MR. JUSTICE WHITE delivered the opinion of the Court.
By virtue of the First and Fourteenth Amendments, neither the Federal nor a State Government may make any law "abridging the freedom of speech, or of the press . . . ." The question here is whether those Amendments should be construed to provide further protection for the press 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 the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action.
Petitioner, Anthony Herbert, is a retired Army officer who had extended wartime service in Vietnam and who received
Although his cause of action arose under New York State defamation law, Herbert conceded that because he was a "public figure" the First and Fourteenth Amendments precluded recovery absent proof that respondents had published a damaging falsehood "with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." This was the holding of New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), with respect to alleged libels of public officials, and extended to "public figures" by Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
In preparing to prove his case in light of these requirements, Herbert deposed Lando at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process.
A divided panel reversed the District Court. 568 F.2d 974 (CA2 1977). Two judges, writing separate but overlapping opinions, concluded that the First Amendment lent sufficient protection to the editorial processes to protect Lando from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. The privilege not to answer was held to be absolute. We granted certiorari because of the importance of the issue involved. 435 U.S. 922 (1978). We have concluded that the Court of Appeals misconstrued the First and Fourteenth Amendments and accordingly reverse its judgment.
Civil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability. Until New York Times, the prevailing jurisprudence was that "[l]ibelous utterances [are not] within the area of constitutionally protected speech . . . ." Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); see also Roth v. United States, 354 U.S. 476, 482-483 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-708 (1931). The accepted view was that neither civil nor criminal
These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood.
Nor did these cases suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of public figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps,
It is also untenable to conclude from our cases that, although proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred, plaintiffs may not inquire directly from the defendants whether they knew or had reason to suspect that their damaging publication was in error. In Butts, for example, it is evident from the record that the editorial process had been subjected to close examination and that direct as well as indirect evidence was relied on to prove that the defendant magazine had acted with actual malice. The damages verdict was sustained without any suggestion that plaintiff's proof had trenched upon forbidden areas.
Furthermore, long before New York Times was decided, certain qualified privileges had developed to protect a publisher from liability for libel unless the publication was made with malice.
It is incredible to believe that the Court in Columbia Broadcasting System or in Tornillo silently effected a substantial contraction of the rights preserved to defamation plaintiffs in Sullivan, Butts, and like cases. Tornillo and Gertz v. Robert Welch, Inc., were announced on the same day; and although the Court's opinion in Gertz contained an overview of recent developments in the relationship between the First Amendment and the law of libel, there was no hint that a companion case had narrowed the evidence available to a defamation plaintiff. Quite the opposite inference is to be drawn from the Gertz opinion, since it, like prior First Amendment libel cases, recited without criticism the facts of record indicating that the state of mind of the editor had been placed at issue. Nor did the Gertz opinion, in requiring proof of some degree of fault on the part of the defendant editor and in forbidding punitive damages absent at least reckless disregard of truth or falsity, suggest that the First Amendment also foreclosed direct inquiry into these critical elements.
It is nevertheless urged by respondents that the balance struck in New York Times should now be modified to provide further protections for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); St. Amant v. Thompson, 390 U.S. 727 (1968); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1976). At the same time, however, the Court has reiterated its conviction— reflected in the laws of defamation of all of the States— that the individual's interest in his reputation is also a basic concern. Id., at 455-457; Gertz v. Robert Welch, Inc., supra, at 348-349.
We are thus being asked to modify firmly established constitutional doctrine by placing beyond the plaintiff's reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to plaintiffs such as Herbert. The case for
In the first place, it is plain enough that the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times. As respondents would have it, the defendant's reckless disregard of the truth, a critical element, could not be shown by direct evidence through inquiry into the thoughts, opinions, and conclusions of the publisher, but could be proved only by objective evidence from which the ultimate fact could be inferred. It may be that plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself, but the relevance of answers to such inquiries, which the District Court recognized and the Court of Appeals did not deny, can hardly be doubted. To erect an impenetrable barrier to the plaintiff's use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications,
Furthermore, the outer boundaries of the editorial privilege now urged are difficult to perceive. The opinions below did not state, and respondents do not explain, precisely when the editorial process begins and when it ends. Moreover, although we are told that respondent Lando was willing to testify as to what he "knew" and what he had "learned" from his interviews, as opposed to what he "believed," it is not at all clear why the suggested editorial privilege would not cover knowledge as well as belief about the veracity of published
Nevertheless, we are urged by respondents to override these important interests because requiring disclosure of editorial conversations and of a reporter's conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decisionmaking. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. "[T]here is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., supra, at 340.
Realistically, however, some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit
Of course, if inquiry into editorial conclusions threatens the suppression not only of information known or strongly suspected to be unreliable but also of truthful information, the issue would be quite different. But as we have said, our cases necessarily contemplate examination of the editorial process to prove the necessary awareness of probable falsehood, and if indirect proof of this element does not stifle truthful publication and is consistent with the First Amendment, as respondents seem to concede, we do not understand how direct inquiry with respect to the ultimate issue would be substantially more suspect.
It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs.
This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No such problem exists here, however, where there is a specific claim of injury arising from a publication that is alleged to have been knowingly or recklessly false.
With these considerations in mind, we conclude that the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge.
Although defamation litigation, including suits against the press, is 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 a prima facie case by proving the damaging publication. Truth
Creating a constitutional privilege foreclosing direct inquiry into the editorial process, however, would not cure this problem for the press. Only complete immunity from liability for defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus.
The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Schlagenhauf v. Holder, 379 U.S. 104, 114-115 (1964); Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947). But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) To this end, the requirement of Rule 26 (b) (1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . ." Rule 26 (c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.
Whether, as a nonconstitutional matter, however, the trial judge properly applied the rules of discovery was not within the boundaries of the question certified under 28 U. S. C. § 1292 (b) and accordingly is not before us.
MR. JUSTICE POWELL, concurring.
I join the opinion of the Court, and write separately to elaborate on what is said in Part IV. I do not see my observations
I agree with the Court that the explicit constitutional protection of First Amendment rights in a case of this kind, as articulated by New York Times Co. v. Sullivan, 376 U.S. 254 (1964), should not be expanded to create an evidentiary privilege. With respect to pretrial discovery in a civil proceeding, whatever protection the "exercise of editorial judgment" enjoys depends entirely on the protection the First Amendment accords the product of this judgment, namely, published speech.
Under present Rules the initial inquiry in enforcement of any discovery request is one of relevance. Whatever standard may be appropriate in other types of cases, when a discovery demand arguably impinges on First Amendment rights a district court should measure the degree of relevance required in light of both the private needs of the parties and the public concerns implicated. On the one hand, as this Court has repeatedly recognized, the solicitude for First Amendment rights evidenced in our opinions reflects concern for the
The Court today emphasizes that the focus must be on relevance, that the injunction of Fed. Rule Civ. Proc. 1 must be heeded, and that "district courts should not neglect their power to restrict discovery" in the interest of justice or to protect the parties from undue burden or expense. Ante, at 177; see Fed. Rule Civ. Proc. 26 (c). I join the Court's opinion on my understanding that in heeding these admonitions, the district court must ensure that the values protected by the First Amendment, though entitled to no constitutional privilege in a case of this kind, are weighed carefully in striking a proper balance.
MR. JUSTICE BRENNAN, dissenting in part.
Respondents are representatives of the news media. They are defendants in a libel action brought by petitioner, Lieutenant
The Court of Appeals below stated that "the issue presented by this case is whether, and to what extent, inquiry into the editorial process, conducted during discovery in a New York Times v. Sullivan type libel action, impermissibly burdens the work of reporters and broadcasters." Id., at 979 (Kaufman, C. J.). The court grouped the discovery inquiries objected to by respondents into five categories:
The Court of Appeals concluded:
The Court of Appeals held that all five categories of information sought by petitioner were shielded by an editorial privilege.
The holding of the Court of Appeals presents a novel and difficult question of law. Federal Rule Civ. Proc. 26 (b) (1) provides: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." (Emphasis supplied.) The instant case is brought under diversity jurisdiction, 28 U. S. C. § 1332 (a), and Fed. Rule Evid. 501 states that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness [or] person . . . shall be determined in accordance with State law." Although New York Times Co. v. Sullivan, 376 U.S. 254 (1964), placed constitutional limits on state libel claims, it did not itself create a federal cause of action for libel. The "rule of decision" in this case, therefore, is defined by state law. There is no contention, however, that applicable state law encompasses an editorial privilege. Thus if we were to create and apply such a privilege, it would have to be constitutionally grounded, as, for example, is executive privilege, see United States v. Nixon, 418 U.S. 683 (1974), or the privilege against self-incrimination. See McCarthy v. Arndstein, 266 U.S. 34 (1924). The existence
This case must be approached from the premise that pretrial discovery is normally to be "accorded a broad and liberal treatment," Hickman v. Taylor, 329 U.S. 495, 507 (1947), and that judicial creation of evidentiary privileges is generally to be discouraged. We have in the past, however, recognized evidentiary privileges in order to protect "interests and relationships which . . . are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." E. Cleary, McCormick on Evidence 152 (2d ed. 1972). For example, Hickman v. Taylor, supra, created a qualified privilege for attorneys' work products in part because, without such a privilege, "[t]he effect on the legal profession would be demoralizing." 329 U. S., at 511. Similarly, Roviaro v. United States, 353 U.S. 53 (1957), recognized a qualified "informer's privilege" for "the furtherance and protection of the public interest in effective law enforcement." Id., at 59.
