’s fact, had, reported the St. Valentine’s becoming dis- increasingly was that public Day Massacre Franklin Vietnam on July Vietnam War. In enchanted February protest- Franklin Since by Magazine; interviewed Life he was returning ed that he was from Hawaii New Wooten of the September, James that date, point. Lando concentrated on this an article favorable to wrote Times York Lando obtained Franklin’s hotel bill and a Supersoldier Was “How titled Herbert bill, payment cancelled check in Interviews His From Command.” Fired who verify interviewed others could Frank- Dick Cavett personality television with the lin’s activities on the days. crucial Lando Cavett, which, elicited according to followed questioned Hill, Captain also Bill upon response unmatched of viewer a level whom Herbert relied substantiate his program. In October single any other story. recalled that When Hill Herbert re- embroiled the “Herbert Congress became someone, ported war crimes to he could not Heber, Rep. Edward Chair- when F. affair” say certainty with total that Franklin was Committee, con- the Armed Services man the individual. poor Army remove Herbert’s vinced military allegations record. Other were efficiency report from his also considered. investigated Lando Herbert’s activities dur- thoroughly investigated Army also eighteen-month period between his and, in charges of war crimes Herbert's filing relief from command and the for- General Barnes. exonerated October charges mal war crimes to determine information, reporters with this new Armed whether apprised Herbert had other offi- critically time to exam- the first began for cers in Vietnam of his par- accusations. story. During veracity Herbert’s ine the ticular, highest Lando interviewed the interest, period intense Her- ranking military lawyer judge in Viet- retirement from the ser- announced his bert time, nam John Douglass, Colonel cited, for his deci- He reason vice. emphatically who controverted Herbert’s sion, military harassment incessant assertion that war crimes had brought been his disclosures. because to his Lando attention. also elicited from n Barry Lando, producer of an associated Rosenbloom, attorney Kenneth the military News, one of the Weekend was the CBS investigator Army’s who conducted the in the Herbert many individuals interested inquiry allegations, into Herbert’s the view in June Herbert story. He interviewed military’s handling charges laudatory report produced a and later beyond reproach. was 4,1971 over the July was televised questioned Lando also soldiers had who later, year Lando had A network. CBS served his qual- under Herbert to determine documentary producer for CBS’s become these, ities as commander. One Sergeant He “60 Minutes.” decided program, news Potter, reported upon Bruce occasions military ca- investigate both Herbert’s had which Herbert countenanced com- for a com- charges cover-up his reer recounted, crimes. Potter mission of war ensuing contro- broadcast prehensive example, for an incident in which Herbert only Her- versy. interviewed not Lando a bag helicopter had thrown sand out of a Barnes, bert, questioned but and Franklin ground a war frighten prisoner others, military, who both in and out of prisoner thinking into it was a fellow who that he Herbert’s claims corroborate could ejected. had been crimes, mili- war and that the reported had period, During white- Lando received engaged systematic in a tary had “Soldier,” proof writ- Indeed, the leads which uncorrected a book some of wash. with by ten Herbert collaboration James supplied by have been pursued Lando Although New York Times. responded Wooten of the Herbert to the CBS broadcast by interviewed Lando at- several of those and Lando’s article instituting a defama- verity many CBS, tion action against Lando, of Herbert’s Barry tested Mike Thus, Wallace, correspondent did not. reports, others Herbert for pro- gram, magazine, $44,- and Atlantic Captain alleging James Grimshaw wrote had 725,000 damages injury reputa- his attempted Cong to drive certain Viet once tion impairment and a cave without fe- of his book as injuring soldiers from “Soldier” literary a property. Herbert contended by valiantly male civilians and children en- deliberately that Lando distorted the record hiding Grimshaw, tering place their alone. through selective investigation, “skillful” however, denied the incident had occurred. editing, and one-sided interviewing, and Lando’s research culminated in the tele- that he was deliberately depicted as evasive Selling cast of “The of Colonel Herbert” on in the interview. addition, In Herbert 4,1973. February evening, That Amer- claimed republished Atlantic Lando’s state- people presented ican a were fallen knowing ments that they were false. Lan- presentation hero. The on the air initially do, Wallace and CBS countered that juxtaposed Herbert’s claims and the denials publications represented a fair and accurate of Franklin and Barnes that Herbert ever report public proceedings, broadcast crimes, reported war and then considered good malice¡ and, faith without addition, aspects five detail Herbert affair: program that the and protected article were (1) Lando’s doubts that Franklin was by the First and Fourteenth Amendments. present even in Vietnam to hear of joined, Once the issue was Herbert com- Massacre; Day Valentine’s St. Lando, menced Wallace and (2) Douglass’s Colonel adamant denial deposition CBS. The required Lando reported that war had crimes been twenty-six sessions and lasted for over him; year. The sheer volume of transcript— (3) Kenneth Rosenbloom’s defense of the pages and 240 exhibits —is staggering. Army’s investigation; Lando answered questions innumerable knew, seen; about what he or had whom he (4) Bruce helicop- Potter’s recount interviewed; intimate details of his incident; discus- ter interviewees; sions with form and (5) James Grimshaw’s flat contradiction frequency of his communications with alleged of his heroism in the cave. sources.18 The produced exhibits included While the existence of information corrobo- transcripts interviews; of his volumes of rative of Herbert’s claims was alluded to on notes; reporters videotapes interviews; broadcast, program whole series of drafts of the “60 Minutes” clearly upon cast doubt all of Herbert’s telecast. Herbert also discovered the con- allegations. The telecast concluded with a pre-telecast tents of conversations between Army plea that the make its records Lando and Wallace as well as reactions to conclusively to the end settling the im- documents considered by fact, both. our broglio. close examination of the twenty-six vol- subsequently Lando recounted re- his umes of testimony Lando’s reveals a degree Monthly search in an Atlantic article titled helpfulness cooperation between the article, “The Herbert Affair.” The like the parties and counsel that is to be commended broadcast, upon cast serious doubts Her- in day procedural when skirmishing is the veracity bert’s and concluded that Lando, however, norm. balked when asked American had been deluded Her- a small questions number of relating to his story. beliefs, bert’s opinions, intent and conclusions in testimony during 18. Much of Lando’s concerned the explanations down interviews. Lando’s produced. frequently volumes of his notes which lengthy were regarding led discussions painstakingly deciphered explained subject Lando the matter of his discussions with third short, cryptic, persons. the and often remarks taken order, discovery, sought pursu- that Herbert He claimed program.19 the preparing 37(a)(2) the ant to Rule of the Federal Rules of be with response would inconsistent any Procedure, compelling Civil Lando to re- process editorial afforded the protections Judge spond inquiries.20 Haight, to his af- assertedly These Amendment. the First observing ter that the was of case one first into grouped be inquiries can objectionable impression, concluded that Herbert’s dis- categories: five journalist’s of of covery state mind during his re- 1. Lando’s conclusions He should be broad and rea- unrestricted. investigations regarding search public figure that a heavy soned a bore pursued, be or not people or leads to proving alleged burden of that an libeler pursued, in connection with the to with acted actual malice or reckless dis- the Atlantic segment and ‘60 Minutes’ truth, regard of the necessarily and that article; Monthly subjective fully nature of the libel standard facts im- conclusions about 2. Lando’s justified inquiry into thought Lando’s and his state parted by interviewees processes. veracity respect to of mind Judge Haight dismissed conten- Lando’s interviewed; persons tion of the editorial machinations where Lan- The basis for conclusions 3. constitutionally mind were sacrosanct and he reach a con- testified that did do plain- probing immune from libel concerning veracity clusion importance issue, tiff21 The critical events; or persons, information whether the First Amendment erects any Lando and 4. Conversations between to discovery barriers proc- matter to included Wallace about ess, compelled permit court to the in- publi- from the broadcast or excluded appeal, interlocutory pursuant stant cation; and 1292(b), U.S.C. of the district § court’s order as manifested Lando’s intentions inquiries. Lando answer Herbert’s exclude cer- to include or his decision material. tain IV claim that the consti- with Lando’s We have undertaken this Faced extensive re- view of the process his mental from facts underscore that immunized tution Here, too, protect party person annoyance, a remarkable or exhibited counsel embarrassment, cooperation. oppression, degree In advance Herbert’s or undue burden Judge discovery, expense compel motion to (cid:127). Rule 37 parties might Haight suggested compelling discovery, Judge volun- Haight applied that the many tarily concerning agreement reach these but not rules did consider whether in- objectionable questions. A substantial number quiry oppres- into editorial would be result, questions as a withdrawn were unduly sive or burdensome. objections large to a number of others. were Judge Haight concluded Sullivan had already struck balance between First 37(a) provides that 20. Rule rights repu- and the par- party, upon reasonable notice other A that, argued tation. He since Sullivan allowed thereby, may persons affected ties and all recovery upon showing for actual discovery apply compelling . for an order discovery disregard, malice or all reckless lead- proper. to admissible evidence was He 37(a) pro- implements the Rule A motion under appellants’ dismissed out hand contention 26(b)(1): visions of Rule that Tornillo and CBS mandated additional discovery regarding any obtain Parties protections: First Amendment matter, privileged, which is relevant argument I find defend- pending no substance in the involved matter upon judgment” objec- ants ground based “editorial . . It is not action . . concept. (CBS, sought . . cases Tornil- These will be inad- that the information tion lo, Branzburg) nothing sought do with the have trial if the information missible pretrial discovery reasonably proper appears in a to lead boundaries of calculated discovery alleging prosecu- admissable evidence. suit malicious defamation Further, 26(c) protects party against Rule tion. by empowering sought whom protective to: issue a order district court process of the editorial is human sume very lifeblood values which the Sullivan judgment. journalist constantly The must landmark sought decision safeguard.23 to probe investigate; and he must formulate gainsaid It cannot be that were legislative and, every step, question his views his body require journalist justify his conclusions, tentative or otherwise. This is matter, decisions this such an intrusion process Barry Lando was in which en- would not be condoned. That this invasion suggest gaged and his efforts nature on First rights is about to be scope reporter’s shaping and of the task in by allegedly effected an plaintiff libelled refining a mass facts into finished does not grave reduce the implications for product.22 vitality of the editorial process which proc- very Herbert seeks scrutinize this Court and this court rec- have course, ess. Of he has already discovered ognized guarded must be zealously. It knew, saw, what Lando said wrote dur- makes little sense to afford investigation. ing before, his As we noted one hand and take away it with the other. deposition produced of Lando a massive Accordingly, we remand the district transcript documenting in minute detail the court for an interrogato- evaluation of the jury course of Lando’s research. The in light ries of the principles articulated in free to infer from Lando’s use and applica- opinion. tion of the extensive materials discovered and, important, equally from the failure to OAKES, Judge Circuit (concurring): contradictory heed certain information. If I concur with Judge much Chief Kauf- (and it chooses to so we do have indicated man’s opinion, his broad answer to the cer- express in footnote we no views on the question tified and the overall judgment. the controversy), merits of it can find Because this case breaks new ground in an Lando acted with actual malice or in reck- area of importance, utmost set- warrants disregard of less the truth. ting forth the somewhat different First Now, probe Herbert wishes to further Amendment analysis I use to reach the inquire thoughts, opinions into Lando’s result, ultimate even the risk of some The conclusions. answers he seeks repetition. In the process I will also set strike to heart of the vital human com- my slightly forth own more detailed views ponent process. of the editorial Faced with on the approach that should be taken by the possibility inquisition, report- of such an remand, district court on for whatever journalists ers and would reluctant guidance they may supply. Indeed, express they their doubts. would very be chilled in thought. I above, expressed we tendency

