*1 HERBERT v. LANDO et al.
No. 77-1105. Argued October 1978 Decided April 18, 1979 *2 J., delivered White, opinion Court, J., C. Burger, and BlacKMUN, Powell, RehNQUist, SteveNs, JJ., joined. Powell, J., filed a concurring opinion, post, p. 177. BreNNAN, J., opinion filed an dissenting part, post, p. 180. Stewart, J., post, p. 199, and Marshall, J., post, p. 202, dissenting filed opinions. Jonathan Lubell W. argued petitioner. cause With him on the Mary briefs was K. O’Melveny.
Floyd Abrams argued the respondents. cause for With him on the brief were Ringel, Dean Vittor, Kenneth M. Carle- ton G. Jr., Eldridge, and Richard G. Green.*
Mr. Justice White delivered the opinion of the Court. By virtue of the First and Fourteenth Amendments, neither the Federal nor a State *3 may any Government make law “abridging the freedom of speech, or press . . .”. question here is whether those Amendments should be con- to provide strued protection further press for the when sued for defamation than has hitherto been recognized. More specifically, we are urged to hold for the first time that when a member of press is alleged to have damaging circulated falsehoods and is sued for injury plaintiff's to the reputation, the plaintiff is barred from inquiring into the proc- of esses responsible those for the publication, though even the inquiry produce would evidence material to proof of a critical element of his cause action.
I Petitioner, Anthony Herbert, Army a retired officer who had extended wartime service Vietnam and who received *Briefs of amici urging curiae by affirmance filed were Arthur B. Hanson and Frank M. Northam for Newspaper the American Assn.; Publishers by and Paul, Dan Parker Thomson, D. Susan Werth, B. Finberg, Alan B. Corydon Dunham, B. Edgar Zingman, A. Schmidt, Richard M. Jr., Samuel Klein, E. J. Scharff, Laurent Robert C. Lobdell, Krasnow, Erwin G. Robert Sack, Gary D. Gerlach, G. Kritzer, Paul E. Strain, James A. and Robert Haydock for New York Times etCo. al. widespread media attention 1969-1970 when he accused his superior covering up reports officers of other atrocities and years February war crimes. Three on later, 1973, respond- Broadcasting System, ent Columbia Inc. (CBS), broadcast report on petitioner and his program accusations. The was produced respondent Barry edited Lando and was by respondent narrated Mike published Wallace. Lando later a related article in Monthly Atlantic magazine. Herbert then Lando, Wallace, CBS, sued Monthly Atlantic for defama- basing tion in Federal Court, jurisdiction diversity District citizenship. his complaint, Herbert alleged that program falsely and article maliciously him as portrayed a liar person and a who had charges made war-crimes explain his from relief command, requested and he substantial damages for injury reputation to his literary and to the value just a book he had published experiences. recounting his his
Although cause of action arose under New York State defamation law, Herbert conceded that because he was a “public figure” the First and Fourteenth pre Amendments recovery proof cluded respondents absent published had a damaging falsehood “with 'actual malice’—that with is, knowledge that it was false with disregard reckless whether it was false or not.” This holding was the New York Sullivan, Times Co. v. 254, 280 (1964), U. S.
respect to alleged libels of officials, and extended to “public figures” Butts, Curtis Publishing Co. v. *4 (1967).
130 1 Under rule, knowing absent falsehood, lia bility requires proof of reckless disregard truth, is, that that the defendant “in fact entertained serious doubts toas truth publication.” the of his St. Amant Thompson, 390 727, (1968). U. S. 731 “subjective Such probable awareness of falsity,” Welch, Gertz v. Inc., Robert 323, 335 n.
(1974), may be
if
found
“there are obvious reasons to doubt
prosecutions
subject
Criminal libel
are
to the same constitutional
limi
Louisiana,
tations. Garrison v.
the supra, at 732. Thompson, St. Amant require- of these light to his case prove In preparing order sought an length and deposed Herbert Lando at ments, response variety to which questions to a compel to answers pro- Amendment the First ground refused on the was those who of mind of into the state against inquiry tected process.2 and into the editorial or edit, produce, publish, (b), Proc. 26 of Fed. Rule Civ. Applying the standard subject to the any “relevant discovery of matter permits be if would either action” pending involved the matter lead to reasonably calculated “appears in evidence or admissible Court District discovery evidence,” the of admissible to mind of “central was because the defendant’s state ruled that obvious in the it was case, issue of malice importance” to the “entirely appropriate relevant and questions were any had reason Lando efforts to discover whether Herbert’s signifi- or, equally veracity sources, of certain of his doubt the another.” veracity of source over prefer one cant, re- 1977). The District Court (SDNY F. R. D. 387, it found privilege because claim of constitutional jected the permit cases Amendment or the relevant nothing in the First injured plaintiff’s weight require it to increase inquiries ob Lando to which Appeals summarized The Court jected as follows: regarding investigations during research and conclusions his
“1. Lando’s with pursued, to be in connection people pursued, or not or leads to article; Monthly segment Minutes’ and Atlantic ‘60 his imparted facts interviewees conclusions about "2. Lando’s interviewed; veracity respect persons mind to the state of did reach Lando testified he for conclusions where “3. basis events; veracity persons, information or concerning the conclusion in- matter to be about between Lando Wallace “4. Conversations publication; excluded from broadcast cluded or ex- to include or as manifested his decision “5. Lando’s intentions 1977). (CA2 568 F. 2d clude certain material.” *5 158 barriers creating by in effect proof
already heavy burden undetected and may go publication malicious “behind certified was then Id., 394. The case unpunished.” and the (b), § under 28 U. S. C. interlocutory appeal an to hear the case.3 agreed Appeals Court F. 2d 974 the District Court. panel
A reversed divided overlapping separate but judges, writing 1977). Two (CA2 lent sufficient First Amendment concluded opinions, from Lando protect processes to the protection with conclusions opinions, and inquiry thoughts, about his him about his conver- gathered by the material respect to The colleagues. his editorial sations with because certiorari granted We was held be absolute.
answer (1978). 435 U. S. importance of the issue involved. Appeals misconstrued the Court of have concluded We re- accordingly Fourteenth Amendments and the First and judgment. its verse
II liability was well estab- and criminal for defamation Civil was First Amendment in the common law when the lished intended indication that the Framers adopted, and there is no Times, prevail- York liability. Until New to abolish such utterances was ing jurisprudence not] [are “[l]ibelous speech . .” constitutionally protected area of . . within the Illinois, also (1952); see 250, Beauharnais v. 343 U. S. States, (1957); 476,
Roth v. United 354 U. S. 482-483 (1942) ; Hampshire, New 315 U. S. 571-572 Chaplinsky v. Olson, 707-708 ex rel.
Near v. Minnesota
U. S.
civil nor crimi-
accepted
view was that neither
interlocutory order,
Respondents’ petition
appeal from an
for leave to
appeal
stated the issue on
follows:
granted,
which was
given
protection of
“What effect should be
to the First Amendment
discovery
respect
judgment
pre-trial
press
to its exercise of editorial
Sullivan,
New York
Co.
governed
in a libel case
Times
(1964)?”
*6
nal liability for defamatory publications abridges freedom of
speech or freedom of the
press, and majority
jurisdictions
of
publishers
made
civilly
liable
for their defamatory publica-
regardless
tions
of their intent.4 New York Times and Butts
effected major
changes
the
applicable
standards
to civil
libel actions. Under these
public
cases
officials and
figures who
for
sue
prove
defamation
knowing
must
or reckless
falsehood in order
liability.
to establish
in Gertz
Later,
Welch,
Robert
Inc.,
These cases primarily rested on the conviction that the common law of libel gave protection insufficient First to the guarantees Amendment of speech freedom of and freedom of press and that to avoid self-censorship it was essential that liability for damages be specified conditioned on the showing culpable conduct publish those who falsehood. damaging 4See, g., e. (1938); Restatement of Pedrick, Torts Freedom of §580 the Press and the Law Translation, of Libel: The Modern Revised Q. 581, Corn. L. (1964); 583-584 Developments Defamation, in the Law— Harv. L. Rev. 902-910 Co., Peck v. Tribune S. U. 185, 189 (1909), Mr. Justice Holmes prevailing summarized the view of liability strict in the reviewing judgment course of a libel rendered in a diversity federal citizenship action: “There suggestion was some published portrait by the defendant mistake, and knowledge without plaintiff’s that was portrait or was purported what it to be. fact, one, But the if it was was no excuse. publication If the was libellous the defendant took the risk. As said was of such matters Mansfield, Lord publishes pub- ‘Whatever man he peril.' King lishes his Woodfall, Lofft 781. . . . The rea- plain. son is A libel is harmful on its If publish face. a man fit sees manifestly hurtful concerning statements an individual, without other justification than exists for an piece advertisement or a of news, the principles usual of tort liable, will make him if the statements are false only or are true of some one else.” liability damages however, proof, required
Given freedom nor speech neither freedom abridges defamation press. restric- First Amendment any suggest cases these Nor did obtain could plaintiff from which sources on the tion his cause elements critical prove necessary evidence progeny its Times York New contrary, theOn action. focus plaintiff liability proving made it essential To the defendant. of mind and state conduct *7 public officials defamer liable, alleged the publica- his suspect that to have reason know or must figures fault, kind of some proof cases In other false. is tion Inevitably, recovery. to essential perhaps,5 negligence and thoughts the foreclosed, completely liability to be unless to open be defamer would alleged the processes of editorial examination. although that, from our cases to conclude is also untenable
It form of in the could of mind be necessary state proof of the be could ultimate fact the from which circumstances objective the defend- directly from may inquire inferred, plaintiffs their suspect that reason they or had knew ants whether Butts, example, for inwas error. publication damaging been process had that the from the record is evident in- as well as that direct close examination and subjected to defendant prove the was relied evidence direct verdict damages actual malice. magazine had acted with had plaintiff's proof suggestion that any without was sustained areas.6 upon forbidden trenched responsibility of state laws. Gertz to be of fault was the The definition 323, Welch, Inc., U. S. Robert Harlan, writing plu 156-169, S., where Mr. Justice at U. See 388 preferred the he rality Court, the record under standard reviewed plaintiff. Chief public figures, upheld the verdict for the Mr.
