Herbert v. Lando – Oral Argument – October 31, 1978

Media for Herbert v. Lando

Audio Transcription for Opinion Announcement – April 18, 1979 in Herbert v. Lando

del

Warren E. Burger:

We’ll hear arguments next in 1105, Herbert against Lando.

Mr. Lubell I think you can safely proceed now, and be heard.

Jonathan W. Lubell:

Mr. Chief Justice and may it please the Court.

This is an appeal from a decision of the Court of Appeals for the Second Circuit, reversing a discovery order of the District Court and establishing an absolute privilege of non disclosure of the editorial process.

This is a Sullivan defamation case.

It arises from a CBS 60 minutes program, produced by Barry Lando and Mike Wallace.

In that program, the plaintiff Colonel Herbert, was portrayed as a liar, as one capable of committing acts of brutality in Vietnam, as an opportunist who had used the war crimes charge to cover up his own relief from command and is a perpetrator of a hoax on the American public.

Plaintiff after the broadcast, brought the libel action which is now before this Court.

During the course of pre-trial, plaintiff sought to discover what the defendants had done and learned in the course of their investigation preparing for the program, and what the defendant’s state of mind was on the matters which they had investigated and learned about during that investigation.

Questions were posed within that context to Mr. Lando and Mr. Wallace, as to what their state of mind was, as to matters actually presented on the program, as well as matters not presented on the program, and contradictory to the matters presented on the program.

William H. Rehnquist:

Counsel, you say their state of mind as to matters?

Jonathan W. Lubell:

Yes.

William H. Rehnquist:

Could be a little more precise for what issue were you directing would those answers have been relevant?

Jonathan W. Lubell:

Yes.

The issue — the legal issue we were directed to was the issue of the subjective state of mind of the defendant’s, whether there in fact they entertained that serious doubts as to the truth of matters presented on the program.

Specifically it evolves in various contexts.

For example, during the deposition of Mr. Lando, we ascertained that he had interviewed, in one example, a group of five different soldiers and who had served with Colonel Herbert in Vietnam.

Four of those soldiers told him certain things about Colonel Herbert’s treatment in regard for the Vietnamese population.

A fifth soldier told him a contrary story.

Mr. Lando presented on the program only the statement of the fifth soldier, and failed to include on the program any reference to the statements of the four other soldiers which indicated the care and concern that Colonel Herbert had shown while he served in Vietnam.

Warren E. Burger:

One of this is directed at what, at the presence or absence of malice?

Jonathan W. Lubell:

Yes, it is.

Warren E. Burger:

That should be our focus, should it not?

Jonathan W. Lubell:

Within the absence of actual — presence or absence of actual malice within the reckless disregard branch of that actual malice definition.

William J. Brennan, Jr.:

As this Court has developed that —

You mean that there was no inquiry on the other arm of knowing falsehood?

Jonathan W. Lubell:

We had — the knowing falsehood issues, we have asked questions of Mr. Lando regarding knowledge of certain things which were directly contrary to matters presented on the program, which indicate a knowledge of the falsehood of certain malice.

In fact Mr. Lando has answered those questions.

The concrete posture of the questions which have not been answered is all of those questions appear to involve the reckless disregard branch, although our same argument would apply to his state of mind on the knowledge of the falsity.

William J. Brennan, Jr.:

Yes, but are you telling us that he did answer questions directed to knowing falsity of some of the things that were shown on the program?

Jonathan W. