HERBERT v. LANDO 441 U.S. 153 (1979)

In Herbert v. Lando a majority of the Supreme Court soundly rejected the argument that the constitutional protections afforded journalists should be expanded to bar inquiry into the editorial processes of the press in libel actions. Anthony Herbert, a Vietnam veteran, received widespread media attention when he accused his superior officers of covering up atrocities and other war crimes. Herbert sued for libel when CBS broadcast a report and The Atlantic Monthly published an article, both by Barry Lando, about Herbert and his accusations. Herbert conceded that he was a public figure required by new york times v. sullivan (1964) to prove that the media defendants acted with "actual malice." During pretrial discovery, Lando refused to answer questions on the ground that the first amendment precluded inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process.

The Court recognized that the first amendment affords substantial protection to media defendants in libel actions, citing specifically the Sullivan requirement that public figures and officials must prove knowing or reckless untruth. The Court noted, however, that the Framers did not abolish civil or criminal liability for defamation when adopting the First Amendment. It reasoned that upholding a constitutional privilege that barred inquiry into facts relating directly to the central issue of the defendant's state of mind would effectively deprive plaintiffs of the very evidence necessary to prove their case. That result would substantially eliminate recovery by plaintiffs who were public figures or public officials.

Justice lewis f. powell separately elaborated upon the majority's admonition that in supervising discovery in libel actions, trial judges should exercise appropriate controls to prevent abuse, noting the courts' duty to consider First Amendment interests along with plaintiffs' private interest. Justice william j. brennan, dissenting in part, asserted that the First Amendment provided a qualified editorial privilege which would yield once the plaintiff demonstrated a prima facie defamatory falsehood. Separately dissenting, Justice potter j. stewart argued that inquiry into the editorial process is irrelevant, and Justice thurgood marshall rejected the majority's balance of the competing First Amendment and private interests.

Kim m c Lane Wardlaw
(1986)

(see also: Balancing Test; Evidence; Freedom of the Press.)