The inquiry to be pursued, therefore, is whether the creation of an editorial privilege would so further the purposes and goals of the constitutional scheme as embodied in the First Amendment, as to justify "some incidental sacrifice" of evidentiary material. This inquiry need not reach an inflexible result: The justifications for an editorial privilege may well support only a qualified privilege which, in appropriate instances, must yield to the requirements of "the administration of justice."
Mr. Justice Brandeis reminded us over a half century ago that "[t]hose who won our independence . . . valued liberty both as an end and as a means."
In recognition of the social values served by the First Amendment, our decisions have referred to "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (emphasis supplied), and to "the circulation of information to which the public is entitled in virtue of the constitutional guaranties." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) (emphasis supplied). In Time, Inc. v. Hill, 385 U.S. 374 (1967), we stated that the guarantees of the First Amendment "are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society." Id., at 389.
The editorial privilege claimed by respondents must be carefully analyzed to determine whether its creation would significantly further these social values recognized by our prior decisions. In this analysis it is relevant to note that respondents are representatives of the communications media, and that the "press and broadcast media," Gertz v. Robert
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), struck down as undue interference with the editorial process a Florida statute granting a political candidate a right to equal space to reply to criticisms of his record by a newspaper.
See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 391 (1973); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120, 124-125 (1973). Through the editorial process expression is composed; to regulate the process is therefore to regulate the expression. The autonomy of the speaker is thereby compromised, whether that speaker is a large urban newspaper or an individual pamphleteer. The print and broadcast media, however, because of their large organizational structure, cannot exist without some form of editorial process. The protection
There is in this case, however, no direct government regulation of respondents' editorial process. But it is clear that disclosure of the editorial process of the press will increase the likelihood of large damages judgments in libel actions, and will thereby discourage participants in that editorial process.
In Tornillo we defined the editorial process in a functional manner, as that process whereby the content and format of published material is selected. The Court of Appeals below identified two aspects of this process. The first concerns "the mental processes of the press regarding `choice of material'. . . ." 568 F. 2d, at 995 (Oakes, J.). This aspect encompasses an editor's subjective "thought processes," his "thoughts, opinions and conclusions." Id., at 980, 984 (Kaufman, C. J.). The Court of Appeals concluded that if discovery were permitted concerning this aspect of the editorial process, journalists "would be chilled in the very process of thought." Id., at 984.
I find this conclusion implausible. Since a journalist cannot work without such internal thought processes, the only way this aspect of the editorial process can be chilled is by a journalist ceasing to work altogether. Given the exceedingly generous standards of New York Times, this seems unlikely. Moreover, New York Times removed First Amendment protection from defamatory falsehood published with actual malice— in knowing or reckless disregard of the truth.
The second aspect of the editorial privilege identified by the Court of Appeals involves "the free interchange of ideas within the newsroom," 568 F. 2d, at 980 (Kaufman, C. J.), "the relationship among editors." Id., at 993 (Oakes, J.). Judge Oakes concluded that "[i]deas expressed in conversations, memoranda, handwritten notes and the like, if discoverable, would in the future `likely' lead to a more muted, less vigorous and creative give-and-take in the editorial room." Id., at 993-994. Chief Judge Kaufman stated that "[a] reporter or editor, aware that his thoughts might have to be justified in a court of law, would often be discouraged and dissuaded from the creative verbal testing, probing, and discussion of hypotheses and alternatives which are the sine qua non of responsible journalism." Id., at 980.
An editorial privilege protecting this aspect of the editorial process would essentially be analogous to the executive privilege which shields the "advisory opinions, recommendations and deliberations. . . by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318, 324 (DC 1966). As our cases interpreting Exemption 5 of the Freedom of Information Act, 5 U. S. C. § 552 (b) (5), make clear, this privilege would not protect merely "factual" material, but only "deliberative or policymaking processes." EPA v. Mink, 410 U.S. 73, 89 (1973). The rationale for this privilege was succinctly stated in United States v. Nixon, 418 U. S., at 705: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."