As would be to follow safe course of avoiding know, As we in New York Times v.Co. controversy contention and antithesis —the Sullivan, of the values fostered the First Amend- L.Ed.2d 686 (1964), the Supreme Court ment. “constitutionalized” the law of defamation permit

We inquiry cannot into subjecting requirements Lando’s it to deriving thoughts, opinions and conclusions con- implicit from and in the First Amendment.1 research, characterizing Torts, In (Second) so we Lando’s do 1. See Special Restatement express any (Tent. 21, 1975); Eaton, not mean to view as to the merits Note 3at Draft No. controversy. Through American Law of Defamation Welch, Beyond: Gertz v. Robert Inc. and An Analytical Primer, inquiry reporter’s 23. Selective into Va.L.Rev. 1364- Robertson, thoughts can be far worse than the Defamation and the aspects process. First plumb- all Amendment: In Praise of of his mental Gertz v. Robert Welch, Inc., only particular reporter’s 54 Tex.L.Rev. facets of the For mind, early explication plaintiff likely change the libel is more to distort the tort process. law of defamation into a the nature of the editorial constitu- presents This case question of matter broad involving publication In cases case involving involving allegations whether a affairs public pertaining discovery does2 —to actual malice should be “liberal” this case officials —as public provided by generally have acted as the Federal must Rules liable a defendant by constitutionally Procedure4 and as held as Civil trial malice”3 “actual contemplates only judge, not or should be restricted in certain defined. Sullivan urged ways. specifi- are The restriction on us defamatory statements alleged that the process”5 cally knew is thaf matters of “editorial the libel defendant but that false only with reckless not discoverable at all or or them should were false made they v. falsity. or Gertz under certain limitations. The exact relief their truth disregard of 342, 323, requested 94 remains somewhat unclear since Welch, Inc., 418 U.S. Robert us 2997, (1974); appellant’s New brief would have remand to 789 41 L.Ed.2d S.Ct. Sullivan, supra, 376 the district court “with instructions for that v. Times Co. York by Court to the issues raised appropriate redetermine 710. 84 S.Ct. to Rule 37 [pursuant in fact the motions “the defendant is whether standard Procedure], giving truth of Federal Rules Civil as to the serious doubts entertained Thompson, regard v. due to First Amendment considera- Amant St. publication.” his 1325, 1323, 731, by 20 tions as set forth this Court.” Brief for 727, 88 S.Ct. 390 U.S. 8, Appellant ill will 32-33. Within these broad respect, In this (1968). 262 L.Ed.2d hatred, motive, we are invited in this extraordi- parameters bad plaintiff, toward though ap- nary unique interlocutory in the not injure spite or even desire —malice order,6 discovery to set some lim- peal constitutional opposed traditional untrammeled, on the Dominion its in Sullivan cases See Old involved. sense —is roving discovery preva- that has become so 496, Association of National No. Branch Austin, 264, 281, types litigation today’s lent in other v. 418 U.S. Carriers Letter (1974); legal world. Not without the doubt that 2770, Buck 41 L.Ed.2d 745 94 S.Ct. 882, (2d any paths bring, untrod I Littell, 889 Cir. venture on 539 F.2d ley v. 1062, willing join 97 am denied, accepting the invita- 429 U.S. 1976), cert. (1977). tion. 777 785, L.Ed.2d 50 dimension, Kalven, 26(b)(1). York 4. Fed.R.Civ.P. The New see tional Meaning A Note on “the Central Case: Times Amendment," Sup.Ct.Rev. pro- appellant the First 5. While the area for seeks tection, process,” may initially seem “editorial by vague, guidance provided Chief Justice war, Burger’s Vietnam in Miami Herald Publish- the conduct statements involves It Tornillo, 241, 258, issue, public Co. v. United v. New York Times 418 U.S. 94 S.Ct. Co. 2140, 724, States, 91 S.Ct. and in 403 U.S. L.Ed.2d 730 Columbia J., concurring), (1971) (Douglas, Sys., Broadcasting Inc. Democratic Nat’l L.Ed.2d Army Comm., 94, 124-25, who was a officer a United States 412 U.S. by employee, his (1973). accompanying who official L.Ed.2d 772 See text military against un charges specific inquiry establishment note 37 infra. The areas of public figure, questionably himself plaintiff made sought set out are Chief d thereby inviting an “attention comments.” Judge opinion, Kaufman’s ante at 983. Inc., Welch, 418 U.S. v. Robert See Gertz Attorney Party Workers Gen See Socialist Littell, (2d Buckley 885-86 Cir. eral, (no 1977) 539 F.2d interlocuto 565 F.2d Cir. denied, 1976), discovery ry review of order absent certifica (1977). discretion,” tion, legal “manifest abuse of “extraordinary significance”); question cf. of art” phrase is a “term “actual malice” 3. The Time, (5th McLaney, 406 F.2d Inc. v. “studiously evidently avoided” is now (interlocutory Cir.) denial of sum review of a Eaton, supra note See Court. judgment critically mary appealable because However, shorthand n.87. at 1370 issue), important cert. de First Amendment “knowing falsity or reck- phrase for Sullivan’s nied, 23 L.Ed.2d It is here in disregard test. used of truth” less sense. its accurate outset, there are protects At the familiar land Amendment matters which consti- is, example, necessary marks. There no tute the from compelled inconsistency