apply record the “actual malice” independently reviewed under Justice Warren concurring opinion York Times and also concluded in his New standard of Reliance upon such state-of-mind evidence byis no means a recent development arising from New York Times similar cases. Rather, it is deeply rooted in the common-law rule, predating First Amendment, that a showing malice on the part of the permitted defendant plaintiffs to that the verdict should upheld. Id., at 168-170. The evidence relied on and opinions summarized both included substantial amounts of testi- mony that would fall within the editorial-process privilege as defined respondents. The record before the Court depositions included by the author of the defamatory article, an paid individual to assist the author in preparation, sports Saturday editor Evening Post, and both its managing editor and editor in chief. depositions These revealed the Saturday Evening Post’s motives publishing story (Record, O. T. 1966, No. pp. 706-717), {id., sources at 662-664, 719-720, 729), con- versations among the editors and author concerning the research and de- velopment of {id., the article 363-367, at 721-737), decisions and reasons relating to who should be interviewed and what should be investigated {id., at 666-667, 699-700, 734-736, 772-774), importance conclusions as to the veracity of sources and presented information {id., the article at 720, 732-735, 737, 771-772, 776), and conclusions about impact publishing the article would have on subject {id., 714^-716,770). Mr. Justice BreNNAN, writing for himself and Mr. Justice White, also *8 thought the evidence of record sufficient satisfy to the New York Times malice quite standard. It is unlikely that the Court would have arrived at the result it did had it believed inquiry into the editorial processes was constitutionally forbidden. The engaged Court in analysis similar of the record in reversing the judgments entered in companion a case Butts, Associated Press v. Walker, 388 S.,U. at 158-159; id., at 165 (Warren, J.,C. concurring); and Time, in Hill, Inc. v. 385 U. 374, (1967). 391-394 Hill, In the record included the edited drafts of the allegedly libelous article and an examina- tion and cross-examination of the author. During that examination, the explained writer in preparation detail the of the article, thoughts, his con- clusions, and beliefs regarding the material, line-by-line and a analysis of the article with explanations of how and why additions and deletions were made to the various drafts. in Butts, As the editorial process was the of focus much of the evidence, and direct inquiry was made into the state of mind of the media defendants. Yet the Court question raised no as to the propriety of proof. the 162 Butts, the Court damages.7 enhanced or punitive
recover damages punitive of award the substantial affirmed reck- or of “wanton showing upon were conditioned Georgia “ spite, will, ‘ill or negligence” culpable indifference or less 165-166. atS., 388 U. injure intent to an hatred and Chief Mr. nor id., 156-162,8 Harlan, at Justice Mr. Neither any ques- raised id,., 165-168, concurring, at Warren, Justice on such turn the award having propriety to the tion as evidence, underlying propriety the or as to showing 7 in the Developments (1969); 163 Related Torts Hanson, ¶ Libel and A. 2d, and Slander Libel 4, 938; Am. Jur. supra 50 Defamation, n. at Law— S., Libel Slander (1970); C. J. § 352§ award for the separate section provided in a originally The Restatement Torts Restatement defamations. damages for malicious punitive 1936) 13, : (Tent. Draft § pub- reputation caused another’s for harm to liable “One who is damages if the punitive liable for is also libel or slander lication of was falsity if it knowledge its or published with defamatory matter was solely falsity or its truth or reckless indifference published in pro- legally reputation or plaintiff’s other causing harm purpose tected interest.” recovery of explanation with the omitted was later provision The the Restatement rules in determined damages would punitive (Pro- of Torts general. damages § Restatement respect to with 1937). posed Final Draft supra, the entitlement Welch, Inc., limited v. Robert Gertz showing of upon a damages still awardable are such punitive damages, but knowing reckless falsehood. con jury had been instructed noted, the Harlan As Mr. Justice “ reliability, nature of ‘the damages to assess sidering punitive rejection acceptance or information, its the defendant’s sources of ” (em atS.,U. checking upon assertions.’ sources, its care in the instruc either nothing amiss added). Justice found phasis BreNNAN, jury under it. reached Mr. Justice tion or the result *9 analyzed id., 172-174, the instructions at case, dissenting in the Butts constitutionality turning the of question the as to differently raised no but damages upon as as direct well punitive compensatory or of either award of the defendant. going mental to the state circumstantial evidence of the state going evidence to plainly included direct which agents.9 responsible its publisher and mind of the Times cer- decided, was long before New York Furthermore, protect publisher developed had qualified privileges tain made with publication was liability for libel unless the from in gen- but ways, was defined numerous malice.10 Malice supra. 6, See n. Nicholls, (1913); v. Oyster, White 179-180 See Nalle History of the (1845); Plucknett, A Concise How. 286-292 T. Necessary (5th Belief 1956); Hallen, Character of Law 502 ed. Common Defamation, L. Rev. 865 Privilege in 25 Ill. for the Conditional surveyed the common Nicholls, supra, 290-291, the Court In White the as follows: law and summarized treat of doc- of the authorities which thus taken view
“We have particu- libel, those authorities and and have considered trines of slander ordinary they larly establish between reference to the distinction unwritten, been slander, and and those which have written instances peculiar said communications; character of which is styled privileged respect the law has created with exempt them from inferences which examination, partake that character. Our that do not those cases been, im- may has been seem to have called as extended intimately rights happi- with the subject connected portance of a most society. The quiet good individuals, it is with the order as ness conclusions, following which we us to the investigation has conducted every either applicable publication, 1. That the law thereto. propound as any charges upon imputes pictures, or by writing, printing, or which punishment, is calcu- him liable to or which that which renders person prima jade libel, infamous, ridiculous, odious, or or to make him lated publisher person con- the author and towards the implies malice in malice, therefore, in is made. Proof of cerning publication whom such required described, party complaining just can never be the cases justification, excuse, or extenu- proof publication itself: beyond shown, proceed 2. That must from the defendant. ation, can be if either privileged communications, be recognised as must description of cases rule, being upon exceptions to this and as founded some understood motive, moral, social, recognised obligation legal, or apparently prima fairly publication, led to the and therefore may presumed to have just implication general rule of from which relieves it from facie the law accordingly evidence, cases, rule of as to such is deduced. The *10 with acted defendant the showing a upon depended eral upon the hinged in turn showing This motive.11 improper the made, was publication the which with purpose or intent upon statement, or of his truth in the defendant belief the borne toward have might the defendant ill the will plaintiff.12 presumptions those to remove plaintiff impose it the changed to so far as parties, and the obligations and situations seeming
flowing
from
of malice
the existence
bring
to the defendant
home
require
him to
can
presumption
no
Beyond this extent
his
motive of
conduct.
the true
indulgence
sanctify the
be made
operate, much less
permitted to
be
legal
protection of
under the
wicked,
express,
however
malice, however
though
proved,
alleged
may be
that malice
conclude then
forms. We
any
body,
legislative
or
court, or
proceedings before
have existed
body, or other
court, legislative
although
authority,
such
tribunal or
other
redressing the
authority for
appropriate
may have been
tribunal,
any
express malice in
proof of
it; and that
represented
grievance
tribunal,
such
addressed to
proceeding,
or
publication, petition,
written
its char-
proceeding, libellous
petition, or
publication,
will render
thereof
publisher
subject
and
the author
actionable,
will
acter,
consequences of libel.”
to all
for
jurisdictions a defendant
supra,
some
Hallen,
at 866-867.
probable cause
or without
published negligently
he
privilege if
feited his
Nicholls,
Id.,
867; see White
was true.
the statement
to believe
supra, at 291.
supra
455:
2d,
See,
g., Am.
n.
e.
Jur.
§
many ways. As a
may be shown in
malice
of actual
“The existence
circumstantial, can
either direct or
any competent evidence,
rule,
general
surrounding
trans-
to,
the relevant circumstances
and all
resorted
be
threats,
including
they
remote,
not too
may
shown, provided
are
action
defendant,
subsequent
defamations,
statements of
subsequent
prior or
hostility
rivalry, will,
ill
between
indicating the
existence
circumstances
plaintiff’s
disregard of the
tending
a reckless
to show
parties, facts
usage
against
newspaper, custom
and,
rights,
in an action
the one under
of the nature of
of news items
respect to the treatment
may
had
the defendant
drawn
plaintiff
show
consideration.
of;
had
complained
that defendant
the words
time he uttered
pistol at the
defamatory
just prior
publica-
plaintiff
to the
tried to kiss and embrace
investigation
proper
had failed to make a
before
tion;
defendant
or that
question.
On
cross-examination
of the statement
publication
Courts have traditionally
any
admitted
direct or indirect
evidence relevant
to. the
of mind
state
of the defendant
and necessary to defeat a conditional privilege or enhance
*11
damages.13 The rules
applicable
are
the press
and to other
defendants
and it is evident
the courts
alike/14
across
the country have long been accepting evidence
to the
going
processes
editorial
of the media without
constitutional
encountering
object
ions.15
may
defendant
questioned
be
as to his intent
in making
publication.”
(Footnotes and
omitted.)
citations
13
g.,
E.
Odgers,
W.
Digest
A
of the Law of Libel and Slander *271-*288
(1st Am.
Bigelow
ed.
1881); 50
2d, supra
Am. Jur.
7, 455;
n.
53 C.
S.,
J.
§
supra
7,n.
213.
§
14Cf. Odgers, supra,
*271;
Holt,
F.
The Law of
(1st
Libel 57
Am. ed.
1818); Billet v.
Publishing
Times-Democrat
Co., 107
751,
La.
32
17
So.
15In scores of
cases,
libel
courts have addressed
general
issue of the
admissibility of evidence that would be excluded under the editorial-process
privilege asserted here and have affirmed the relevance
admissibility
the evidenoe on behalf of libel plaintiffs. See,
g.,
e.
Johnson Publishing Co.
v. Davis, 271
474,
Ala.
precautions taken
publishing);
before
City
Julian v.
Co.,
Kansas
Star
209
35,
(1908)
107
Mo.
S.
496
(testimony
W.
on thoughts and intentions at the
publication
time of
admissible); Paxton v. Woodward,
167
ess.
In each of these cases, Miami Herald Publishing Co. v.
Tornillo,
It a substan- effected in Tornillo silently Broadcasting System or plain- defamation rights preserved contraction the tial Gertz v. Tornillo and Sullivan, Butts, cases. like in tiffs day; and Welch, Inc., the same announced on Robert were overview in Gertz contained an opinion although the Court’s First the between relationship in developments the of recent no hint libel, was the law there Amendment and available evidence had narrowed the companion case to be inference is Quite opposite plaintiff. defamation Amend- First Gertz prior like opinion, it, since from the drawn of record the facts criticism libel recited without cases, ment had been mind of editor state of indicating that requiring proof in the Gertz opinion, Nor placed at issue. did defendant editor part on the of fault degree of some reckless damages at least punitive absent forbidding in First Amendment that the falsity, suggest of truth or disregard elements.17 these inquiry into critical foreclosed direct also 'government agency local, state, Tornillo, “no As stated in we — print and what newspaper in advance what it can tell a federal —can ” Pittsburgh Human Co. S., 255-256, quoting Press 418 U. at cannot.’ dissenting). (Stewart, J., Comm’n, (1973) 413 U. Relations (1976), Firestone, there years later, Time, U. S. 448 Inc. Two subject plaintiff evi- indication that substantial likewise no was Mr. Justice dentiary proving the defendant’s As restrictions fault. concurrence, the answer to Mr. Justice Stewart stated Powell question culpability “depends upon a consideration of all careful prior publication concerning Time’s actions relevant evidence Id., They suggested that on remand all 465-466. 'Milestones’ article.” at going considered, which included evidence of record evidence should id., 467-470, Time’s staff. See and n. 5. to the beliefs of *14 contrary to sum, the views of the Court of Appeals, an according absolute to the editorial a media in libel or defendant is not required, authorized, case presaged by prior our cases, substantially and would enhance the burden of proving malice, contrary expecta- actual to the York Times, Butts, tions of New and similar cases.