Such a diminution would affect First Amendment values. The Amendment embraces the public's interest in "accurate and effective reporting by the news media." Saxbe v. Washington Post Co., 417 U. S., at 863 (POWELL, J., dissenting). "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. . . . Abridgment of freedom of speech and of the press . . . impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government."
I find compelling these justifications for the existence of an editorial privilege. The values at issue are sufficiently important to justify some incidental sacrifice of evidentiary material.
I fully concede that my reasoning is essentially paradoxical. For the sake of more accurate information, an editorial privilege would shield from disclosure the possible inaccuracies of the press; in the name of a more responsible press, the privilege would make more difficult of application the legal restraints by which the press is bound. The same paradox, however, inheres in the concept of an executive privilege: so as to enable the government more effectively to implement the will of the people, the people are kept in ignorance of the workings of their government. The paradox is unfortunately intrinsic to our social condition. Judgment is required to evaluate and balance these competing perspectives.
Judgment is also required to accommodate the tension between society's "pervasive and strong interest in preventing and redressing attacks upon reputation," Rosenblatt v. Baer, 383 U.S. 75, 86 (1966), and the First Amendment values that would be served by an editorial privilege. In my view this tension is too fine to be resolved in the abstract. As is the case with executive privilege, there must be a more specific balancing of the particular interests asserted in a given lawsuit. A general claim of executive privilege, for example, will not stand against a "demonstrated, specific need for evidence. . . ." United States v. Nixon, 418 U. S., at 713. Conversely, a general statement of need will not prevail over a concrete demonstration of the necessity for executive secrecy. United States v. Reynolds, 345 U.S. 1, 11 (1953). Other evidentiary privileges are similarly dependent upon the particular exigencies demonstrated in a specific lawsuit. Roviaro v. United States, 353 U.S. 53 (1957), for example, held that the existence of an informer's privilege depends
In my judgment, the existence of a privilege protecting the editorial process must, in an analogous manner, be determined with reference to the circumstances of a particular case. In the area of libel, the balance struck by New York Times between the values of the First Amendment and society's interest in preventing and redressing attacks upon reputation must be preserved. This can best be accomplished if the privilege functions to shield the editorial process from general claims of damaged reputation. If, however, a public-figure plaintiff is able to establish, to the prima facie satisfaction of a trial judge, that the publication at issue constitutes defamatory falsehood,
Applying these principles to the instant case is most difficult, since the five categories of objectionable discovery inquiries formulated by the Court of Appeals are general, and it is impossible to determine what specific questions are encompassed within each category. It would nevertheless appear that four of the five categories concern respondents' mental processes, and thus would not be covered by an editorial privilege. Only the fourth category—"Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication"—would seem to be protected by a proper editorial privilege. The Court of Appeals noted, however, that respondents had already made available to petitioner in discovery "the contents of pretelecast conversations between Lando and Wallace . . . ." 568 F. 2d, at 982 (Kaufman, C. J.). Whether this constitutes waiver of the editorial privilege should be determined in the first instance by the District Court. I would therefore, like the Court of Appeals, remand this case to the District Court, but would require the District Court to determine (a) whether respondents have waived their editorial privilege; (b) if not, whether petitioner Herbert can overcome the privilege through
MR. JUSTICE STEWART, dissenting.
It seems to me that both the Court of Appeals and this Court have addressed a question that is not presented by the case before us. As I understand the constitutional rule of New York Times Co. v. Sullivan, 376 U.S. 254, inquiry into the broad "editorial process" is simply not relevant in a libel suit brought by a public figure against a publisher. And if such an inquiry is not relevant, it is not permissible. Fed. Rule Civ. Proc. 26 (b).
Although I joined the Court's opinion in New York Times, I have come greatly to regret the use in that opinion of the phrase "actual malice." For the fact of the matter is that "malice" as used in the New York Times opinion simply does not mean malice as that word is commonly understood. In common understanding, malice means ill will or hostility,
Under the constitutional restrictions imposed by New York Times and its progeny, a plaintiff who is a public official or public figure can recover from a publisher for a defamatory statement upon convincingly clear proof of the following elements:
(1) the statement was published by the defendant,
(2) the statement defamed the plaintiff,
(3) the defamation was untrue, and
(4) the defendant knew the defamatory statement was untrue, or published it in reckless disregard of its truth or
The gravamen of such a lawsuit thus concerns that which was in fact published. What was not published has nothing to do with the case. And liability ultimately depends upon the publisher's state of knowledge of the falsity of what he published, not at all upon his motivation in publishing it— not at all, in other words, upon actual malice as those words are ordinarily understood.