internal between a First and, so, if the extent of that compelled limitation dis protection. covery in Sullivan cases on the one hand procedure and liberal rules of civil on the II procedure other.7 The rules of civil ex agree I with the Chief Judge that com- pressly contemplate limitations in at least pelled discovery of the editorial selection First, discovery two areas. where would (cid:127) process implicates the First Amendment. I or “oppression” result in “undue burden” arrive at this position not on First Amend- person taken, deposition being on a whose grounds ment generally light but in of what may a court or even discovery.8 limit forbid seems to the Supreme Court’s evolving therefore, Certainly, plaintiff’s attempt recognition of the special status of the prove actual malice be restrained press10 governmental in our system and the discovery where the he seeks satisfies the special concomitant recognition of the Free 26(c). oppression standard of Rule And Press clause of the First Amendment. Mr. second, 26(b)(1) excepts privileged Rule Stewart, Justice in a speech seminal at the compelled discovery.9 matters from Not School, Yale Law has characterized this surprisingly, privilege insulating journal structural, trend as a institutional differen- ists’ confidential sources compelled tiation between speech freedom of and free-

discovery litigation in civil recog has been of press.11 dom The trend has ex- found nized this court and others. Baker v. F pression that is both developmental and Investment, & F 470 F.2d 1972) 778 Cir. fundamental in Miami Herald Publishing (civil denied, rights litigation), cert. 411 Tornillo, 241, Co. v. 418 U.S. 94 S.Ct. 93 U.S. S.Ct. 36 L.Ed.2d 686 41 (1974). L.Ed.2d 730 (1973); Time, Inc., There the v. Cervantes 464 F.2d established an area (8th 1972) (public 986 figure litigation), Cir. press against denied, “intrusion into rt. 409 the function 93 S.Ct.