Ill
It
is nevertheless urged by respondents
the balance
that
struck in New York
Times should now be modified to
provide
further protections for
press
circulating
when
sued
erroneous information
reputation.
damaging to individual
It
is not uncommon or
suggest
the aban
improper,
course,
existing
donment, modification,
refinement of
constitutional
developments
and notable
in
Amendment
interpretation,
First
jurisprudence have evolved from
But
just such submissions.
Times,
York
in
since New
years
the 15
doctrine
announced
by
represented
major development
case,
widely perceived
essentially
which was
protective
press
freedoms,
repeatedly
appropriate
been
affirmed as the
has
First Amendment
applicable
brought
standard
libel actions
Publishing
Co.
Curtis
by public
public figures.
officials
Butts,
Thompson,
St. Amant v.
v.
388 U.
(1967);
Welch, Inc.,
Gertz v. Robert
727 (1968);
U. S.
We plaintiff’s reach beyond placing doctrine stitutional or reck- proving knowing relevant range of direct evidence alleged libel, elements publisher of an falsehood less case for as Herbert. The plaintiffs such are critical *15 clear and convincing, this modification is no means making it. accept and we decline to enough suggested privi- that place, plain the first it is would constitute a substantial
lege process for the editorial ability plaintiff interference with the of a defamation to estab- Times. New York required by lish the of malice ingredients as As respondents it, disregard would have the defendant’s reckless truth, element, critical could not be shown direct through into con- inquiry evidence thoughts, opinions, proved only by objective publisher, clusions of the but could be It evidence from which the ultimate fact could be inferred. may rarely plaintiffs proving that will be successful in aware- ness of falsehood from the mouth of the defendant but himself, the relevance of answers such District inquiries, to which the recognized Court Appeals and the Court of did can deny, not hardly be impenetrable doubted. erect to the To an barrier plaintiff’s use of such on his evidence side the case is a particularly matter some substance, when them- defendants prone good-faith selves are to assert their belief in the truth of their publications,18 plaintiffs and libel are required prove knowing or falsehood New “convincing clarity.” reckless York Sullivan, Times Co. S., at 285-286. U.
Furthermore, the outer privilege boundaries of the editorial urged now perceive. are difficult to opinions below did not state, and respondents do not explain, precisely when the process editorial begins and when it although ends. Moreover, we are told respondent willing testify Lando was as to what he “knew” and what he had “learned” from his interviews, opposed to what he “believed,” it is at all not why clear the suggested editorial privilege would not cover knowledge as well as belief veracity published about
18See, g., e. 15, supra, cases collected in n. in which media defend asserted, ants upheld, right courts present type of evidence at trial good in order to establish faith and lack of malice.
reports.19 It is worth here noting as asserted by respondents would inquiry also immunize from the internal communications during process the editorial occurring place thus beyond reach participants what the defendant learned or knew as collegiate the result of such conversations exchanges. If damaging colleagues admissions are to be barred from would evidence, reporter’s admissions made parties to third in the participating also be immune from inquiry? We thus have little doubt *16 Herbert and other in- plaintiffs important defamation have terests at stake the creation of opposing the asserted privilege.
Nevertheless, by we are urged respondents to override these important interests because disclosure of editorial requiring reporter’s conversations and of a about the verac conclusions ity of the he gathered material has will intolerable have an chilling effect on the decision- process and editorial But if making. the claimed inhibition flows from fear damages liability for publishing knowing or falsehoods, reckless what New York those effects Times precisely are and other cases have held to be Spread consistent with the First Amendment. ing false information in and of Amend itself carries no First “ ment credentials. is no constitutional in false value [T]here Welch, Inc., statements of fact.” Gertz Robert supra, at 340.
Realistically, however, some error is and the inevitable; separating difficulties of fact from fiction convinced the Court Times, Butts, in New York Gertz, and similar cases to limit suggested argument It was also at oral that the would cover questions “why” form, in the “who,” “what,” “when,” but not of the type. “where” Arg. Tr. of Oral 32-34. But it is from Lando’s evident questions deposition “why” soliciting relating answers the editorial to process answered, g., Deposition 21, 7; 1892, 18, were e. Tr. of L. L. that he to g., refused answer others that did category, not fall into this e. id., 20; 774, 5; 12; 880, 5; 1488, L. L. L. 3; 1893, 11; L. L. L. Arg. see Tr. of Oral 46. culpability present degree some
liability to instances where self-censorship of undue the risk eliminate in order to publish who Those of truthful material. suppression how- culpability, requisite with the defamatory falsehoods only com- being not the aim subject liability, are ever, unprotected publication deter injury but also to pensate for Per- reputation. individual injury to threatening material their cases prove Herbert such as plaintiffs mitting with the consistent indirect evidence direct as well results proof If such decisions. prior our balance struck publication discourages in turn liability damages which false, probably or to be false information known erroneous not does contemplate and cases this is no more than what our press. speech freedom of abridge either conclusions threatens if into editorial course, inquiry Of strongly sus known or only of information suppression information, also of truthful pected to be unreliable but our cases said, But have different. as we quite issue would be of the editorial necessarily contemplate examination falsehood, and necessary probable prove awareness pub truthful does not stifle proof if indirect of this element *17 Amendment, the First and is consistent with lication direct do how concede, to we not understand respondents seem would be substan to the ultimate issue inquiry respect will lead to tially suspect.20 Perhaps such examination more this it, found without but liability would not have been in these instances not the determinations suggest does protected suppression lead to the be inaccurate and will will actors, inquiry from the contrary, information. On the direct might to refute inferences that opportunity which affords the evidence, suggests otherwise be drawn from circumstantial question respondents answering is, by The kind of seek to their avoid admission, Arg. own easiest to answer. See Tr. of Oral 31: “[T]hey questions dif- set-up are for our side. . . . are not [T]hese questions to answer.” ficult all, placing
that more accurate will be obtained results rather than decisionmaker. part, the evidence before the contradictory Suppose, example, reporter for that a has two reports damaging, about the false plaintiff, one of which is and only issue published. the false one is resolving the publication false, whether the suspected was known or to be only inquiry common sense from the to believe to author, opportunity with an to will contribute explain, accuracy. If the exoner- publication false but there is an ating explanation, surely testify the defendant will Why inquire effect.21 plaintiff permitted should not the before trial? if had publisher On the other fact hand, no published serious doubts about but accuracy, nevertheless, self-censorship undue from the rele- permitting will result Only inquiry. knowing vant or reckless error will be discour- aged; and unless there is be an absolute First Amendment injury by to inflict or knowing conduct, reckless respondents will not be suggest, do constitutional values threatened.
It urged among reporters is also that frank discussion dampened editors will be sound en- judgment editorial dangered if such exchanges, written, subject oral are inquiry by plaintiffs.22 defamation do not doubt We relationship direct between consultation and discussion on the one hand and sound decisions on the but whether or other; liability not there is press has an obvious injury, in avoiding interest infliction harm publication presents Often it is the libel defendant who first at trial direct evidence about good in order to establish faith and lack of Sullivan, g., malice. That was true in New York Times Co. e. see, Record, 1963, 39, p. many O. T. No. and in of the cases cited in n. supra. 22 They invoke Nixon, our observation in United States *18 (1974): expect public who dissemination “[T]hose of their re may temper marks well candor with a appearances concern for and for their own interests to the decisionmaking detriment of the process.” of false information, and it is not to expect unreasonable the media to procedures invoke whatever may practicable and useful to that end. given Moreover, exposure to liabil- ity when there is or knowing reckless there error, is even more reason to resort to prepublication such precautions, a frank interchange of fact opinion. and Accordingly, we find it difficult to believe that procedures error-avoiding will be terminated or simply stifled there because liability for cul- pable error and because the process editorial will itself be examined in tiny percentage of instances which error is claimed litigation and ensues. Nor is there sound reason to believe that editorial exchanges and the process editorial are subject so to distortion and to such recurring misunder- standing they should be immune from examination in order avoid erroneous judgments in defamation suits. The evidentiary burden Herbert must carry to prove at least reck- disregard less for the truth is substantial indeed, and we are unconvinced that his chances of winning an undeserved verdict are such an inquiry into what Lando learned or during said process editorial must be foreclosed.
This is not to say that the editorial discussions or exchanges have no protection constitutional from casual inquiry. There is no law that subjects the private official examination merely to satisfy curiosity or to serve general some end such as interest; if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No problem such exists here, however, where there specific ais claim injury arising publication from a that is alleged to have been knowingly or recklessly false.23 23Mr. Justice BrenNAN would extend protection more constitutional editorial discussion excusing questions answers to relevant about
in-house conversations until plaintiff prima made has facie ease falsity. If suggestion contemplates a trial, bifurcated falsity first on and then on culpability injury, we subject decline to libel trials to such complications burdensome delay. intolerable On hand, the other
Evidentiary privileges in litigation are not favored,24 even those rooted in the Constitution give must way proper circumstances. The President, for example, does not have an absolute privilege against disclosure materials subpoenaed for a judicial proceeding. United States Nixon, 683 (1974). In so holding, we found that although the President has a powerful interest in confidentiality com- munications between himself and his advisers, that interest yield must to a specific demonstrated need for evidence. As we stated, referring to existing limited privileges against disclosure, “[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Id., at 710. With these considerations in mind, we conclude that
present construction of the First Amendment should not be by modified creating the evidentiary privilege respondents now urge.
IV Although defamation litigation, including against suits press, an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out prima facie case by proving the damaging publication. Truth if, as seems likely, more prima showing facie does contemplate not minitrial on falsity, no resolution conflicting evidence issue, on this but only a credible assertion the plaintiff, it requirement smacks of a could be satisfied an affidavit or a simple verification of the pleadings. We are reluctant to imbed this formalism in the Constitution. 24See Elkins v. States, United 364 U. (1960) (Frankfurter, J., dissenting): “Limitations are properly placed upon operation general principle no [of testimonial privilege] only to the very limited extent that permitting a testify refusal to or excluding relevant evidence has a good transcending normally predominant principle of utilizing all rational means ascertaining truth.” See also 8 J. Wigmore, Evidence (MeNaughton §2192 1961); rev. 4 The Works of Jeremy (J. Bentham 321 Bowring 1843). ed. malice were motive, Intent, were defenses. privilege qualified counter except necessarily involved burden plaintiff’s damages. exemplary prove toor case, every every almost considerably expanded. now *20 a prove and the on must focus plaintiff the culpability of degree by some attended publication false now consequence If plaintiffs publisher. of the part the it and surprising; not it would discovery, more resort kind this burdens other and the costs follow would more troublesome much become and escalate would litigation the suggested is It and defendants. plaintiffs for both it if burdens these from protection constitutional needs press system ain indispensable task,25 its perform is to ours. such as inquiry foreclosing direct a
Creating constitutional prob- this not cure however, would process, the editorial into liability immunity from Only complete press. lem for has Court result, and this would effect for defamation construction be an untenable this to found regularly litigation mushrooming Furthermore, Amendment. First peculiar are not discovery, pretrial due much costs, ex- repeated been There have area. slander to the libel and discovery, uncontrolled and undue of concern about pressions But chorus.26 joined have from Court and voices intimidate defending will lawsuits large costs urged that It newspapers smaller particularly where self-censorship, press and lead to alone deposition Lando’s It is noted that involved. are and broadcasters containing year filled volumes intermittently and for over continued expenses out-of-pocket As well pages 240 exhibits. nearly 3,000 and his fees, Lando and legal there were substantial deposition, significant reporting for gathering and from news were diverted associates of time. amount Stores, 723, 740-741 Drug Stamps Manor Chip Blue v. (1979) (Pow EEOC, Industries, S. v. U. (1975); ACF Inc. JJ., from denial Rehnquist, dissenting ell, J., joined Stewart Systematic A D.: Need Agenda for 2000 A. certiorari); Burger: 83, 95-96 Conference, D. 70 F. R. Pound Address Anticipation, until and unless there are major changes present in the Rules of Civil Procedure, reliance be had on must what in fact and in law are ample powers of prevent the district judge abuse.
