Herbert v. Lando

Supreme Court of the United States · 1979 · Torts

441 U.S. 153 (1979)

Updated July 23, 2026

TortsDefamationFirst AmendmentDiscoverylibelpublic figureactual maliceeditorial process

Facts

Anthony Herbert, a retired Army officer who had publicly accused superior officers of covering up war crimes in Vietnam, was the subject of a CBS broadcast and related Atlantic Monthly article produced or written by Barry Lando and narrated by Mike Wallace. Herbert sued for defamation, alleging the publications falsely and maliciously portrayed him as a liar and as having fabricated war-crimes charges to explain his relief from command. Because Herbert conceded he was a public figure, he had to prove actual malice under New York Times. In discovery, Herbert sought to question Lando about his conclusions, beliefs, communications, and other editorial processes, but respondents refused on First Amendment grounds.

Issue

Does the First and Fourteenth Amendments create an absolute privilege that prevents a public-figure defamation plaintiff from inquiring into a media defendant's editorial processes, thoughts, conclusions, and related communications in discovery when that inquiry is relevant to proving actual malice?

Rule

The First Amendment does not create an absolute evidentiary privilege shielding the editorial process of a media defendant from relevant discovery in a defamation action. Where a plaintiff must prove knowing falsehood or reckless disregard for truth, he may seek direct as well as circumstantial evidence bearing on the defendant's state of mind, subject to ordinary discovery limits and trial-court control under the Federal Rules of Civil Procedure.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Torres, a well-known city council member in Phoenix, sued Desert Ledger Media for defamation over an article accusing her of steering zoning decisions to friends. During discovery, she asks the article's editor whether he had serious doubts about a key source's truthfulness before publication and why he chose to rely on that source over contradictory witnesses.

Desert Ledger Media argues the First Amendment absolutely bars any discovery into the editor's thought process and source-evaluation judgments. How should the court rule?

Explanation. The majority held that the First Amendment creates no absolute evidentiary privilege shielding a media defendant's editorial process from relevant discovery in a defamation action. Where the plaintiff must prove actual malice, direct as well as circumstantial evidence bearing on the defendant's state of mind is discoverable, subject to ordinary relevance limits and trial-court control under the rules.