ce 939, editors.” Id. at 94 (1973); Apicella see S.Ct. 2839. The Laboratories, Inc., Court held McNeil 66 unconstitutional F.R.D. 78 Florida stat- requiring ute (E.D.N.Y.1975); Fields, newspapers print Loadholtz v. 389 the re- plies of F.Supp. (M.D.Fla.1975). political 1299 But see Dow candidates who had been Court, Superior editorially & Jones Co. 364 Mass. attacked. Chief Justice Burger’s (1973). opinion 303 N.E.2d 847 for a The limitation unanimous Court explained journalists’ “governmental that suggests sources regulation” of the “cru- by analogy that other First cial process” Amendment of “editorial judg- control and on discovery limitations in Sullivan cases ment” cannot be exercised consistently with may be similarly appropriate. evolving The focus of First guarantees Amendment of a inquiry thus becomes whether the First press. free Id.12 Tornillo expressly adopt- suggest Judge Haight I do Pictures, Inc., not mean to States v. Paramount 334 U.S. scholarly opinion simply 131, 166, his below relied on the 92 L.Ed. 1260 discovery rules. Stewart, Press,” Hastings “Or of the L.J. 26(c); Branzburg Hayes, 8. Fed.R.Civ.P. cf. (1975); accompanying see text for; and editing is selection tors are apply The district court declined to the editors —news- material. That of process concept simply choice the editorial on basis do abuse Broadcasting broadcast —can that Tornillo and Columbia or paper doubt, . had to with “nothing proper but do” the bound- beyond power Tornillo, History supra, (1960); Lange, Publishing American 173-74 The Co. Herald Miami J., (White, Speech Clauses, at 2840 and Press 23 U.C.L.A.L.Rev. at omitted). Note, Protections, (footnote concurring) But Red see 88-99 Press su- FCC, supra, Broadcasting U.S. pra High arguably Co. Lion at 342. But the has political 385-86, holding that now, at the established differentiation whether editorializing by radio broadcasters “original position.” Compare or not it was the Stewart, the Federal under doctrine” the “fairness to supra at and Nim- note right access of Act. As Communications guaranteed mer, of the a Introduction —Is Freedom Press Lion, Friendly, see F. Red Redundancy: Does Add of What It to Freedom Guys Guys, the First The Bad Good Speech?, (1975), Hastings L.J. 645-50 Speech Fairness in Free vs. Amendment: supra Lange, with Passim. Schmidt, Compare Broadcasting (1976). B. recognizes 13. Sullivan itself limitations on the Access the Press vs. Public Freedom of So, imposed by courts too, the First Amendment. Tornillo, Abrams, 86 Yale of In Defense Stuart, Press Ass’n v. does Nebraska review). (1976) (book L.J. 361 (1976) 49 L.Ed.2d 683 U.S. opinion, as as the Act of Lion well The Red (judicially imposed gag based, order violates First in- Congress have been on which it is rights press). failing of the creasingly to consider criticized Note, press. g., aspects E. institutional The Radio for Broadcasters: Press Protections Pittsburgh Pittsburgh 14. See Press Co. v. Revisited, Change 52 N.Y.U.L. Cases Relations, Format Comm'n on Human Note, (1977) Press Rev. 2553, 2561, [hereinafter suggests that the The criticism Protections]. Court, upholding the constitutional There validity opinion fail to take into account and Act prohibiting anof ordinance sex-based Speech and Press distinction between advertisements, emphasized: help-wanted Judge Bazelon has noted: As Chief clauses. [Njothing holding govern- in our allows right group right of access or If one any Pittsburgh ment at level to forbid Press group’s present the licensee to have publish and distribute advertisements view, press; independent point no of there is Ordinance, commenting on the the enforce- only speakers. of That a multitude there is might Commission, practices of the ment or permissible the First Amendment if preference employment. propriety of sex However, protected only speech. free also Nor, fortiori, does our decision authorize press. protects the whatever, any restriction whether content Bazelon, Regulation Telecommuni- FCC commentary layout, origi- or or stories (foot- Press, 1975 Duke L.J. cations columnists, Press, by Pittsburgh its nated Protections, omitted); Note, su- see Press note contrary, reaf- its contributors. On the we pra at n. 102. unequivocally protection afforded firm historically there been asserted It has expression judgment and the free Speech and between was no differentiation issues, and other however of views these Suppres- Levy, Legacy of guarantees. L. Press controversial. Speech Early Press in sion: Freedom in a case. Herbert kind of Hyde Park corner aries for the commu- (SDNY 1977). Lando, 73 F.R.D. nity. theory A related press sees the as a appealing may be initial- While this notion neutral conduit of information between in these cases— ly, principle enunciated people and their elected leaders. process of the the editorial theories, my view, These again give think, I protection has, special entitled — weight insufficient to the institutional altogether but control- just pertinent, autonomy of the press that it was the As Mr. Justice ling ramifications.15 Stew- purpose guarantee Constitution to out, Free guar- “the Press pointed art has essence, is, provision structural antee The primary purpose of the constitu- He the Constitution.”16 continues: guarantee tional of a free was . provisions Bill Most of the other in the to create a fourth institution outside Rights protect specific specific liberties or Government as an additional check on the rights speech, freedom of individuals: three official branches. right worship, counsel, freedom Stewart, Press,” “Or 26 Hastings L.J. privilege against compulsory self-in- (1975) (emphasis 633-34 in original). crimination, contrast, name a few. In Clause extends Free Press The structural or aspect institutional publishing to an institution. The busi- not, the Free guarantee Press as Justice short, is, only organized pri- ness points out, Stewart some filigree added vate given explicit business that is consti- stages design the final by the architects protection. tutional of the Constitution. Rather it is at the core understanding essential, This basic I construct, vital to the tensile integri- think, to elementary avoid an error of ty government. of our New See York tempting constitutional law. It is to sug- States, Times Co. 713, v. United 403 U.S. gest the press that freedom of means 717, 2140, 91 S.Ct. 29 (1971) only publishers guar- that are newspaper (Black, J., concurring); United States v. of expression. They anteed freedom are National Committee Impeachment, for 469 freedom, guaranteed sure, that to be but 1135, F.2d 1972). 1142 Cir. To the ex- all,we Speech so are because of the Free tent that independent exercise of edito- Clause. If the Free Press guarantee rial functions is by governmen- threatened expres- meant no more than freedom of action, tal very of foundations the ar- sion, a it would be constitutional redun- masterpiece chitectural that is our form of . dancy government shaken, are the supporting col- also suppose It is a mistake to that the umns weakened.17 only purpose guar- of constitutional press antee a free Tornillo and insure that a Columbia Broadcasting rec- newspaper ognize will serve as the inviolability neutral forum of the editorial func- debate, ideas,” “marketplace for for tion. As they such reflect a keen judicial J., (MacKinnon, concurring) (immense 15. Government intrusion into editorial func- power compelled tions result from disclosure of requires reporter divulge of modern media that conclusions, opinions and intentions. suit), dismissed, sources in civil libel cert. 417 sure, To be Tornillo Columbia Broadcast- 938, (1974). U.S. 94 S.Ct. 41 L.Ed.2d 661 specifically do not deal First Amend- power Judge (and The MacKinnon an ad discovery. they give ment limitations on But Tornillo) vocate the Florida access statute in concept concrete form to the structural may, however, fears be dealt with in other freedom in the editorial selection ways. has, example, The FCC for won court subjected stress, which would otherwise be approval newspaper ownership to bar of broad internally point if not weakened to the of non- single cast/television media ain locale in the repair, by probing drill of unrestrained dis- Comm, future. See National Citizens covery. FCC, Broadcasting U.S.App.D.C. 1, v. - granted, -, F.2d 938 Stewart, supra U.S. note at 633-34. (1977). Carey Hume, U.S.App.D.C. But v. see (1974) F.2d 639-40 Olson, press in Amer- Near Minnesota ex rel. the role of the recognition protection, society its need for 697, 717, ican S.Ct. L.Ed. 1357 by practically been evidenced that has trend (1931). protec- response favor judicial solid solidifying judicial recognition Further tion. compelling institutional need for an in- restraint, prior prohibit- doctrine The dependent in a test press, again censoring publications ing government momentous, less nothing been than is the advance, highest constitutional notwithstanding decision Sixth against presumption19 This magnitude.18 guarantee to a fair trial an prior re- validity of the constitutional impartial judicial jury, restraints on the in- strong when the particularly straints publication concerning of information crim- of news affects the communication trusion only inal trials will be tolerated when less Ne- events. See commentary on current of avoiding drastic methods the effects of Stuart, 427 U.S. Association Press braska pretrial publicity are useless.20 Nebraska 49 L.Ed.2d generally absolutely con been cussion of matters as seems restraints have 18. Prior egregious prepare people as violations the most essential to for an intelli- demned g., Press Ass’n v. rights E. Nebraska gent freedom. exercise of as their citizens.” 2 Stuart, supra, 96 S.Ct. at 2803 427 U.S. Cooley’s Limitations, ed., Constitutional 8th (“A prior . . has immediate restraint . p. 886. If can said that sanction. and irreversible 249-50, 56 Id. at civil sanctions after criminal or a threat of publication oper- The broad order in this case speech, prior restraint ‘chills’ publication ates after to deter free editorial time.”) (footnote for the it at least ‘freezes’ omitted); concerning subsequent publications. choice Corp. City of Chi Times Film See operates prior restraint, Because the order as a 43, 53, cago, 5 L.Ed.2d Grosjean, pre- did tax it should be J., dissenting). (1961) (Warren, The C. Emerson, System sumed invalid. See T. prior precise parameters doc restraint Expression Freedom of 503-12 Fur- Near v. Min have never been delineated. trine thermore, impinges the order most sen- Olson, ex nesota rel. press, sitive functions the motivations (1931), expanded Eng the classic 75 L.Ed. 1357 thought processes behind involved in edito- publication prohibiting with definition of lish thus, decisions; presumption rial the should be approval government of the out advance preclude given prior all more the force. The restraint against publication injunction an cases, as well as Tornillo and Columbia Broad- by matter enforced a and scandalous malicious casting, against appear to the be directed dan- subsequent contempt order. The later threat by ger self-censorship press arising the injunction prior a viewed as re of an was executive, subsequent legislative concern with straint; metaphor “chilling effect” while the scrutiny. judicial or It is the these already opera yet it not been devised was had truly gives concept afford that rise to cases the ap scope of is broad the doctrine tional. The parent Estate, press coequal of the as a holding Grosjean Fourth our v. Ameri from the 444, 233, republic respect, Co., democratic in constitutional 297 U.S. 56 S.Ct. 80 can Press though formally (1936), imposed incorporated a tax on even not into our L.Ed. 660 where governmental system newspapers publishing entity. a advertisements as structuralized by the circulation was amount of measured States, v. 19. New York Times Co. United su- prior restraint found be unconstitutional 2140; 714, pra, Organiza- 403 at U.S. 91 S.Ct. advertising revenues the tax lowered because Keefe, 415, for a Better v. 402 tion Austin U.S. at Id. 56 and restricted circulation. 1575, 419, (1971); 91 29 L.Ed.2d 1 S.Ct. Ban- explained Justice Sutherland S.Ct. scope Sullivan, 70, Books, 58, v. tam Inc. 372 U.S. 83 prior doctrine as enunci of the restraint 631, (1963). S.Ct. 9 L.Ed.2d 584 in Near: ated object stated is that the The conclusion there example increasing judicial 20. Another rec- provisions pre- was to of the constitutional fundamentality ognition of the of the Press publication; previous restraints vent guarantee newly perceived is the status of com- protec- not to limit the the court was careful speech. See v. State Bar of mercial Bates way right any particular of the tion Ariz., 350, 2691, 433 U.S. 97 S.Ct. 53 abridging L.Ed.2d it. . Assocs., Township v. 810 Linmark Inc. Cooley Judge laid the test to be has dotvn Willingboro, 431 U.S. prevented applied were evils to —“The (1977); Virginia press merely, any L.Ed.2d 155 macy State Bd. Phar- censorship but of the Council, Virginia by v. government Citizens Consumer means of which action Inc., general might prevent S.Ct. 48 L.Ed.2d 346 dis- U.S. such free it Stuart, supra, U.S. future resulting prior Press Association from the judicial or- 2791. The Freedom at foreseeable, S.Ct. is a perhaps der likely, result. in- against governmental guarantee Press “The special of a prior vice restraint is that surely is at process on the editorial trusions communication will suppressed, either when, here, other consti- strong least as directly by inducing or excessive caution rights are not stake. tutional speaker, adequate before an determina- unprotected tion that is by the First short, underlying the principles Amendment.” Pittsburgh Press Co. v. apply restraint cases in this prior access and Pittsburgh Commission on government Human though even Rela- situation tions, 376, 390, publica- 2553, 2561, ordering the content of neither publication. directly restraining (1973). 37 L.Ed.2d 669 tion nor This a concern government question The critical is whether directed “institutional viability” of impermissibly impeding press. Id. at 93 S.Ct. 2553. Unin- press; time21 at which function hibited discovery into the motivations of intrusion occurs should not —it cannot the editor in a libel poses precisely action —matter.22 Because broad orders the danger sought by be avoided compelling disclosure of the editorial selec- landmark cases which have established the chilling result of “the tion can prior restraint doctrine as hornbook consti- interchange of ideas within the news free tutional law. Accordingly, the principles room,” process” ante at the “crucial underlying the ap- doctrine necessitate the judgment” protect- control of “editorial plication guarantee the Free Press by ed Freedom of Press clause. Miami protect independence Tornillo, Publishing supra, Co. v. Herald against discovery. such as much U.S. at This is no means the first instance in had jeopardy pub- as if the court restrained which First Amendment self-censorship ab initio. For in the considerations lication (1976); Bigelow Virginia, phrase “prior obviously 21. The restraint” no longer temporal The Sullivan meaning. connotes strict itself, subjecting indicate, doctrine the common law of Court cases see note 18 su- limitations, pra, First Amendment while ad- meddling freedoms after expression generally, printing dressed to New York programming op- has occurred Sullivan, 254, 269, Co. Times “prior erates aas restraint” future editorial also reflects a chilling decisions by virtue if the effect created pervasive Supreme Court awareness of ar- Emerson, supra interference. See T. system democracy given terial flow to our note at 511. through press. the channels of a free The Sul- was, all, livan doctrine after enunciated in a acknowledged It often been that trivial newspaper. against opinion suit a the The of types governmental distinctions between of in- extensively history drew on the upon trusion will not be relied when the effects Acts, discredited Alien and Sedition id. at 273- impinge guarantee. the Free Press 77, emphasizing Report Madison’s to the effect rejecting argument the that there ais press has a can- that “the exerted freedom in meaningful government difference between re men, public vassing the and merits measures of stricting press the content of communications every description, of which has not been con- compelling publish and the what “rea the fined to strict limits the common law.” published,” son them tells should not be the (quoting Id. at 275 4 Elliot’s Debates on the “[g]overnmental Court in Tornillo noted that (1876)). Federal Constitution 570 Mr. Justice publishing restraint need fall into famil Goldberg, concurring, advocated unconditional patterns iar or traditional to con protection First Amendment to criticize official governmental pow stitutional limitations on too, He, heavily Id. 298. conduct. at relied 256, ers.” 418 U.S. at 94 S.Ct. at 2839. See stable, the need for robust debate to ensure a responsive Investment, 778, Baker F F v. & 470 F.2d 785 government. democratic See at id. (2d 1972) (Kaufman J.), denied, Cir. cert. 411 Dorsen, generally 1 300. See N. P. Bender & B. 966, 2147, (1973). U.S. 93 S.Ct. 36 L.Ed.2d 686 Neuborne, Emerson, Haber & Dorsen’s Political Rights (4th and in the Civil United States 20-51 1976) Dorsen], ed. 1 N. for an his- [hereinafter analysis of the First torical Amendment.