The Court has more than once deposition- declared that the discovery rules are to be accorded broad and liberal treat ment to effect their purpose of adequately informing the litigants civil trials. Holder, Schlagenhauf 379 U. S.
114-115 (1964); Taylor, Hickman 329 U. 495, 501, (1947). But the discovery like provisions, all of the Federal Rules of Civil Procedure, are subject to injunction of Rule 1 that they “be construed to secure the just, speedy, inexpensive determination of every action.” (Emphasis added.) To this end, the requirement of (b) Rule 26 (1) the material sought discovery be “relevant” should be firmly applied, and the district courts should neglect their *21 power to restrict discovery “justice where requires [protection a party person or for] from annoyance, embarrassment, oppres or sion, undue burden or expense . . 26 (c). . Rule .” With this authority at hand, judges should not to exercise hesitate appropriate control over discovery the process.
Whether, as a matter, nonconstitutional however, the trial judge properly applied the rules of discovery was not within the boundaries of question the certified under 28 U. S. C. (b) § 1292 and accordingly is not before judgment us.27 The of the Court of Appeals is reversed. So ordered.
Me. Justice Powell, concurring.
I join opinion the of the Court, and write to separately elaborate what in I said Part do my IV. not see obser- (1976). The Committee on Rules of Practice and of the Ju- Procedure dicial Conference of the proposed United States has to the amendments Federal Rules of Civil designed Procedure to problem. ameliorate this Preliminary Draft Proposed to the Amendments Federal Rules Civil Procedure 27Mr. Justice Stewart would remand to have the trial court rule once again on the questions. relevance of disputed the opinion the But the rather, opinion; the Court’s inconsistent being as vations supervising that, point the additional emphasize I write to court a district figure, suit libel discovery as well as interests Amendment First consider duty to has a plaintiff. interests the private the pro- constitutional explicit the that
I Court agree with the kind, of this case in a rights Amendment of First tection Sullivan, S.U. Times Co. York by New articulated evidentiary privi- an create expanded should not (1964), proceeding, civil in a discovery pretrial respect to With lege. enjoys judgment” of editorial the “exercise protection whatever Amendment First the protection on the entirely depends published namely, judgment, of this product accords respondents clear, makes Court As the speech.1 This speech. safeguard unnecessary published claim is the Court judgment requires reversal holding “the trial that whether however, notes, Appeals. Court nonconsti- discovery,” as a rules of applied properly judge certified question under the not before us matter, tutional I assume, ante, 177. (b), § 28 U. C. pursuant District continue and litigation will that therefore, questions interrogatories review will Court to answer. declined respondents Times New York correctly understood judge he reveals
trial
reckless
knowing
falsehood
prove
required
either
Herbert
Gertz
mind, the
elements
proper
constitutional
disregard for truth. With
clearly relevant and
at issue were
questions
judge
on to rule
went
*22
answering them. We
from
Lando
excused
constitutional
that no
contrary to
but,
no constitutional error
committed
judge
the
hold that
rulings on
his
inappropriate
to review
Stewart,
it
find
Mr. Justice
relevancy.
Publishing
Tornillo, 418 U. S.
Co. v.
Herald
Miami
decisions in
1 Our
Broadcasting System, Inc. v. Democratic Na
(1974),
Columbia
241
and
support
for the
(1973),
no
provide
Committee,
179 Earlier in from certiorari Term, dissenting this the denial of Industries, ACF EEOC, Inc. I in had (1979), S.U. discovery upon widespread occasion abuse of to comment delay in prime expense that has become a cause of and civil Id., a just few litigation. Term, the 1946 at 1086-1088. At Procedure, of Civil years adoption after of the Federal Rules be rules are to deposition-discovery Court stated “that Taylor, Hickman accorded a broad liberal treatment.” under- (1947). bar and trial courts 495, years passed, have standably responded affirmatively. As the devel- highly discovery techniques and tactics have become to the dis- infrequently exploited oped litigation art —one not recognizes, now the situa- justice. As Court advantage of “concern there is serious point where tion has reached Ante, 176.2 discovery.” about undue uncontrolled District discovery by the given view of attention the evident here was be said that Judge case, in this it cannot and un- protracted certainly was “uncontrolled.” But concerned.3 expensive for all doubtedly was inquiry enforcement present the initial Under Rules standard Whatever discovery is one of relevance. any request discovery when types cases, in other may appropriate rights Amendment impinges on First arguably demand required of relevance degree should measure district court parties needs private of both the light has Court hand, as this the one implicated. On concerns Amendment First the solicitude recognized, repeatedly for the concern reflects opinions evidenced our rights Force, 74 Follow-Up Task ABA, Pound Conference Report of See Recom (1976); Erickson, The Pound Conference 159, 191-192 F. R. D. Twenty-First Cen System in the Blueprint A for the Justice mendations: Bell, Conference (1978); The Pound 277, tury, 76 F. R. D. 288-290 Justice, Department of Response from the United States Follow-Up: A Long Overdue, 33 Record (1978); Powell, D. F. R. Reforms — A. 461-463 of N. Y. C. B. ante, at 176 n. See 25. *23 180. commen- in a flow news interest free public
important Bellotti, Boston v. 435 U. Bank First National tary. See Co., Washington Post (1978); Saxbe 781-783 the other dissenting). J., On (1974) (Powell, 843, 862-863 according in interest significant also a hand, there may genuinely discovery matters as be of such litigants civil weighing the Although their lawsuit. relevant cus- it is function hardly science, an exact interests is these areas of in other this and judges out tomarily carried heavy judges despite trial task, performing law. — recognizing carry increasingly now them most of burdens —are Industries, supervision.” AFC judicial for “pressing need 1087,4 EEOC, supra, at Inc. on must be the focus today emphasizes that
The Court 1 must Proc. of Fed. Rule Civ. injunction that the relevance, neglect their courts should not “district be and that heeded, toor justice in interest of discovery” restrict power to Ante, expense. at or from undue burden parties protect join I the Court’s (c). Proc. Rule Civ. 177; see Fed. admoni- heeding in these understanding my on opinion protected the values court must ensure the district tions, no constitutional though entitled to Amendment, by the First in strik- carefully weighed kind, case of this are ing proper balance. part. dissenting Brennan, Justice
Me. They media. of the news representatives are Respondents Lieu- by petitioner, brought in a libel action are defendants court instances, might appropriate be district In some discovery demand, hope that resolution delay enforcing a discovery developments in summary judgment other through issues pertinent to note It is the material demanded. might reduce the need for any summary sought judgment issue not respondents here had discovery discovery argued that should opposed, and was have the time liability depends are resolved. other issues on postponed until *24 Anthony (U. tenant Colonel Herbert who Army, Ret.), concededly a figure. today rejects respond- The Court ents’ discovery claim privilege” that an “editorial shields from information respondents’ that would reveal processes. I agree with the Court that no such factual insulates matters that may sought be during a discovery, and that such privilege should not respondents’ processes.” shield “mental 568 F. 2d (CA2 1977) J.). I (Oakes, hold, would however, First requires predecisional Amendment communication among protected editors an editorial privilege, but that this privilege yield if public-figure must a plaintiff is able to prima demonstrate to the facie satisfaction of a judge trial publication question constitutes defamatory falsehood.
I The Appeals Court'of below presented stated that “the issue by this case is whether, and to what inquiry into the extent, editorial process, during conducted discovery New York Times Sullivan type libel action, impermissibly burdens the reporters work of Id., and broadcasters.” 979 (Kaufman, J.).C. grouped court the discovery inquiries objected to by respondents categories: into five
“1. Lando’s conclusions during his research and investi-
gations regarding people or leads to be pursued, not to be pursued, connection with Min- the '60 segment utes’ and the Atlantic Monthly article; “2. Lando’s conclusions about imparted by facts inter-
viewees and his state of mind respect to the veracity persons interviewed; “3. The basis for conclusions where Lando testified that
he did reach a conclusion concerning veracity of persons, information or events;
“4. Conversations between Lando and Wallace about
matter to be included or excluded from the broadcast publication; and by his decision
“5. Lando’s intentions as manifested Id., at 983. include or certain material.” exclude Appeals concluded: The Court of journal-
“If selective disclosure of how a we were allow print or not to ist formulated his on what judgments print, judicial we would be review condoning an thought processes. inquiry, editor’s which on Such virtually boundless, endangers its face would be consti- tutionally protected unquestionably puts realm, *25 interchange freeze on the free ideas within news- Id., room.” at 980. Appeals categories
The held that all five of information Court sought by petitioner privilege. were shielded an editorial
The holding of the a Appeals presents Court of novel and question (b)(1) difficult of law. Federal 26 Rule Proc. Civ. provides: may discovery any “Parties obtain regarding matter, not privileged, which to subject is relevant matter in in pending volved action (Emphasis supplied.) . . .”. diversity The instant is brought case under 28 jurisdiction, U. 1332 “in (a), § S. C. Rule 501 states Fed. Evid. civil with to an of a proceedings, respect actions element or which supplies claim defense State law the rule decision, privilege person of a witness . shall be . . [or] New determined Although in accordance State law.” Sullivan, York Times Co. v. placed 376 254 con (1964), U. S. stitutional limits on state libel it did not itself a claims, create federal cause of in action for libel. The “rule decision” defined state is conten case, therefore, There no law. applicable encompasses law tion, however, state edi an privilege. Thus if apply torial we were to create and such constitutionally a it would have to privilege, grounded, as, be Nixon, United States v. for is executive example, privilege, see privilege (1974), against self-incrimination. Arndstein, McCarthy v. exist- See U. S. The urged before before been privilege ence of such a has never this Court. pre approached premise from the
This case must be liberal normally “accorded a broad and discovery is to be trial Taylor, (1947), Hickman v. U. S. treatment/’ judicial evidentiary privileges generally creation of and that recognized discouraged. past, however, have in the be We and rela evidentiary protect in order to “interests privileges im social tionships . . . are as of sufficient regarded of facts incidental of sources portance justify some sacrifice McCor E. justice.” Cleary, needed in the administration Hickman 1972). example, For (2d mick Evidence 152 ed. attorneys’ Taylor, supra, qualified privilege created privilege, such products part work without because, demoralizing.” would be legal profession effect on the “[t]he States, United Roviaro Similarly, 329 U. at 511. S., privilege” “informer’s qualified recognized U. S. 53 (1957), interest protection for “the furtherance and Id., at 59. effective law enforcement.” crea- is whether therefore, inquiry pursued, purposes further of an would so tion scheme as embodied goals the constitutional *26 of incidental sacrifice” justify “some Amendment, First as inflex- need not reach an inquiry This evidentiary material. may privilege an editorial justifications for ible result: The appropriate in which, support only qualified well “the administra- of yield requirements to the instances, must justice.” tion of
II century ago half us over a Brandéis reminded Mr. Justice liberty . valued independence our . . who won that “[t]hose Whitney California, a means.”1 as an end and as both community is the human end because speech is itself an 1 Freedom of speech is therefore through speech; freedom of defined large in measure democracy in a dignity. particularly is so This to individual intrinsic In its instru opinion). (1927) (concurring S.U. foster the to- the Amendment serves First aspect,
mental true several This is self-government. democratic of values imposing from the state First Amendment bars senses. The prohibits of truth.2 It vision upon its citizens an authoritative processes communicative interfering from the the state equal accorded autonomy individual is own, in the of each like our -which California, in Cohen v. stated respect. As the Court and incommensurate (1971): 15, 24 powerful in a expression medicine right of is “The constitutional free designed intended to society populous diverse and as ours. It discussion, put- governmental from the arena remove restraints largely into the hands ting shall be the decision as to what views voiced ultimately pro- hope us, in that use of such freedom will of each of citizenry belief perfect polity and in the capable more and more duce a premise of individual approach comport with the that no other would system dignity upon political rests.” and choice which our Respondents arguments for properly do not rest their an editorial self-expression. grounded, an edi- privilege on the value of individual So privilege might stop shielding speech. not all short of torial Chafee, As in 1946: Jr., Professor Zeehariah stated protects First “The Amendment a social interest in the attainment ... truth, country may only adopt the wisest so that course carry way.