This is not the first time that judges and lawyers have been led astray by the phrase "actual malice" in the New York Times opinion. In Greenbelt Coop. Pub. Assn. v. Bresler, supra, another defamation suit brought by a public figure against a publisher, the trial judge instructed the jury that the plaintiff could recover if the defendant's publication had been made with malice, and that malice means "spite, hostility, or deliberate intention to harm." In reversing the judgment for the plaintiff, we said that this jury instruction constituted "error of constitutional magnitude." 398 U. S., at 10. Cf. Letter Carriers v. Austin, supra, at 281; Rosenblatt v. Baer, supra, at 83-84.
In the present case, of course, neither the Court of Appeals nor this Court has overtly committed the egregious error manifested in Bresler. Both courts have carefully enunciated the correct New York Times test. See 568 F.2d 974, 985
Once our correct bearings are taken, however, and it is firmly recognized that a publisher's motivation in a case such as this is irrelevant, there is clearly no occasion for inquiry into the editorial process as conceptualized in this case. I shall not burden this opinion with a list of the 84 discovery questions at issue.
By the time this case went to the Court of Appeals, the deposition of the respondent Lando alone had lasted intermittently for over a year and had filled 2,903 pages of transcript, with an additional 240 exhibits. The plaintiff had, in Chief Judge Kaufman's words, "already discovered what Lando knew, saw, said and wrote during his investigation." 568 F. 2d, at 984. That, it seems to me, was already more than sufficient.
In a system of federal procedure whose prime goal is "the just, speedy, and inexpensive determination of every action,"
Like the Court of Appeals, I would remand this case to the District Court, but with directions to measure each of the proposed questions strictly against the constitutional criteria of New York Times and its progeny. Only then can it be determined whether invasion of the editorial process is truly threatened.
MR. JUSTICE MARSHALL, dissenting.
Although professing to maintain the accommodation of interests struck in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court today is unresponsive to the constitutional considerations underlying that opinion. Because I believe that some constraints on pretrial discovery are essential to ensure the "uninhibited [and] robust" debate on public
At issue in this case are competing interests of familiar dimension. States undeniably have an interest in affording individuals some measure of protection from unwarranted defamatory attacks. Libel actions serve that end, not only by assuring a forum in which reputations can be publicly vindicated and dignitary injuries compensated, but also by creating incentives for the press to exercise considered judgment before publishing material that compromises personal integrity. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341-342 (1974); Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).
Against these objectives must be balanced society's interest in promoting unfettered debate on matters of public importance. As this Court recognized in Sullivan, error is inevitable in such debate, and, if forced to guarantee the truth of all assertions, potential critics might suppress statements believed to be accurate "because of doubt whether [truthfulness] can be proved in court or fear of the expense of having to do so." 376 U. S., at 279. Such self-censorship would be incompatible with the tenets on which the First Amendment and our democratic institutions are founded. Under a representative system of government, and informed electorate is a precondition of responsive decisionmaking. See Associated Press v. United States, 326 U.S. 1, 20 (1945); Grosjean v. American Press Co., 297 U.S. 233, 250 (1936); A. Meiklejohn, Free Speech and its Relation to Self-Government 88-89 (1948). To secure public exposure to the widest possible range of information and insights, some margin of error must be tolerated. Thus, absent knowing falsity or reckless disregard for the truth, the press is shielded from liability for defamatory statements regarding public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); New York Times Co. v. Sullivan, supra.
The potential for abuse of liberal discovery procedures is of particular concern in the defamation context. As members of the bench and bar have increasingly noted, rules designed to facilitate expeditious resolution of civil disputes have too often proved tools for harassment and delay.
Not only is the risk of in terrorem discovery particularly pronounced in the defamation context, but the societal consequences attending such abuse are of special magnitude. Rather than submit to the intrusiveness and expense of protracted discovery, even editors confident of their ability to prevail at trial or on a motion for summary judgment may find it prudent to " `steer far wid[e] of the unlawful zone' thereby keeping protected discussion from public cognizance." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 53 (1971) (plurality opinion; citation omitted). Faced with the prospect of escalating attorney's fees, diversion of time from journalistic endeavors, and exposure of potentially sensitive information, editors may well make publication judgments that reflect less the risk of liability than the expense of vindication.
Although acknowledging a problem of discovery abuse, the Court suggests that the remedy lies elsewhere, in "major changes in the present Rules of Civil Procedure." Ante, at 177. And somewhat inconsistently, the Court asserts further that district judges already have "in fact and in law . . . ample powers . . . to prevent abuse." Ibid. I cannot agree. Where First Amendment rights are critically implicated, it is incumbent on this Court to safeguard their effective exercise. By leaving the directives of Hickman and Schlagenhauf unqualified with respect to libel litigation, the Court has abdicated that responsibility.