991 and Colum- Tornillo that recognizing By It rules.23 procedural special dictated have constriction require a Broadcasting bia a in situation first the even is not protect discovery rules normal First that held court press from process selection beyond case in a protection extends an addi- add simply we scrutiny, compelled in Sulli- established liability standards the interest of in rule procedural tional from chilling undue prevent order in van free- institutional independent, an ensuring itself.24 litigation pro- level Only press.25 dom remains to be determined.26 tection Oklahoma, See, g., cations media” and v. states the rule in e. Broadrick terms 2908, 611-14, 601, “publisher precise 37 L.Ed.2d 830 a 93 S.Ct. or broadcaster.” The challenge (1973) (relaxed standing therfore, holding rules stat of the case does not [sic] allegedly beyond of the First Amend published by violative utes extend a statement a Investment, supra, ment); F 470 media; Baker v. & F member the communications journalists’ (rejecting at 783 disclosure requirement F.2d the constitutional of fault on the rights except under limited case part sources circumstances). civil defendant turn out to be holding, though limited to this unlikely. this seems Indeed, qualified those Sullivan the Court course, inconsistency there Of would be no if self-imposed procedural by limi standards the Sullivan rule were abandoned in favor of independent an ex that would make tation it non-liability public figure plaintiffs. the entire record. New York amination inception rule, Sullivan, supra, 26. From its the Sullivan U.S. at 285 & Co. v. Times Time, law, 710, spared n.26, Pape, matter v. of substantive has not Inc. been 84 S.Ct. see 279, 284, Black, 633, Douglas 28 L.Ed.2d 45 of criticism. 91 S.Ct. Justices and Gold- U.S. Litteli, Buckley supra, berg (1971); thought at v. 539 F.2d the actual malice test constitu- normally taking tionally inquiring place A of courts number deficient for first summary judgment attitude toward cautious into editor’s As state mind. Mr. Justice more relaxed constitu explained: have been somewhat Black Washington v. Post libel cases. Co. tional “Malice,” Court, even as defined is an 32, 34-35, U.S.App.D.C. Keogh, 365 F.2d elusive, concept, prove abstract hard to denied, (1966), cert. U.S. 967-68 disprove. requirement hard to that mal- (1967); 1 N. see 87 S.Ct. Dorsen, proved provides ice be at best an evanescent prevail, supra To note at 693-95. critically right for the to discuss moreover, again it Sullivan as established public affairs . self, plaintiff’s evidence must be “convinc (Black, J., 376 U.S. at 84 S.Ct. at 733 clarity,” preponderance. a mere rather than concurring). Goldberg Mr. Justice elaborated Sullivan, supra, 376 v. York Times Co. New by noting right further to criticize see Wasserman at “ misconduct, speak official ‘to one’s mind’ 7, 9, Inc., Time, U.S.App.D.C. 424 F.2d . about officials and . affairs denied, J., concurring), (Wright, depend upon probing by jury should not L.Ed.2d U.S. Freund, press.” of the motivation of the or citizen Id. Brennan, Jr., 86 Yale L.J. J. William (Goldberg, J., 84 S.Ct. at 735 concur- Amendment consider First ring) (citations omitted). and footnote And in readily to a held to lead more have been ations two, Goldberg quoted his footnote Mr. Justice conveniens, Buckley finding of forum non from Mr. Justice Jackson’s dissent United Corp., 183-84 373 F.2d York Post New Ballard, 78, 92-93, States v. 882, 1967), jurisdiction, New York lack of Cir. 88 L.Ed. 1148 is difficult to (5th Connor, F.2d 570-73 Times Co. separate, practically philosophically, “what 1966). Cir. is believed” “what is believable.” 376 n.2, (Goldberg, J., U.S. concurring). 298-99 84 S.Ct. 710. this conclusion creates 25. To the extent that inconsistency judicial treatment of Professor Emerson has between written non-press defend- the actual malice rule is on the one hand other, inconsistency subject may very be same defects that led ants on the majority reject upon of non-redundant nature of said to rest [Sullivan ] guarantee. liability[,] See note 12 of broader tests . the Freedom Press of leaves (Second) supra. speaker roughly degree of Torts But see Restatement the same of 580B, (Tent. d Draft No. negligence at 29-30 § Comment risk the earlier rules of and scope 21, 1975), discussing engenders v. Rob- approximately of Gertz the same amount Welch, Inc., supra: imposes self-censorship ert of . . . [and] judicial impossible problem an was the the Gertz case The defendant speaks publisher magazine. The Court administration. of a Emerson, supra frequently “communi- T. note at 535-36. media” and “news through III ed compelled disclosure of matters at the heart of the process. editorial appropriate pro- level of selecting the process, we the editorial are tection for The answer is not free of doubt. Strict possibilities. with three theoretical faced logic leading to the selection of option one First, as did the lower might we conclude appeal. has surface Approach number two struck the ultimate court that Sullivan has seems like a reasonable compromise at first plain- so that the libel appropriate balance blush. inBut the delicate precious area of permitted a level of tiff must be First liberty, see Baker v. F & the substantive law of coterminous with Investment, F supra, 470 F.2d at so, the plaintiff libel. If then constitutional subtly discerning eye is necessary. Hard inquire permitted every be into would choices; cases make for hard vision must state of aspect of the defendant’s mind acute, only not be it peripher- must also be discovery stage with little no inhibi- al. Second, might decide that tion. we while argument logic of strict —that generally struck the substan- Sullivan Sullivan test of knowing-or-reckless-falsity balance, preclude it tive does not restraint assumes open-ended discovery pur- for the compelled discovery, specifically where pose of proving actual malice —is deficient are unnecessarily First Amendment values respects. First, several the Sullivan by the nonconstitutional interest threatened way Court in no indicates it doing discovery. adapt We could liberal anything setting more than forth substan- in the of confiden- developed test disclosure It tive rules. does not deal with the meth- tial source cases: evidence of editorial proving od of actual malice.28 only Actual mal- process is when is direct discoverable proved can ice in a ways. number of highly of a relevant matter which evidence Logical final- inferences from the inconsistency, otherwise obtained.27 And cannot say, between a ly, might opt program’s the conclusion that the television we content contrary plaintiff might to constitutional facts which a process, independently provide actual malice must be establish privilege and that would other than that obvious proved by starting point evidence obtain- for such proof.29 however, argument, Emerson also attacks the Sullivan & n.*. This Professor overlooks the rationale, majority’s liability set forth in Garrison v. distinction between standards of Louisiana, 379 13 L.Ed.2d proving liability appro- the means under the priate no calculated falsehood is es- standard. Tornillo and Columbia Broad- part any exposition casting of ideas as incon- sential have not altered the substantive law of concept with the of Sullivan itself. See sistent They libel established in Sullivan. articulate Emerson, supra, at 536. But even inferior protection T. broad First Amendment of editorial upon judicial courts know that occasion issue, then, federal simply decisions. The may compromises expres- opinions involve whether and to what extent fact; encompasses sion to reach result in here there was at compulsory disclosure accommodation, procedural 24 su- processes least note mental of editors. The free pra. principles being applied of these cases are persuasive arguments might However these procedural rule, limit a not to alter the substan- writing slate, be if we were aon clean as an tive law of libel. inferior court we are of course bound to follow rule of the mind, Sullivan. Thus the editor’s state of goes perhaps 29. A case our court further plaintiff, but vis-á-vis the vis-á-vis any permitting proof than other in of bad mo falsity being published the truth or of what plaintiff tive directed toward the to show the plaintiff, proper inquiry. about the is a focus disregard reckless of truth that the actual mal requires. ice test of Sullivan See Goldwater accompanying note 36 See text infra. Ginzburg, 1969), 414 F.2d Cir. Appellee denied, argues that Tornillo and Columbia 24 L.Ed.2d Broadcasting liability (1970) (“evidence negligence, have not affected media of motive progeny, relying under Sullivan and its purpose intent be adduced for the liability establishing, by reaffirmation Sullivan appropri Court’s cumulation and Welch, Inc., supra, inferences, standard in Gertz Robert ate the fact aof defendant’s reck knowledge falsity”). 418 U.S. at decided on the lessness or of his Gold water, day Appellee however, as Tornillo. Brief for at 29 same was not concerned with the Second, balance, by permit- circum- the Sullivan Moreover, might a adduce plaintiff ting plaintiffs opportunity the to ac- prove or inter- participants from evidence stantial malice, deems a level chill- tual certain of In this program. on the television viewees ing-effect fallout to be with the consistent un- case, example, documents furnished for However, permitting First Amendment.32 Act indi- of Information Freedom der the compelled discovery process of the editorial may be state of mind Lando’s cate that the indubitably would increase level of impinging on the directly without provable ostensibly chilling way in a not con- effect opinion I offer no While process.30 editorial Thus, templated by Sullivan. is one of this admissibility adequacy on the thing product to the that its end tell is malice, it is clear actual prove to evidence to the actual malice standard and be exam- state mind can editor’s that an plaintiff prove a is to that entitled actual at the heart discovering facts without ined malice; quite say it is another to that the Limiting discovery process. editorial produced which process editorial the end not at the persons matters to those product question in is itself discoverable. does not trans- process the heart of an inquiry simply chills not the mate- Such nullity into a for rule the Sullivan form published rial but the relationship among figures. They can public putatively libeled expressed conversations, editors. Ideas in endangering without malice prove memoranda, actual like, handwritten notes and the held to discoverable, which Tornillo process in the editorial if would the future “like- muted, to a ly”33 vigorous the lead more less First Amendment.31 protected discovery plaintiff’s into the edi- malice in the common law sense of ill boundaries will principally plaintiff. with dealt but rather the But torial toward Sullivan itself distin- sufficiency and the the adduced guishes evidence the common law malice actual mal- charge jury judges, the on to proof correctness of Limiting ice. of actual malice as defined appropriate law. standard substantive in Sullivan resembles rules of other evidence which limit “search for truth” in the inter- documents, prepared Lieutenant 30. The See, higher policy. g., of a social ests e. Fed.R. Reed, Jr., that in antici- F. B. indicate Colonel 407, precluding Evid. quent introduction of subse- pation told Colonel of the broadcast Lando prove negligence remedial measures premise is Her- that that “Lando’s stated Reed promotion safety. encourage the order to if can’t a liar and he has stated that he bert is develop incidents in number of sufficient Castillo-Puche, 32. Hotchner v. 551 F.2d 910 not be de- account can [sic] which Herbert’s bunked, denied, - U.S. -, 1977), cert. Cir. story.” for will no Brief then there (1977), provides L.Ed.2d 95 an excellent (Exhibit I). Appellee On December at 56 example inhibiting effect that Sullivan Ross Frank- Lando interviewed Colonel J. may interview, on First During exercise Amendment freedoms. Reed was lin. Hotchner, biog present, “persisted] defendant had written a Lando contention [his] debunking Hemingway uncompli raphy is Herbert. . Ernest with that he interested mentary