action but it out in the . Truth be sifted wisest . . can out only government vigorously constantly if from falsehood cross- Speech examined . Free . . the United States 33. gave
Mr. Holmes Justice this social value a broader and more theoretical formulation: expression opinions perfectly
“Persecution me seems to you logical. your your If no premises power have doubt of and want your you naturally a certain express your result with all heart wishes in away sweep opposition. law and all . . . But when men realized have upset many faiths, they may that time has fighting come to believe even they very more than believe the foundations of their own conduct that good ultimate desired is better reached free trade in ideas—that the power best test thought get of truth is the accepted itself competition market, only ground upon that truth is the safely their wishes can any be carried theory out. That at rate is *27 our experiment, Constitution. It is an experiment. life is all an . . . experiment part system While that of our I think that we should be
185 exercise prepare its citizens exercise and through shields And the Amendment self-government.3 rights their of abuses.4 expose its or censure state those who would expression opinions of against eternally vigilant attempts to check they so immi- death, unless fraught be we loathe and believe to pur- pressing nently lawful and immediate interference with the threaten country.” required to save the poses of the that an immediate cheek is law (1919) (dissenting opinion). States, 616, 630 Abrams v. United 250 U. S. (1969). Broadcasting FCC, Red Co. v. U. 390 See Lion as, any point, decide an issue far at the citizens who are to “Just so acquaintance opinion doubt or disbelief are denied with information or or issue, just or so far the result must criticism which is relevant to that mutila good. It is that ill-considered, planning general for the ill-balanced against First community which the thinking tion of of principle of the freedom Amendment to the Constitution is directed. The self-government. speech springs program of of from the necessities is a deduc It is of Nature of Reason in the abstract. It not a Law or shall be de agreement from the basic American issues tion The Meiklejohn, Freedom: suffrage.” Political cided universal A. People (1965). Powers of the Constitutional Virginia Pharmacy Virginia Consumer Citizens See State Board Council, (1976); Brennan, Supreme Court and the The Meiklejohn Interpretation Amendment, Rev. of the First 79 Harv. L. Theory, Am. Blasi, Checking See in First Value Amendment defending Erskine, Bar Found. Thomas Research J. 521. Lord while eloquent libel, compact Paine in his trial for seditious offered a state position: ment of this
“Gentlemen, insisted, great length, upon origin govern- I have at ments, you upon and detailed the authorities which have heard the sub- ject, only I it support, because consider to be not but the an essential very liberty press. right his foundation If Burke be Mr. principles my of government, press, I admit that the sense of its free- dom, ought free, all; any not to be nor free in and that all sense people upon subjects specula- government, addresses to the and all amendment, illegal tions of soever, what kind or nature are and crimi- nal; people have, possible delegated since if the re-call, with out all their authorities, they jurisdiction act, have no to think therefore none subjects; upon arraign govern- write such and would be a libel to *28 can together, These various senses can sometimes weave in letter First seen the addressed the Continental listing rights the inhabitants of “a Congress Quebec, to Ministry by force of profligate [English] striving, are now to from us”: arms, ravish
“The right mention, regards last we shall the freedom of the press. importance The of this besides consists, the advancement of and arts in truth, science, morality, in general, its diffusion of liberal on the ad- sentiments Government, ready ministration of its communication of thoughts between subjects, consequential promo- and its tion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” any acts, ment or jurisdiction of its before those who have no to cor- rect them. legal But on the other hand argument ... no can shake press my freedom of the it, supported my sense of if I am doc- concerning great trines right people, unalienable of the reform to change governments. their liberty It is press because the of the resolves great issue, itself into this every country has been in the.last liberty subjects have been power. able to wrest from Other liber- ties governments, are held under liberty but opinion keeps govern- ments subjection themselves in due Speeches their duties.” 1 of Lord (J. High 1876). Erskine 524-525 ed. position This predicated is often upon adversity a natural between the government press. and the See Bickel, Morality A. of Consent 80-88 Alabama, Mills v. U. (1966), for example, we stated: press designed “[T]he serves and was powerful to serve as a antidote to any power by abuses of governmental officials and as a constitutionally chosen keeping means for officials elected the people responsible to all people they whom were selected Suppression to serve. right of the press praise governmental or criticize agents and to clamor and contend against for or change . . . very muzzles one of agencies Framers of our Constitution thoughtfully deliberately selected to improve society our keep it free.”
5 1 Journals of the Congress Continental (1774) (W. 1904): Ford ed. Amendment the First the various senses which
Although contexts demand in different serves democratic values will common they share the emphasis development, distinct the attainment of social characteristic of instrumental being aspect great ends. It is a mistake to understand *29 rights.6 solely through filter of individual First Amendment the litigant to meaning permitting This is the of our cases under challenge constitutionality the of a statute as overbroad privileged if “prohibits the First Amendment the statute or not the record rights exercises of First whether Amendment con petitioner engaged privileged discloses the in has Button, duct.” NAACP 415, (1963). 371 432 Our v. U. S. reasoning is that First Amendment freedoms “are delicate id., vulnerable, supremely precious society,” as well as our at 433, standing litigant given should therefore to general assert this more social interest in the “vindication Pfister, Dombrowski v. of freedom expression.” of 380 U. S. Alabama, Thornhill 479, (1965). 88, v. 310 U. See S. 97-98 malice” meaning It is the of the “actual also Sullivan, York set forth in New Times Co. v. standard though may U. at Even information have S., 279-280. false Thompson, St. Amant no intrinsic First Amendment worth, particular 727, (1968), though 390 U. and even S. may published information, defendant his freedom have false expression is protected nevertheless the absence actual the publication malice “to insure ascertainment and because, agita speech rights. is useless to define free talk about “[I]t right government speak, tor asserts his constitutional to the asserts its right wage constitutional war. The result is a deadlock. only boundary
“The true be fixed line of the Amendment can First Congress speech when principle and the court's realize that the on which classified as each other balancing against lawful or unlawful involves the very important two interests, public safety social and in search supra Chafee, 31, truth.” n. at 35. First is essential affairs, it public about truth
of the as as well publications erroneous protect some Amendment Ibid.7 ones.” true First by served values of the social recognition
In right “the referred to have our decisions Amendment, esthetic, political, social, receive suitable access public Red Lion Broadcast- experiences,” other ideas and moral, and sup- (emphasis FCC, (1969) 367, 390 395 U. S. ing Co. v. information circulation of and-to “the plied), guaranties.” of the constitutional entitled in virtue (1936) Co., 297 U. Press Grosjean American Hill, Time, Inc. v. (emphasis supplied). Amendment First guarantees we stated that
(1967), benefit much for the press not for the benefit so “are press assures A freedom of broadly all defined of us. society.” system open an political our the maintenance of Id., 389. *30 must be by respondents privilege claimed
The editorial would its creation carefully analyzed to determine whether recognized by our these social values significantly further analysis to note decisions. it is relevant prior this media, communications respondents representatives are of the Gertz Robert media,” the v. “press and that and broadcast 7 my analogous has, strong protest, In an manner the Court over analyzed exclusionary social permitting the rule as a defendant to assert rights: personal interests that do not reduce to his primary justification exclusionary
“The for the rule then is the deter- police rights. rence of Amendment Post- conduct that violates Fourth Mapp personal constitu- decisions have established that the rule is not a right. injury privacy tional It is not calculated to the to the redress seizure, any ‘[reparation the victim of the search or comes too late.’ (1965). Walker, Instead, Linkletter v. “ 381 618, U. S. 637 judicially remedy designed rule safeguard 'the is a created Fourth rights generally through Amendment its deterrent effect . . . .’ United Calandra, 338, (1974)].” Powell, States v. U. S. 348 Stone v. 428 [414 465, U. S. 486
189 Welch, Inc., a domi played 323, (1974),8 418 U. S. have function,” serving nant and “informative essential role the Branzburg Hayes, (1972), protected v. 665, 408 U. S. special press emphasize First Amendment. “The cases institution constitutionally recognized and role criticism, and informing educating public, offering First National providing forum for discussion and debate.” “The Bellotti, Boston 765, (1978).9 Bank U. v. S. newspapers, magazines journals country, of the other light say, shed, safe to have shed and continue to more in public any nation than other business affairs of the strumentality public opinion informed publicity; and since upon potent the most of all restraints misgovernment, a free suppression publicity of the abridgement afforded press cannot be than concern.” regarded grave otherwise Co., Grosjean An editorial supra, v. American Press at 250. merely thus not but personal would respondents, press would shield the in its “as an agent function large. necessary . . The press representative . is the public’s instrumentality interest this context and the Co., Washington public’s effects Post right.” Saxbe v. dissenting). (1974) (Powell, J., U. 863-864 Sullivan, (1964): Compare New York Times Co. 376 U. S. Matteo, 564, 575, “In Barr held the utterance of Court absolutely privileged a federal official to be if made ‘within the outer perimeter’ Analogous support privi of his duties. . . . considerations lege duty government. for the citizen-critic of It is as much his duty criticize as it is *31 (Emphasis supplied.) the official’s to administer.” course, press monopoly Of “the does not have a on either the First ability enlighten.” Amendment or the to First National Bank Boston v. Bellotti, S., by 435 U. at repre 782. “The informative function asserted organized press performed lecturers, politi sentatives of the is ... also pollsters, novelists, researchers, any cal academic and dramatists. Almost may quite accurately contributing author assert that he is to the flow of public Branzburg information to the Hayes, S., . . . .” 705. U.
