Herbert v. Lando, 441 U.S. 153; 99 S. Ct. 1635; 60 L. Ed. 2d 115 (1979)

Facts—In 1969–1970, Anthony Herbert, a retired army officer, received substantial publicity when he accused his superiors of covering up war atrocities. Three years later, a producer of a CBS program, Barry Lando, broadcast a report on Herbert and his accusations and published a related article in Atlantic Monthly. Herbert sued for defamation in a federal district court, claiming the television program and the magazine article falsely and maliciously portrayed him as a liar. He conceded he was a “public figure” and the First and Fourteenth Amendments preclude recovery absent proof that Lando had published damaging falsehoods with “actual malice”; that is, with knowledge that the statements were false or with reckless disregard of whether they were false or not. Lando refused to answer questions on First Amendment grounds involving the edito rial process and the state of mind of those who edit, produce, or publish. The district court upheld Herbert, but it was reversed in the Court of Appeals.

Question—Can a reporter accused of damaging falsehoods and injury to someone’s reputation be required to reveal his “state of mind” when preparing his material?

Decision—Yes.

Reasons—J. White (6–3). The Court is “being asked to modify firmly established constitutional doctrine by placing beyond reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of the alleged libel.  ” The Court rejects this view and “according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized or presaged by our prior cases, and would substantially enhance the burden of proving actual malice.  Courts have traditionally admitted any direct or indirect evidence relevant to the state of mind without encountering constitutional objections. Spreading false information in and of itself carries no First Amendment credentials.”