plaintiff, me that Mike informed After interview he references to the editor, agreed publication pursu do the narration and figure. Wallace Prior to story equally debunk- depart convinced that legal ant recommendations of that he has Co., Inc., [the] Lando asserts Herbert. Doubleday suggested ment of & that go segment it will final decision passages “be or toned a number of eliminated portray convincingly Herbert he unless can though Id. at Even the author down.” 912. II). (Exhibit guy.” The third Id. at bad in his manu “vouched for the statements” 20, 1972, on December reveals that document script, “accepted suggested he modifica Major meeting Sidle General Lando self-censorship Id. was nonethe tion.” peice aimed at de- his [sic] “indicated may imposed despite the that it less fact have long against fight bunking his Herbert in unnecessary in view the court’s been subse he Army. would indicated Further Lando passage quent conclusion that “[w]here me- the failure some attention focus verification, incapable independent story prior ‘puff- out Herbert’s to check dia ing convincing are indicia of unreli where there no plans up’. focus on four He him [Sic.] ability, publication passage cannot con in Her- are contained events whcih [sic] or five disregard truth.” Id. at stitute reckless destroy factually Herbert’s book berts [sic] III). credibility.” (Exhibit Id. General, 381 U.S. See Lamont v. Postmaster 1493, 1496, 301, 307, concededly Limiting plaintiff’s wishing proof (1965) regulation adducing (postal those deprive the best him of promise the editorial give-and-take vague, creative test is difficult of applica chilling tion, ex- This incremental effect likely and hence room. to be subject the chilling litigation.36 the level of effect contem- constant effect, ceeds In dis the covery process itself, the balance. plated Sullivan and the resulting liti gation over the “directly-related,” “highly- Finally, logic the fatal flaw of the strict relevant” “otherwise-unobtainable” even consider Tor- is its failure position standards, are not merely likely to make Broadcasting’s ramifi- and Columbia nillo’s cautious, editors more but inevitably will ignores special It status which cations. require them be. The chilling effect guarantee Free Press accords the compromise is, test therefore, of a process.34 editorial greater degree than that tolerated Sulli position similarly is de compromise gloss van with of Tornillo and Columbia taking While account of Tornillo’s fective. Broadcasting. mandates, it falls short of There reject additional reason for required by Admit Sullivan and Tornillo. compromise position: developed tedly, compromise for the test accounts very in a different context from that argument advanced above that evidence of Investment, issue Baker here. v. F & F malice is from sources actual obtainable 783-84, supra, 470 F.2d at in its discussion discovery than compelled other editors’ Torre, Cir.), of Garland F.2d 545 compromise of mind state because the test denied, requires that be itself the evidence not oth L.Ed.2d appro indicates that the However, obtainable.35 erwise incre priate for compelled standard disclosure chilling engendered by effect mental journalists’ sources litigation in civil test, great while not as as in case of closely very the evidence is related to the discovery, significant. uninhibited is still plaintiff’s First, essence of case and that relationship may the editorial is not dynamics if its information obtainable from other chilled are to forced However, scrutiny. The sources.37 in Baker knowledge that a certain and Garland very of cases the different First number will be interests is itself to chill were at stake from likely discoverable those at issue In here. cases, process, because no can visualize those editor information sought to be relevancy disclosed, a court will when consider whether or not vital to the plain “high” case, or evidence to be or “other “direct” tiff’s was far removed from the edito this, Beyond wise unobtainable.” the com process. case, rial In this the plaintiffs do political propaganda” receive “communist had some form should be few. This does not mean request it of the Post held unconstitu- Office chilling effect in the editorial room “any likely tional because addressee to feel concomitantly would be reduced. The fear doing (emphasis added)); some inhibition” at so such and of the full scale utilization Talley California, litigation process permitted by (1960) (requirement that the compromise likely test to stifle the flow of names and addresses who those wrote ideas in the editorial room. sponsored and/or the distribution handbills held unconstitutional because it “would tend to Sullivan, 36. supra, See New York Times Co. v. restrict freedom to information and distribute 11 L.Ed.2d thereby expression” (emphasis freedom of add- ed)). 686. I do not make the distinction between the Branzburg Hayes, supra (rejecting Cf. ar- pamphlet- institutional and the individual journalists gument who had witnessed dissent, Judge suggests eer which Meskill they testify obliged crimes that were not post Rather, at 997. I draw is the distinction juries grand respect thereto). before properly between communicative functions Investment, supra, & F Baker v. F 470 F.2d at protected under the clause Free Press and ex- distinguished Second Circuit Branz- protected by Speech pression guaran- the Free thereby protected burg journalists tee. compelled litiga- disclosure of sources in civil tion. course, Of number of instances that the evidence is fact not otherwise obtainable in of Each privilege. dispute the area of periphery the relates discovery to not seek they already have conclusions, opinions, intentions, That Lando’s process. editorial or notes, to the done, Judge Kaufman concerning conversations people as Chief or leads to testimony deposition 2,903 pages pursued, tune of be the veracity persons inter- Rather, now plaintiffs 240 exhibits. viewed, and of and Lando’s reasons for the inclu- the edito- very heart of the seek to discover sion or exclusion of certain material. By do consist- they not This process. rial permitting into interrogation these areas of Broad- and Columbia ently Tornillo’s selection, editorial judiciary improperly process. the editorial casting’s solicitude upon just intrudes freedom of press as Tornillo, therefore, that would conclude I, legislature the Florida did in Tornillo. man- Broadcasting and Sullivan Columbia judicial Whether the is legisla- intrusion or process the editorial date full tive, the result is an unconstitutional sup- is true This be- compelled disclosure. from pression may, however, effect. There be their are con- as facts set soon cause as questions individual inappropriately selection; as soon as is editorial there text grouped within protected categories. I there scrutiny, to is process that open think it to the judge district effect; as there is soon suppression specific determine in instances that Lando effect, of the the freedom such engaged process was in the not of editorial evaporated. selection. With these caveats I concur in general question answer to certified IV and in the remand district court for a process editorial im- then when pass I determination of nature ques- of each is proper- disclosure compelled from munity dispute. tion in The editorial ly parameters invoked. definite concept become more will process MESKILL, Judge Circuit (dissenting): The cases. obvious context of future in the however, Jus- is the Chief starting point, action, I respectfully dissent. this An- choice in Tornillo : delineation tice’s thony “[t]he alleges Herbert that he has been broadcast, “the go into the of material” Lando, by Barry Wallace, libeled Mike and “con- made” on the duration decisions Monthly. C.B.S. and Atlantic Under New broadcast, “treatment of tent” Sullivan, York v. Times public issues and officials —whether (1964), he may 11 L.Ed.2d 686 exercise of unfair —constitute the fair or prevail proves if he that the defendants judgment.” U.S. control and editorial malice,” is, knowing acted with “actual Thus, Tornillo 94 S.Ct. at disregard of the truth. The or reckless processes that the mental mandates major lawsuit, therefore, purpose of this material,” dura- press regarding “choice subjective expose the defendants’ state tion, are to “content” of the broadcast beliefs, thoughts, opinions, of mind —their scrutiny.38 protected from intentions, motives and conclusions —to the Obviously, light judicial review. such a we are stage proceedings At this or deterrent effect. “chilling” review has determining capable not publication of lies supposed It is to. The fall within demands discouraged. discovery by The should be Judge agree I with the Chief privilege. categories plaintiff an editor’s state mind five of broad that at least activity will chill First Amendment plain- not grouped court into which district already being any greater within the extent than seemingly fall questions tiff’s Vidal, Buckley would be afforded the in a trial on v. tection the extent To testimony Compelled (S.D.N.Y.1970), trial on is inconsistent with the merits. F.R.D. compelled pretrial obviously privileged opinion, now declines dis- matters this court similarly privileged, covery because it. should to follow oppres- privilege, undue concerns this case question be answered need not While accompanying supra. 7-9 supporting privilege, such a merely held such a plaintiff carrying burden that that a judge district in a civil case did not right to ask what the be denied should abuse his discretion in denying a motion to was is defendant’s mental state remarkable compel a non-party journalist to disclose the my Judge its view Haight on face. was identity of a confidential news source quite right apply the normal rules of to identity where the of the source was of discovery to permit inquiry and into the questionable materiality to the plaintiff’s defendants’ mental state. cause of action and by could be obtained Chief Judge Kaufman finds a basis for other means. The explained: creating a new privilege editorial in “the Although conclude, is safe particu- it to privilege Branzburg established by [v. larly Supreme after the Court’s decision Hayes, 665, 2646, 408 U.S. 92 S.Ct. 33 Branzburg in . . . that law federal (1972)],” 227, L.Ed.2d 626 ante at in and recognize does not an absolute or condi- Supreme Court’s decisions Miami Herald journalist’s tional testimonial “privilege”, Publishing 241, v. Tornillo, Co. 418 94 U.S. neither does federal require law disclo- 2831, (1974) 41 L.Ed.2d S.Ct. 730 (right of sure of confidential sources in each and statute), C.B.S., reply Inc. v. Democrat- every case, criminal, both civil and Committee, ic National which the issue is raised. (editorial (1973) 36 772 L.Ed.2d adver- tising), deal generally which pro- with the 470 F.2d at 781. The decision stands for tections afforded “the exercise of editori- proposition, with which I wholehearted judgment.” control al 418 U.S. at ly agree, public interest reflected By at combining the Branz- in the First Amendment and in State burg privilege with the Tornillo and C.B.S. “newsman’s privilege” statutes is entitled protections editing, the Chief Judge cre- to be considered when a judge district exer ates an privilege. Judge Oakes cises discretion with regard to adopts a approach. somewhat different He matters. recognized The decision privi no C.B.S., too relies on Branzburg, Tornillo and lege. In view of Branzburg and Garland it goes and, he relying but further primarily could not have. See also Caldero v. Tribune speech given by on Mr. Justice Stewart at Co., Publishing 98 Idaho 562 P.2d School, the Yale Law extracts from free denied, - U.S. -, 98 54 S.Ct. press clause a doctrine appears which L.Ed.2d 291 Carey Hume, convert the fourth estate into an institution U.S.App.D.C. 492 F.2d cert. dis unlike an not unofficial fourth branch of missed, government. given This fourth branch is' Thus, to the extent special privilege presumably for the same the majority relies “the privilege reasons that the three official branches are by established Branzburg” and its elabora executive, given congressional judicial Baker, tion in today’s decision is without privileges. precedential foundation. approach find neither persuasive.