Ill Tornillo, Publishing Miami Herald Co. 418 U. S.
(1974), struck down as undue the editorial interference with process political right a Florida statute a candidate a granting equal space to to reply criticisms of his record a newspaper.
“Even if a newspaper would costs face no additional comply compulsory with a access law and would forgo publication forced to opinion by news or inclusion reply, of a the Florida statute fails to clear the barriers the First Amendment because of its intrusion into the function of editors. A newspaper is more than passive receptacle or conduit news, comment, advertising. The choice of go material into news- paper, and the decisions made as to on the limitations size and paper, content of the public and treatment of issues and officials—whether fair or unfair —consti- tute the exercise of editorial control and It judgment. yet
has to be demonstrated how governmental regulation of this process crucial can be exercised consistent with First guarantees Amendment press of a free they have evolved to Id., this time.” at 258. Pittsburgh
See
Co.
Press
v. Pittsburgh Comm’n on Human
Relations, 413 U.
391 (1973);
Broadcasting
Columbia
System, Inc. v.
Committee,
Democratic National
of the process editorial of these institutions thus becomes a matter of particular First Amendment concern.10
There is this case, no however, government direct regula- tion respondents’ process. editorial is clear But disclosure of the process editorial press will increase the large likelihood of damages judgments in libel actions, and will thereby discourage participants in that process.11 editorial And, as New York Times stated: may “What State constitutionally bring by about means of a criminal statute is beyond likewise the reach of its civil law of libel. The fear of damage awards under a rule such invoked Alabama courts here may be markedly more inhibiting than of prosecution fear under a criminal statute.” S.,U. at 277. Of course New York Times set forth substantive standard defining speech unprotected by the First Amend- ment, and respondents’ editorial process cannot be shielded merely so as to judicial block determination of whether re- spondents have in fact engaged in such speech. theAs Court states: “[I]f claimed inhibition flows from the fear of damages liability for publishing knowing or reckless false- those hoods, effects are precisely what New York Times not, This is of course, to imply that process persons editorial institutions other than the communications media does not merit First protection. Amendment 11The process editorial could be inhibited in ways other as well. For example, figures might bring against harassment suits the media in order to discovery use aspects uncover which, if publicly revealed, prove would embarrassing to press. In differ ent contexts other First Amendment might values be affected. If sued powerful political figure, for example, journalists might reprisals fear for information disclosed during discovery. Reporters Cf. Committee for Freedom the Press v. Telephone American Telegraph & Co., 192 U. S. App. D. C. 593 F. 2d 1030 chilling Such a might effect par ticularly impact press’ on the ability perform its “cheeking” function. See supra. n. In the instant case, however, petitioner is not such a public official, respondents nor are claiming to be suffering the effects of such a chill. *33 Amend- held to be consistent with the First other eases have Ante, Our becomes inquiry, therefore, ment.” at 171. by the editorial
independent First Amendment values served process exposure of that process and extent impair would these First Amendment values. Tornillo we defined the editorial functional process format of
manner, process whereby as that the content and below published Appeals material is selected. The Court of concerns aspects process. identified two of this The first processes “the 'choice of ma- press regarding mental of the J.). aspect terial’ . .” 568 This 2d, (Oakes, . . at F. his encompasses subjective “thought processes,” an editor’s Id., opinions “thoughts, (Kauf- and conclusions.” at man, J.). Appeals C. The Court of concluded that if dis- covery permitted editorial concerning aspect were journalists process, very process “would be chilled in the Id., thought.” at 984.
I find
implausible.
journalist
this conclusion
can-
Since a
only
not work
thought
without such internal
processes,
way this aspect
editorial
can be chilled is
journalist
ceasing
exceedingly
work
Given the
altogether.
Times,
New York
generous
unlikely.
standards
this seems
New
York Times
Moreover,
protec-
removed First Amendment
tion
defamatory
from
published
falsehood
with actual malice—
in knowing or reckless disregard
Subsequent
of the truth.12
decisions have made
actual
clear that
malice turns on a
journalist’s “subjective
Gertz
probable falsity.”
awareness
Welch, Inc.,
Robert
would be
S.,U.
at
6.
It
n.
anomalous to turn
liability
substantive
sub-
journalist’s
jective attitude and at
same
time to shield from disclosure
the most
evidence
direct
that attitude. There will be,
petitioner’s
Elements of
complaint appear
to set forth a claim for
Time,
privacy.
invasion of
Hitt,
Inc. See
course, margin who some have —those awareness of probable falsity of their work but not enough to constitute actual malice —who discouraged might from publication. But this chill chiefly emanates from the substantive standard of New York Times, not from the absence of an editorial privilege.
The second aspect of the
identified
the Court of Appeals involves “the free interchange of ideas
within the newsroom,”
An editorial privilege aspect protecting of the editorial process would essentially be analogous to the privi executive lege which shields the “advisory opinions, recommendations and deliberations ... which governmental decisions and policies are formulated.” Carl Stiftung Zeiss v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318, (DC 1966). As our cases interpreting Exemption 5 of the Freedom of Act, Information 5 U. S. §C. 552 make (b)(5), clear, this privilege would not protect merely “factual” material, but only “deliberative or policymaking processes.” Mink, EPA v. U.
(1973). The rationale for this privilege succinctly was stated in United Nixon, 418 States v. S.,U. at 705: experi “Human ence teaches that expect who those dissemination their remarks may well temper candor with a concern for appearances and their own interests to the detriment of the process.” decisionmaking edi- proposed respondents’ applies rationale same
The consequences political possible as Just privilege. torial communication predecisional undermine might of disclosure & Sears, Roebuck NLRB see Branch, Executive within libel of future possibility (1975), so Co., discussion candid and dampen full might well judgments impaired Just publications. proposed editors among of executive quality” “the “clearly” affects communication during ibid., too muted discussion so decisionmaking, publica- resulting, quality will affect silent; might remain doubts have who Those editors tions. leads investigative other follow prefer who would those cau- counsel otherwise would who restrained; those might be of such the absence short, tongues. hold their might tion pro- and thoroughness, accuracy, an editorial be diminished. might well publications consequent fundity of values. Amendment First affect would a diminution Such “accurate interest public’s embraces Amendment Wash- Saxbe media.” by the news reporting effective dissenting). J., at 863 Co., S., 417 U. ington Post (Powell, confidence independence had won our “Those who communication reasoning and and fearless of free power truth.... economic political spread to discover ideas *35 impairs . . . press of the and speech of freedom of Abridgment to are essential public education opportunities those through the correcting error of power exercise of the effective Alabama, Thornhill v. government.” processes of popular concededly public is (1940). Petitioner 88, 310 U. S. inter- substantial citizenry legitimate has figure; “[o]ur press of the freedom persons, of such in the conduct est in involvement their about debate in uninhibited engage to case is as crucial issues and events public upon using dis intent official plaintiff in this case Were might well values press, other First Amendment covery to intimidate swpra. implicated. See n. be ”
‘public officials.’ Curtis Publishing Butts, Co. 130, 164 (1967) C. (Warren, J., concurring result). To the extent coverage of such figures becomes fearful and inhibited, to the extent the accuracy, effectiveness, and thoroughness such coverage is undermined, the social values protected by the First Amendment suffer abridgment.
I find compelling justifications these for the existence of an editorial privilege. The values issue at are sufficiently im- portant to justify some incidental sacrifice of evidentiary material.14 The today Court accuracy concedes the underlying rationale for such a privilege, stating that “[w]e do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions other . . Ante, . .” at 173. The Court, however, contents itself with the curious observation “given exposure to liability when there is knowing or reckless error, there even more reason to resort to prepublication precautions, such as a frank interchange of fact Ante, opinion.” Be- at 174. 14My Brother Powell separately writes emphasize that district courts must carefully weigh protected “the values the First Amend ment” in determining the relevance discovery requests. Ante, at 180. time, At the same however, he concludes there should not be an evi- dentiary privilege protects the editorial because “whatever protection the ‘exercise of editorial judgment’ enjoys depends entirely on protection the First Amendment product accords the judgment, this namely, published speech,” ante, and because an “is unnecessary safeguard published speech.” Ibid. I my assume Brother means this that Powell exposure predecisional editorial discus sions will meaningfully affect the subsequent nature of publications. But if is true, I have difficulty understanding exactly what First my Amendment values expects Brother Powell district place courts to may balance. He be suggesting that First Amendment values are impaired merely by requiring media respond defendants discovery requests any like litigant. other But even if district courts were to apply stricter standards of relevance in cases involving defendants, media pretrial discovery burden only marginally would decreased, and it does justified not seem to assume that this result meaningfully would affect *36 the subsequent nature of publications. be prove often will precautions” “prepublication such cause I cannot so actions, in libel evidence extraordinarily damaging instituted, bewill “precautions” such blithely assume by its impaired is exists not now interchange” as “frank such actions. in such exposure potential essentially paradoxical. is reasoning my fully
I concede that privi- an editorial information, accurate of more sake For the inaccuracies possible the from disclosure shield lege would privi- the press, responsible of a more in the name press; the re- legal application difficult make more lege would paradox, The same is bound. press by which straints so privilege: of an executive concept in the however, inheres effectively implement more government enable kept ignorance people are people, of the will unfortunately paradox government. their workings of required Judgment condition. social our intrinsic to competing perspectives. balance these evaluate the tension accommodate required to is also Judgment in preventing interest strong society’s “pervasive between Baer, Rosenblatt v. upon reputation,” redressing attacks values the First Amendment (1966), and 383 U. S. my view privilege. be served an
would is the As in the abstract. resolved is too fine to be tension specific more must a there privilege, executive case given law interests asserted particular balancing example, for will privilege, claim executive general A suit. evi specific need for “demonstrated, against a not stand Nixon, 713. United States S., 418 U. .” v. dence . . . prevail of need statement will general Conversely, necessity for executive concrete demonstration over a Reynolds, 1, 41 (1953). United States U. secrecy. upon similarly dependent are evidentiary privileges Other specific lawsuit. demonstrated exigencies particular example, States, (1957), United Roviaro depends informer’s of an the existence held *37 “on the particular circumstances taking each into case, consideration the crime charged, the possible defenses, possible significance of the informer’s testimony, and other Id., relevant factors.” at 62. Hickman Taylor, 329 U. S. 495 (1947), similarly required ad hoc balancing to determine the existence of an attorneys’ work-product privilege. The procedures whereby this balancing is so far from achieved, constituting mere “formalism,” ante, at 175 are in n. fact the means through which have courts traditionally resolved conflicts between competing social and individual interests.