The Court of Appeals extended a privilege subsuming essentially two kinds of discovery requests. The first included questions concerning the state of mind of an individual journalist, principally his conclusions and bases for conclusions as to the accuracy of information compiled during investigation. The second encompassed communications between journalists about matter to be included in the broadcast. 568 F.2d 974, 978 (CA2 1977). Reasoning that discovery of both forms of material would be intrusive, that the intrusion would be inhibiting, and that such inhibition would be inconsistent with
With respect to state-of-mind inquiry, that syllogism cannot withstand analysis. For although discovery may well be intrusive, it is unclear how journalists faced with the possibility of such questions can be "chilled in the very process of thought." Id., at 984. Regardless of whether strictures are placed on discovery, reporters and editors must continue to think, and to form opinions and conclusions about the veracity of their sources and the accuracy of their information. At best, it can be argued only that failure to insulate the press from this form of disclosure will inhibit not the editing process but the final product—that the specter of questions concerning opinion and belief will induce journalists to refrain from publishing material thought to be accurate. But as my Brother BRENNAN notes, ante, at 192-193, this inhibition would emanate principally from Sullivan's substantive standard, not from the incremental effect of such discovery. So long as Sullivan makes state of mind dispositive, some inquiry as to the manner in which editorial decisions are made is inevitable. And it is simply implausible to suppose that asking a reporter why certain material was or was not included in a given publication will be more likely to stifle incisive journalism than compelling disclosure of other objective evidence regarding that decision.
External evidence of editorial decisionmaking, however, stands on a different footing. For here the concern is not simply that the ultimate product may be inhibited, but that the process itself will be chilled. Journalists cannot stop forming tentative hypotheses, but they can cease articulating them openly. If prepublication dialogue is freely discoverable, editors and reporters may well prove reluctant to air their
It is not enough, I believe, to accord a discovery privilege that would yield before any plaintiff who can make a prima facie showing of falsity. See ante, at 197-198 (opinion of BRENNAN, J.). Unless a journalist knows with some certitude that his misgivings will enjoy protection, they may remain unexpressed. See 568 F. 2d, at 994 (Oakes, J., concurring). If full disclosure is available whenever a plaintiff can establish that the press erred in some particular, editorial communication would not be demonstrably less inhibited than under the Court's approach. And by hypothesis, it is precisely those instances in which the risk of error is significant that frank discussion is most valuable.
Accordingly, I would foreclose discovery in defamation cases as to the substance of editorial conversation.
I would therefore direct the Court of Appeals to remand this case to the District Court for determination first, whether the questions concerning Lando's state of mind satisfy the criteria set forth in Part II of this opinion, and second, whether respondents waived the privilege defined in Part III for prepublication discussions.
"1. Lando's conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the `60 Minutes' segment and the Atlantic Monthly article;
"2. Lando's conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
"3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
"4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and
"5. Lando's intentions as manifested by his decision to include or exclude certain material." 568 F.2d 974, 983 (CA2 1977).
"What effect should be given to the First Amendment protection of the press with respect to its exercise of editorial judgment in pre-trial discovery in a libel case governed by New York Times Co. v. Sullivan, 376 U.S. 254 (1964)?"
"There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous the defendant took the risk. As was said of such matters by Lord Mansfield, `Whatever a man publishes he publishes at his peril.' The King v. Woodfall, Lofft 776, 781. . . . The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else."
The Court engaged in similar analysis of the record in reversing the judgments entered in a companion case to Butts, Associated Press v. Walker, 388 U. S., at 158-159; id., at 165 (Warren, C. J., concurring); and in Time, Inc. v. Hill, 385 U.S. 374, 391-394 (1967). In Hill, the record included the edited drafts of the allegedly libelous article and an examination and cross-examination of the author. During that examination, the writer explained in detail the preparation of the article, his thoughts, conclusions, and beliefs regarding the material, and a line-by-line analysis of the article with explanations of how and why additions and deletions were made to the various drafts. As in Butts, the editorial process was the focus of much of the evidence, and direct inquiry was made into the state of mind of the media defendants. Yet the Court raised no question as to the propriety of the proof.
The Restatement originally provided in a separate section for the award of punitive damages for malicious defamations. Restatement of Torts § 1068 (Tent. Draft 13, 1936):
"One who is liable for harm to another's reputation caused by the publication of a libel or slander is also liable for punitive damages if the defamatory matter was published with knowledge of its falsity or if it was published in reckless indifference to its truth or falsity or solely for the purpose of causing harm to the plaintiff's reputation or other legally protected interest."