I Con- pro- Tornillo C.B.S. decisions also trary suggestions my colleagues, little support privilege vide for the created presently is no constitutional privilege there by majority. Those cases establish journalist’s of a against disclosure confiden- government when the tries control what sources, context, tial either in the criminal published or broadcast courts preferred position, into the we “intrusion then necessarily unconstitutional find an at U.S. place of editors.” the latter in a position. function subordinate supports the Neither decision interest public S.Ct. The First Amendment the First “proposition that unqualified having access to truth not neces- not intrusion into will tolerate sarily better served an institution than decisionmaking of editors.” function recognize an individual. I would such a J., concurring). (Oakes, Some Ante at only with greatest distinction reluc- intrusions, occur when as those which such tance, I certainly and would so do publish broadcast required single speech, given the basis of a even one prohibit- disagrees, are with which views Compare Mr. Justice Stewart. Saxbe v. intrusions, such as the intrusion ed. Other Co., Washington Post U.S. actions, permitted. are all inherent L.Ed.2d which the Branzburg Hayes, supra, generally See Court, per Stewart, Mr. Justice 681-85, 92 2646. The journalists special held that have no access against majority seeks intrusion to information not available chilling effect that protect editors generally. thought “judicial review the editor’s It makes no sense at all for us to con- at have on the processes,” ante will privilege designed struct a to eliminate or at judgment.” of editorial Id. “exercise expressive reduce a chill on activity which 980; (Oakes, J., concurring). 990-991 generated by the already libel action it- Sullivan, v. York Times how- New After however, I recognize, self. do that some of ever, thought judicial review of editor’s Herbert, discovery sought by particular- all about. is what a libel action is ly sought the conversations in the fourth of a libel cause of ac- existence of The mere categories assertedly objectiona- judg- five the exercise editorial tion chills exactly potential It is ante at has a inquiries, That is the whole idea. ble ment. Judge New York Times v. this kind chill that for what Oakes refers to as an “in- effect, chilling condones. at Sullivan cremental” ante 993- contemplated by over and above that based on the Judge argument Oakes’ New York Times v. Sullivan. dis- aspect of the “structural or institutional covery of communications between editors at ante guarantee,” Free Press journalists, distinguished as from sub- First, I doubt troubling for two reasons. states, jective mental well have the any- it be to add whether can considered “the inhibiting interchange effect of free Judge’s arguments based thing to Chief ideas within the room.” Ante news at Second, Tornillo and C.B.S. Branzburg, J., If the (Oakes, concurring). 980, 990 recognize any special, can before Court press were forced to all disclose ideas press as insti- position for the an preferred during are explored and theories that dis- tution, necessarily recognize must explora- then process, intellectual personal rights on the one between tinction discouraged tion itself would rights on the and institutional other. hand —without necessarily, probably, deterring or even ir- is a ‘fundamental “Freedom of ” journalism. responsible By discourag- thus encompasses “the right’ which personal testing, probing, “the creative verbal lonely pamphleteer who uses right of the hypotheses and discussion of and alterna- as well as paper mimeograph” or a carbon respon- are the sine qua tives which non of metropolitan publisher large that of “the 980; journalism,” ante sible see 993- photocomposition the latest who utilizes (Oakes, J., concurring), discovery supra, Branzburg Hayes, methods.” sought category the communications under Lovell quoting, 92 S.Ct. at U.S. at chilling four could have incremental ef- Griffin, into the York distinguish be- fect not built New Times v. If we L.Ed. operation personal rights Sullivan libel action. The tween institutional actually chill is rather conven- place the former incremental liberty is the same sort of chill tional in nature. It Raymond privileges: ALLEN, for most