In my judgment, existence a privilege protecting the editorial process must, in an analogous manner, be determined with reference to the circumstances particular of a ease.
the area of libel, the balance New York Times struck between the values of the First society’s Amendment and interest in preventing and redressing upon attacks reputation must preserved. be This can best be accomplished if the privilege functions to shield the editorial general from claims of damaged reputation. If, however, public-figure plaintiff able to establish, to the prima facie satisfaction of defamatory trial judge, publication that the at issue constitutes sehood,15 the claim of damaged reputation fal becomes specific and demonstrable, and the editorial privilege must yield.16 Contrary to suggestion an Court, privilege so understood would not create “a substantial inter ference with the ability of a defamation plaintiff to establish the ingredients of as required malice New York Times.” Ante, at 170. Requiring a public-figure plaintiff to make a 15See Cooperative Greenbelt Publishing Assn. v. Bresler, 398 U. S. 16 I do not reach the case in which a media defendant specific has more and concrete interests at stake. See nn. 11 supra. Nor do I reach the case which litigant with more weighty interests than a civil plaintiff attempts to overcome a claim of editorial privilege. See, g., e. Associated Press NLRB, 301 U. (1937); S. 103 Associated Press v. United States, 326 U. 1 (1945). consti will not defamatory falsehood showing of facie prima eventually demonstrate must he since burden, undue tute an edi since And in chief.17 case of his part elements these policymaking deliberative only protects torial ade discovery should material, factual processes public- A *38 of falsehood. evidence relevant acquire to quate his attacks to redress able be thus will plaintiff figure bewill editorial time same and at reputation, necessary cases. the most all but protected
IV dif- is most case instant to principles these Applying discovery objectionable categories five since ficult, and general, are Appeals Court by the formulated inquiries are questions specific what to determine impossible nevertheless It would category. each within encompassed respondents’ concern categories five of the four that appear by an covered not be would thus and processes, mental category- fourth Only the privilege. —-“Conversations editorial included be matter about and Wallace Lando between to be seem publication” broadcast from the excluded —would Court privilege. editorial proper protected already made had respondents that however, noted, Appeals pre- contents discovery “the petitioner available .” . . . Wallace Lando between conversations telecast constitutes Whether J.).C. (Kaufman, 2d, F. in the determined should privilege of the waiver like the therefore, I would Court. District by the instance first Court, but District to the this case remand Appeals, Court (a) whether determine Court the District require would not, if (b) privilege; their editorial waived have respondents through can overcome Herbert petitioner whether motion of his showing part as prima facie his make can plaintiff A any 37, or at Proc. Fed. Rule Civ. discovery under compelling order an time. appropriate other prima facie showing of defamatory falsehood; (c) if not, proper scope application of the privilege.
Mr. Justice Stewart, dissenting.
It seems to me that both the Appeals Court of and this Court have addressed a question presented that is not by the case before I us. As understand the constitutional rule New York Times Sullivan, Co. inquiry S. 254, U. into' the broad process” “editorial is simply not in a relevant libel brought by suit a public figure against publisher. And if such an inquiry is not relevant, permissible. it is not Fed. Rule Civ. 26 (b). Proc. I
Although joined the Times, in New York opinion Court’s I have come greatly regret opinion the use phrase “actual malice.” For the fact of the matter “malice” as used in the New York Times opinion simply does not mean malice commonly word is understood.
common understanding, malice means ill or hostility,1 will most question the relevant in determining person’s whether a action was motivated “why.” actual malice tois ask As part of the constitutional standard enunciated in the New York Times case, however, “actual malice” nothing has do hostility or ill will, question and the “why” totally irrelevant.
Under the New York imposed by constitutional restrictions Times and its a progeny, plaintiff public who is or a official public figure can publisher recover from a for defamatory a upon statement convincingly proof following clear elements:
(1) the published statement was by the defendant, (2) the statement defamed the plaintiff, (3) the defamation was untrue, and
(4) the defendant knew defamatory the statement was untrue, published it in reckless disregard of its truth or Dictionary (2d 1961).
1 See New International Webster’s 1367 ed.
200 (plu Inc., 29 Metromedia, 403 U. S. v.
falsity. Rosenbloom 401 Damron, U. S. v. Star-Banner Co. Ocala rality opinion); Co. v. Patriot 279; Monitor Time, U. Pape, Inc. v. 401 295; S. Bresler, v. Coop. Pub. Assn. 265; Greenbelt Roy, 401 U. S. 727; Beckley S. Thompson, U. Amant v. 6; U. S. St. Publishing Curtis Hanks, 81; S. Corp. v. U. Newspapers 75; Baer, 383 S.U. Rosenblatt v. Butts, 130; U. Co. v. Time, v. Inc. Sullivan, supra. Cf. York Times Co. v. New Inc., 418 Welch, Robert Firestone, 448; Gertz v. Time, Inc. 264; Austin, U. S. Letter 323; Carriers U. S. Workers, 383 Guard Linn v. Plant Hill, 374; S.U. 53. U. S. concerns that thus such lawsuit gravamen nothing has published was not published. What
was fact upon depends ultimately liability case. And to do with the he falsity of what knowledge the publisher’s state it— n publishing motivation upon his at all published, not words as those malice words, upon actual all, in other not at ordinarily understood. are been lawyers have judges first time
This is York New malice” phrase “actual astray by the led Bresler, Assn. v. Coop. In Pub. opinion. Greenbelt Times figure brought defamation suit supra, another jury that judge instructed trial against publisher, publication if recover the defendant’s plaintiff could “spite, means that malice malice, and made with had been reversing to harm.” intention or deliberate hostility, jury instruction we said that plaintiff, judgment S., magnitude.” U. constitutional “error of constituted *40 Austin, Rosenblatt supra, 281; at Carriers v. Letter at Cf. 10. Baer, 83-84. at supra, Appeals Court neither the course, present
In the case, error egregious overtly has committed nor this Court carefully enunciated Both courts have in Bresler. manifested 2d 568 F. York Times test. See New the correct (opinion ante, Oakes, J.), 156-157. at each has then But a false trail, explainable only by followed misap- an unstated prehension of the meaning of New York Times “actual malice,” to arrive at the issue of process” privilege. “editorial This misapprehension phrases reflected numerous in the prevailing Appeals opinions: Court of journalist’s “a exercise of editorial control and judgment,” journalist “how a formu- lated his judgments,” “the editorial selection process press,” “the heart of the editorial for the process,” “reasons inclusion or exclusion of certain material.” 2d See 568 P.
passim. misapprehension Similar reflected this Court’s opinion by phrases such as “improper “intent or motive,” purpose with which the publication was “ill made,” will,” and by lengthy footnote discussion about the spite hostility required to ante, constitute malice at common law. See 162 and 164.
Once our correct bearings are taken, however, and it is firmly recognized publisher’s that a motivation a case such as this is irrelevant, clearly there is no occasion for inquiry into the conceptualized I this case. shall burden this opinion with a discovery list of the 84 questions at issue.2 say Suffice it to any if few them following are samples: some random you “Did come unnecessary ever to a conclusion that it was to talk to Capt. prior presentation Laurence Potter to the program of the February 4th?” you you “Did come to the conclusion that did not want to have a filmed Sgt. program?” interview with Carmon for the you prepared
“When the final draft program you aired, to be did any form conclusion as to presented by whether one of the matters program was Col. Herbert’s view of the treatment of the Vietnamese?” you any “Do have recollection of discussing anybody at CBS whether sequence should be program excluded from the as broadcast?” publication Monthly “Prior to the of the Atlantic article, Lando, Mr. did you preparation discuss that article or the any of that article with representative of CBS?”
202 construction most liberal within even to me to come
seem (b).3 26 Civ. Proc. of Fed. Rule Appeals, the Court went
By the time this case to inter- lasted had Lando alone respondent deposition 2,903 pages filled year and had mittently over a for plaintiff had, 240 exhibits. an additional transcript, what “already discovered words, Judge Kaufman’s in Chief investigation.” during his said and wrote saw, knew, Lando more already me, to was it seems at 984. 2d, That, F. than sufficient. “the prime goal whose procedure of federal system action,” every determination of inexpensive speedy, and
just, discovery is burden- pretrial expensive time-consuming Rule bounds of arguable within the even when enough, some discovery is intolerable. pretrial totally irrelevant (b). But to the this case I remand would Appeals, Like the Court measure each of to with directions Court, but District criteria the constitutional strictly against questions proposed it be Only can then York Times New progeny. its truly of the editorial invasion whether determined threatened. dissenting. Marshall,
Mr. Justice the accommodation maintain to professing Although Sullivan, 376 U. Co. York Times in New struck interests the constitu- unresponsive today is Court 254 (1964), I be- Because opinion. underlying that considerations tional discovery are essential pretrial on constraints that some lieve debate robust” “uninhibited [and] ensure part: (b) (1) provides in relevant Rule privileged, any matter, not discovery regarding may obtain “Parties pending .... action subject matter involved to the is relevant sought will be inad- the information objection ground It is reasonably calculated sought appears if the information trial at the missible discovery admissible evidence.” lead Proc. 1. Civ. Rule Fed. *42 id., issues which I contemplated, respectfully Sullivan at 270, dissent.
I
At issue in this case are
interests of familiar di
competing
undeniably
affording
mension.
in
States
have an interest
protection
individuals some measure of
from unwarranted
defamatory
only
attacks. Libel
end,
actions serve
by assuring a forum in which
can be
reputations
publicly
injuries
vindicated and
but
dignitary
compensated,
also
for the
creating
press
judg
incentives
to exercise considered
publishing
compromises
ment
personal
before
material
Welch, Inc.,
integrity.
323,
See Gertz v. Robert
418 U. S.
Baer,
(1966).
341-342 (1974); Rosenblatt v.
383 U. S.
society’s interest
Against
objectives
these
must be balanced
promoting
public impor
in
unfettered
debate
matters
recognized
Sullivan,
in
As this Court
error is inevitable
tance.
if
guarantee
such
forced to
the truth
all
debate, and,
be
potential
might suppress
critics
statements
assertions,
lieved to be accurate “because of doubt whether '[truthful
proved
expense
having
can be
court or fear of the
ness]
279.
S.,
self-censorship
to do so.”
Such
would
U.
incompatible with the tenets on which the First Amendment
repre
and our democratic institutions are founded. Under system of
an informed electorate
government,
sentative
is
responsive decisionmaking. See Associated
precondition of
States,
Grosjean
(1945);
United
Press v.
Yet standard Insulating press conceived. the ends was self-censorship so liability unlikely to avert from ultimate facially suffi- long any plaintiff deep pocket with a discovery complaint is afforded unconstrained cient If of interests process. the substantive balance be reassessed struck in Sullivan is to remain it must viable, procedural libel actions light of the realities under which are conducted.
