## Facts

- Lt. Col. Anthony Herbert, a retired U.S. Army officer and public figure, alleged that U.S. military superiors covered up war crimes in Vietnam.
- A CBS “60 Minutes” broadcast and a related magazine article portrayed Herbert as dishonest and suggested he fabricated his allegations.
- Herbert sued CBS, a CBS producer (Barry Lando), and others for defamation under diversity jurisdiction.
- Herbert conceded he could recover only by proving “actual malice” (knowledge of falsity or reckless disregard for truth).
- In discovery, Herbert sought to question Lando about his editorial decisions, internal discussions, and conclusions regarding the broadcast and article.
- Lando refused to answer certain questions, asserting a First Amendment-based privilege protecting editorial processes and state of mind.
- The district court rejected the claimed privilege and allowed the questioning; the court of appeals reversed, recognizing constitutional protection for editorial processes.
- The Supreme Court granted review.

## Issues

1. Whether the First and Fourteenth Amendments create a constitutional privilege that bars discovery into journalists’ editorial processes and state of mind in a public-figure defamation action.
2. Whether such discovery may be compelled when it is relevant to proving the plaintiff’s required showing of actual malice.

## Decision

- The Supreme Court reversed the court of appeals and reinstated the district court’s order permitting discovery.
- The Court held that the First Amendment provides no categorical privilege preventing inquiry into editorial processes and state of mind when the discovery is relevant to proving actual malice.
- The Court emphasized that the actual malice requirement necessarily puts the defendant’s knowledge, doubts, and recklessness in issue.
- The Court noted that ordinary procedural limits (relevance, burden, and judicial supervision to prevent abuse) continue to control discovery.

## Legal Principles

- In public-figure defamation actions, the First Amendment does not bar a plaintiff from obtaining discovery into the editorial process and mental state of those responsible for publication when material to proving actual malice.
- Constitutional protections in defamation law operate primarily as substantive limits on liability (including the actual malice standard), not as a press-specific exemption from ordinary civil discovery.
- Courts may manage and limit discovery under standard procedural rules, but may not create a special, categorical “editorial process” privilege grounded in the First Amendment.

## Conclusion

The Court held that a public-figure libel plaintiff may use ordinary discovery tools to question media defendants about editorial deliberations and state of mind relevant to actual malice, because the First Amendment does not create a categorical privilege shielding such evidence from inquiry.


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