that forms basis Samuel Hardrick and Lemmons, Petitioners, or the of ideas com- Melvin expression chill on in the context of munication of information lawful, special, confidential relation- certain COURT, COUNTY ULSTER COUNTY However, will ships. a moment’s reflection and New York Woodbourne Correction- sufficient to elimi- privilege reveal that a Facility, Woodbourne, York, al New Re- chill would have to be nate this incremental spondents. exceedingly All confidential com- broad. No. Docket 77-2059. munications, oral or written and whether made in the newsroom or else- whether United States of Appeals, Court where, It would have to covered. seems Second Circuit. really were privilege to me that if such Argued Sept. function, necessary protect the editorial Decided Nov. long we would have about it before heard Supreme now. Like the Court Branz-

burg, “unwilling I would be to embark the on a

judiciary long journey and difficult

such an uncertain destination.” 408 at 2668. The no

has shown enthusiasm for the creation of privileges, particularly

new constitutional here,

where, are they based on claims of

chilling depend imagina- effect that judges proof supplied

tions rather than parties. Compare Branzburg

Hayes, supra,

2646, with ex N.A.A.C.P. Alabama rel.

Patterson, (1958) (in support

L.Ed.2d its claim privilege against

of a disclosure of the iden-

tity membership, of its rank-and-file made

NAACP an “uncontroverted show-

ing” exposure past had in the led to membership).

harassment of its Judge Haight’s

I would affirm order com-

pelling discovery. notes 665, 707-08, 408 U.S. 33 L.Ed.2d 16-17 infra. (1972) (grand jury harassment impermissible). Concurring, Mr. Justice White noted: Regardless of beneficient-sounding how 26(b)(1). 9. Fed.R.Civ.P. purposes controlling be, press might “press” prefer power 10. That the broadcast media are is rea we applied “the as reason sonably g., through public well E. established. Cox Broadcast discussion” and remain in- Cohn, 469, 496-97, ing Corp. v. tensely skeptical 420 U.S. about those measures (1975); government S.Ct. Red Lion would allow itself insinuate Broadcasting FCC, 367, 394, Co. v. into the editorial rooms of this Nation’s press. L.Ed.2d United many risks of abuse are taken in premises some of [calculated ed higher Sys- preserve order values. Broadcasting of Columbia implications National Commit- tem, Inc. v. Democratic Id. at at 2097. 36 L.Ed.2d tee, regulation” surely “Governmental in- em- Broadcasting had (1973). Columbia as judicial legislative cludes as well regula- right of Amendment the First phasized tion; the First Amendment binds the courts independent editorial to make broadcasters just the other binds branches of holding decisions. programming government.13 Tornillo and Columbia Act nor Communications neither suggest and Broadcasting support, thus if requires broadcasters First they compel, the proposition do not that the advertisements, Chief paid accept First Amendment will not tolerate intrusion into decision-making function of edi- Burger stated: Justice tors,14 legislative judicial be it or action. worse, edi- editing is what better For

Notes

notes sion. See text very pro- here, same I would assume very per- review chilled as a result Branzburg Hayes, supra, or in the civil by New York Times Sullivan. context, mitted Torre, Garland v. (2d F.2d 545 attempt re- majority’s eliminate Cir.) (Stewart, J.) (libel The action), denied, cert. supportable that chill is neither duce U.S. 3 L.Ed.2d 231 logic. precedent nor Investment, Baker F & F 1972), denied, F.2d 778 Cir. in a libel action bears plaintiff actual heavy proving malice burden (1973), which is cited the majority as convincing proof. The notion clear and

Case Details

Case Name: Anthony Herbert v. Barry Lando, Mike Wallace, Columbia Broadcasting System, Inc., Atlantic Monthly Company, Barry Lando, Mike Wallace and Cbs Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 20, 1978

Citation: 568 F.2d 974

Docket Number: 28, Docket 77-7142

Court Abbreviation: 2d Cir.