II discovery potential procedures for abuse of liberal members particular concern in context. As the defamation *43 of bench bar rules increasingly noted, designed the and have disputes too expeditious to facilitate resolution of civil have proved delay.1 Capitalizing often for tools harassment Taylor, in Hickman this Court’s broad mandate v. 329 Holder, 495, (1947), Schlagenhauf U. 507 reaffirmed in S. discovery 379 U. 114-115 ac 104, (1964), that rules corded litigants a “broad and liberal” have on occasion scope, 26 transformed Fed. Rule Proc. devices into tactics of Civ. possibility attrition. The of libel such abuse enhanced in many self-perceived for of defamation are litigation, victims by something more calculus of animated than rational their of recovery.2 chances Given the under which circumstances Bell, Follow-up: Response 1See Pound Conference A from (1978) ; Department Justice, 320, United States of 76 F. D. 328-329 R. Erikson, Blueprint The Pound Conference A for the Recommendations: System Twenty-First 277, Century, Justice in the 288-290 76 F. R. D. (1978); Lasker, The Bench, Court Crunch: A View from the 76 R. D. F. 245, (1978); Litigation Section, Report Special A. B. A. Com of Study Discovery (Oct. 1977); Stanley, mittee for the of Abuse President's Page, (1976); Agenda Burger, B. A. J. 1375 for 2000 A. D.—A Need A. Systematic Anticipation, (1976); Moore, 70 F. 95-96 R. D. J. Federal See Anderson, Practice ¶ Libel and Press 26.02 [3] (2d ed. Self-Censorship, 1976). Texas L. Rev. fash- may be maneuvers pretrial arise, plaintiffs’
libel actions than or retaliation eye to deterrence more with an ioned germane material. unearthing em discovery particularly terror risk of only
Not conse- the societal but context, defamation in the pronounced magnitude. special abuse are attending such quences pro- expense of to the intrusiveness than submit Rather ability.to their confident even editors discovery, tracted may judgment summary on a motion for at prevail trial “ zone’ of the unlawful far prudent ‘steer wid[e] find cognizance.” from discussion thereby keeping protected (1971) Inc., Metromedia, 29, 53 Rosenbloom pros- omitted). Faced citation opinion; (plurality from of time diversion attorney’s fees, escalating pect of sensitive potentially exposure endeavors, journalistic publication judgments make may well editors information, expense liability than the the risk reflect less vindication.3 discovery abuse, problem acknowledging a
Although “major elsewhere, remedy lies suggests Court Ante, 177. Procedure.” of Civil present Rules changes further Court inconsistently, asserts And somewhat ample . . and in law . “in already fact have judges district agree. Where Ibid. I cannot prevent abuse.” ... powers *44 in- critically implicated, are rights Amendment First exercise. their effective safeguard Court this cumbent Schlagenhauf un- Hickman of directives leaving the By abdi- has the Court litigation, to libel respect qualified responsibility.4 that cated expense can be con illustrate, that case the instant facts of theAs days and close consumed alone Lando deposition of The siderable. 1977). (CA2 974, 982 F. 2d transcript. See 568 pages of 3,000 Powell Stewart Brothers my of opinions separate Although the opin than does the values First Amendment for greater
display solicitude presented issue the critical they elide too Court, I believe that for the ion Hickman, surely liberal” standard “broad and Under case. In my judgment, the same constitutional concerns that impelled us in Sullivan to confine the circumstances under liability defamation could attach also mandate some constraints on I roving discovery. would hold that broad discovery principles enunciated in Schlagenhauf Hickman and inapposite are in defamation I cases. More specifically, would require that district superintend courts pretrial disclosure in litigation such so protect as to press unnecessarily from protracted or tangential inquiry. discovery To end, requests should be against measured a strict standard rele- Further, vance. because the threat of may disclosure intrude with special force on certain aspects of the process, I believe some protection additional in the form of an eviden- tiary privilege is warranted.
Ill The Court of Appeals extended a privilege subsuming essentially two of discovery requests. kinds The first included questions concerning the state of of an mind jour- individual principally nalist, his conclusions and bases conclusions as to the accuracy of compiled information during investigation. encompassed second journalists communications between about matter to be included the broadcast. F. 2d (CA2 1977). Reasoning discovery of both forms material would be intrusive, the intrusion be would inhibiting, and that such inhibition would be inconsistent with disclosure of what journalist was known to a published,” but “was ante, (opinion at 200 J.), Stewart, germane often will to whether that proceeded individual with deliberate or reckless disregard for the truth. And admonishing district courts to discovery monitor in the “interest justice,” ante, at (opinion J.) prevent Powell, or to “undue burden or expense,” ibid., adds guidance little to already afforded Rule 26 adequately mitigate cannot press burdens on the so long as Hickman’s directive remains force. Moreover, opinion neither di- rectly responsive to discovery the effect of on editorial discussion. See
infra, at 208-209. *45 Publish- Miami Herald autonomy recognized
the editorial Columbia and Tornillo, (1974), ing Co. U. S. Committee, National Democratic Broadcasting Inc. v. System, a that concluded Appeals of the Court (1973), S.U. 975. 2d, at F. privilege from disclosure was essential. cannot syllogism inquiry, that respect With to state-of-mind be well may discovery although For analysis. withstand possi journalists how faced intrusive, it is unclear of very process in the can “chilled bility questions of such are strictures Id., of whether thought.” Regardless 984. at must continue reporters editors placed discovery, veracity opinions and conclusions about think, and to form At information. accuracy of their of their sources and press insulate the only failure to argued can be best, it editing process inhibit from this form of disclosure will not concern questions specter product but the final —that from refrain journalists to opinion belief will induce ing my thought to be But publishing material accurate. ante, inhibition would 192-193, notes, Brother Brennan standard, principally from Sullivan’s substantive emanate long as discovery. So incremental of such from the effect inquiry as Sullivan of mind some dispositive, makes state is inevitable. editorial decisions are made the manner which asking reporter simply implausible suppose And it is pub given not included in a why certain material was was likely journalism than will be more incisive lication to stifle regarding compelling objective evidence disclosure other decision.5 produced Respondents in this case of evidence considerable amount regarding preparation of the broadcast: questions seen; knew, or had
"Lando answered innumerable about what he interviewees; interviewed; he intimate details of his discussions with whom frequency his The ex- and the form and communications with sources. report- transcripts interviews; his produced hibits included volumes notes; videotapes interviews; the ‘60 series of drafts of ers *46 here, that Court the District did as suggest, I mean to not do “nothing to do” Broadcasting have Columbia Tornillo 1977). To (SDNY 387, D. 73 R. this case. F. recognition autonomy given of editorial the values contrary, monitor they as courts inform district should those decisions assuming that But cases. of defamation discovery phase unduly prevent obligation discharged his has judge trial amI 206, supra, at see disclosure, or protracted inessential ofwill inquiry impact state-of-mind unpersuaded con threshold beyond the journalistic endeavor itself threaten by Sullivan. templated however, decisionmaking, of editorial evidence
External not concern is For here the footing. different stands inhibited, be but may product ultimate simply that stop cannot Journalists be chilled. itself will articulating can cease they hypotheses, but tentative forming freely discovera- dialogue is prepublication If openly. them air their prove well reluctant reporters may editors ble, pre-telecast con- the contents also discovered Herbert Minutes’ telecast. to documents as as well reactions Lando Wallace between versations omitted). (footnote 2d, at 982 both.” considered F. why of this disclosure self-evident proposition, As an abstract likely to inhibit sought, be less was would material, no for which cases inquiries, in most publication than state-of-mind the final Indeed, responses. Court self-serving elicit presumably would awareness “rarely proving may successful acknowledges, plaintiffs Ante, at 170. himself.” of the defendant from mouth falsehood substantially questions will seriously Thus, I that state-of-mind doubt Ante, in libel actions.” large damages judgments “increase the likelihood of such disputed that J.). can it be BrennaN, But neither (opinion at 191 plaintiffs in defama questions might generate answers useful on occasion Schuchat, 351, 355- g., App. D. e. Davis v. See, C. tion suits. Ginzburg, 414 F. 2d 324, (1975); Goldwater 356, v. 731, 510 F. 2d 735-736 Best (1970); Varnish (CA2 1969), denied, 396 U. S. 334-335 cert. denied, 394 Publishing (CA2 1968), cert. Co., Medium 405 F. 2d S. 987 U. informa- presenting explore other means
reservations
may
discovery
unchecked
and comment. The threat of
tion
to sound editorial
collegial
well
discussion essential
stifle
Nixon, 418
United States
dynamics.
recognized
As we
dissemina-
expect public
who
(1974):
U. S.
“[T]hose
concern
candor with a
may
temper
well
tion of their remarks
*47
decisionmaking
to the detriment
appearances
for
...
Roebuck
Sears,
omitted.)
NLRB
(Footnote
process.”
Cf.
in en-
Society’s interest
Co.,
(1975).
132,
&
ill-served
events is
accuracy
coverage
hancing the
uncertainty.
expression
tending to muffle
by procedures
among journalists,
interchange
a climate of free
preserve
To
guaranteed.
must be
confidentiality of their conversation
discovery privilege
I
believe, to accord
enough,
It
not
is
prima
any
who can make
yield
plaintiff
before
would
that
ante,
(opinion
197-198
falsity.
at
showing of
See
facie
certi-
with some
knows
J.).
journalist
Unless a
Brennan,
re-
they may
protection,
enjoy
will
misgivings
his
tude that
J., concur-
(Oakes,
at 994
2d,
568 F.
unexpressed.
main
See
can
plaintiff
available whenever a
If full disclosure is
ring).
particular,
in
press erred
some
establish
demonstrably
inhibited than
less
not be
communication would
pre-
by hypothesis,
it
approach. And
Court’s
under the
significant
of error is
in which the risk
cisely those instances
valuable.
frank discussion most
in
discovery
I
defamation
would foreclose
Accordingly,
Shielding
conversation.6
substance of editorial
cases as to the
ante,
165,169-170,
Contrary
intimation,
this would
to the Court’s
protection apart from the Sullivan malice stand
in which
be the first instance
safeguard
implicated
interests
the constitutional
has been extended to
ard
sensitivity
displayed
example,
For
lower courts have
in libel suits.
compel
con
assessing
in
motions to
disclosure of
First Amendment values
Inc.,
(CA8
Time,
2d
992-994
sources,
Cervantes v.
fidential
see
F.
(1973),
and motions
defendants
1972),
denied,
I would therefore Appeals direct the Court to remand this case to the Court for District determination whether first, questions concerning satisfy Lando’s state of mind II criteria set forth Part of this second, opinion, respondents whether III waived the defined Part prepublication discussions. *48 App. 965, 34-35, D. C. F. (1966), denied, 2d 967-968 cert. would, course,
Different
considerations
obtain if a
for edi-
conjunction
torial
sought
proceed-
communications were
with criminal
ings.
Jascalevich,
(1978)
Cf. New York Times Co. v.