The provision was later omitted with the explanation that recovery of punitive damages would be determined by the rules in the Restatement with respect to damages in general. Restatement of Torts § 1068 (Proposed Final Draft 3, 1937).
Gertz v. Robert Welch, Inc., supra, at 350, limited the entitlement to punitive damages, but such damages are still awardable upon a showing of knowing or reckless falsehood.
"We have thus taken a view of the authorities which treat of the doctrines of slander and libel, and have considered those authorities particularly with reference to the distinction they establish between ordinary instances of slander, written and unwritten, and those which have been styled privileged communications; the peculiar character of which is said to exempt them from inferences which the law has created with respect to those cases that do not partake of that character. Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto. 1. That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself: justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. 2. That the description of cases recognised as privileged communications, must be understood as exceptions to this rule, and as being founded upon some apparently recognised obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence, as to such cases, is accordingly so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require of him to bring home to the defendant the existence of malice as the true motive of his conduct. Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of malice, however wicked, however express, under the protection of legal forms. We conclude then that malice may be proved, though alleged to have existed in the proceedings before a court, or legislative body, or any other tribunal or authority, although such court, or legislative body, or other tribunal, may have been the appropriate authority for redressing the grievance represented to it; and that proof of express malice in any written publication, petition, or proceeding, addressed to such tribunal, will render that publication, petition, or proceeding, libellous in its character, and actionable, and will subject the author and publisher thereof to all the consequences of libel."
"The existence of actual malice may be shown in many ways. As a general rule, any competent evidence, either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff's rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration. The plaintiff may show that the defendant had drawn a pistol at the time he uttered the words complained of; that defendant had tried to kiss and embrace plaintiff just prior to the defamatory publication; or that defendant had failed to make a proper investigation before publication of the statement in question. On cross-examination the defendant may be questioned as to his intent in making the publication." (Footnotes and citations omitted.)
Similarly, the courts have uniformly admitted such evidence on behalf of the defendant. See, e. g., Bohan v. Record Pub. Co., 1 Cal.App. 429, 82 P. 634 (1905) (testimony on good faith); Hearne v. De Young, 119 Cal. 670, 52 P. 150 (1898) (testimony on sources, precautions taken, and good faith); Ballinger v. Democrat Co., 203 Iowa 1095, 212 N. W. 557 (1927) (testimony of reporter and editor on good faith admissible); Snyder v. Tribune Co., 161 Iowa 671, 143 N. W. 519 (1913) (testimony as to source of information and good faith of reporter admissible); Courier-Journal Co. v. Phillips, 142 Ky. 372, 134 S. W. 446 (1911) (testimony of reporter on good faith); Conner v. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596 (1903) (testimony as to source of information); Davis v. Marxhausen, 103 Mich. 315, 61 N. W. 504 (1894) (testimony on good faith and proper precautions taken before publishing); Julian v. Kansas City Star Co., 209 Mo. 35, 107 S. W. 496 (1908) (testimony on thoughts and intentions at the time of publication admissible); Paxton v. Woodward, 31 Mont. 195, 78 P. 215 (1904) (testimony as to motive, good faith, and sources); Las Vegas Sun, Inc. v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958) (testimony of publisher on good faith); Lindsey v. Evening Journal Assn., 10 N. J. Misc. 1275, 163 A. 245 (1932) (testimony on good faith); Kohn v. P&D Publishing Co., 169 App. Div. 580, 155 N.Y.S. 455 (1915) (source); Hains v. New York Evening Journal, 240 N.Y.S. 734 (Sup. Ct. 1930) (source); Goodrow v. Malone Telegram, Inc., 235 App. Div. 3, 255 N.Y.S. 812 (1932) (reporter's testimony as to source); Goodrow v. Press Co., 233 App. Div. 41, 251 N.Y.S. 364 (1931) (defendant can testify and introduce evidence on his good faith at time of publication); Kehoe v. New York Tribune, 229 App. Div. 220, 241 N.Y.S. 676 (1930) (testimony on good faith admissible to prevent imposition of punitive damages); Varvaro v. American Agriculturist, Inc., 222 App. Div. 213, 225 N.Y.S. 564 (1927) (defendant may testify and introduce evidence on lack of malice); Van Arsdale v. Time, Inc., 35 N.Y.S.2d 951 (Sup. Ct.), aff'd, 265 App. Div. 919, 39 N.Y.S.2d 413 (1942); Weichbrodt v. New York Evening Journal, 11 N.Y.S.2d 112 (Sup. Ct. 1939) (defendant may testify as to good faith and probable cause); Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, 95 N. E. 735 (1911) (testimony on good faith); Cobb v. Oklahoma Pub. Co., 42 Okla. 314, 140 P. 1079 (1914) (defendant's testimony as to lack of malice and source of information); Times Pub. Co. v. Ray, 1 S.W.2d 471 (Tex. Civ. App. 1927), aff'd, 12 S.W.2d 165 (1929) (testimony as to lack of malice); Pfister v. Milwaukee Free Press Co., 139 Wis. 627, 121 N. W. 938 (1909) (testimony as to absence of malice).
None of these cases as much as suggested that there were special limits applicable to the press on the discoverability of such evidence, either before or during trial.
"[T]hey are set-up questions for our side. . . . [T]hese are not difficult questions to answer."
"The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests."
Respondents properly do not rest their arguments for an editorial privilege on the value of individual self-expression. So grounded, an editorial privilege might not stop short of shielding all speech.
"The First Amendment protects . . . a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way. . . . Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined. . . ." Free Speech in the United States 33.
Mr. Justice Holmes gave this social value a broader and more theoretical formulation:
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. . . . While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).
See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 765 (1976); Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965).
This position is often predicated upon a natural adversity between the government and the press. See A. Bickel, The Morality of Consent 80-88 (1975). In Mills v. Alabama, 384 U.S. 214, 219 (1966), for example, we stated:
"[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."
"The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth." Chafee, supra n. 2, at 31, 35.
"The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any `[r]eparation comes too late.' Linkletter v. Walker, 381 U.S. 618, 637 (1965). Instead,
" `the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . . .' United States v. Calandra, [414 U.S. 338, 348 (1974)]." Stone v. Powell, 428 U.S. 465, 486 (1976).
"In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made `within the outer perimeter' of his duties. . . . Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer." (Emphasis supplied.)
"Did you ever come to a conclusion that it was unnecessary to talk to Capt. Laurence Potter prior to the presentation of the program on February 4th?"
"Did you come to the conclusion that you did not want to have a filmed interview with Sgt. Carmon for the program?"
"When you prepared the final draft of the program to be aired, did you form any conclusion as to whether one of the matters presented by that program was Col. Herbert's view of the treatment of the Vietnamese?"
"Do you have any recollection of discussing with anybody at CBS whether that sequence should be excluded from the program as broadcast?"
"Prior to the publication of the Atlantic Monthly article, Mr. Lando, did you discuss that article or the preparation of that article with any representative of CBS?"
"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
"Lando answered innumerable questions about what he knew, or had seen; whom he interviewed; intimate details of his discussions with interviewees; and the form and frequency of his communications with sources. The exhibits produced included transcripts of his interviews; volumes of reporters notes; videotapes of interviews; and a series of drafts of the `60 Minutes' telecast. Herbert also discovered the contents of pre-telecast conversations between Lando and Wallace as well as reactions to documents considered by both." 568 F. 2d, at 982 (footnote omitted).
As an abstract proposition, it is not self-evident why disclosure of this material, for which no privilege was sought, would be less likely to inhibit the final publication than state-of-mind inquiries, which in most cases would presumably elicit self-serving responses. Indeed, as the Court acknowledges, plaintiffs may "rarely be successful in proving awareness of falsehood from the mouth of the defendant himself." Ante, at 170.
Thus, I seriously doubt that state-of-mind questions will substantially "increase the likelihood of large damages judgments in libel actions." Ante, at 191 (opinion of BRENNAN, J.). But neither can it be disputed that such questions might on occasion generate answers useful to plaintiffs in defamation suits. See, e. g., Davis v. Schuchat, 166 U. S. App. D. C. 351, 355-356, 510 F.2d 731, 735-736 (1975); Goldwater v. Ginzburg, 414 F.2d 324, 334-335 (CA2 1969), cert. denied, 396 U.S. 1049 (1970); Varnish v. Best Medium Publishing Co., 405 F.2d 608, 612 (CA2 1968), cert. denied, 394 U.S. 987 (1969).
Different considerations would, of course, obtain if a privilege for editorial communications were sought in conjunction with criminal proceedings. Cf. New York Times Co. v. Jascalevich, 439 U.S. 1331 (1978) (MARSHALL, J., in chambers); United States v. Nixon, 418 U.S. 683, 712-713 (1974); Branzburg v. Hayes, 408 U.S. 665 (1972); id., at 741-743 (STEWART, J., dissenting).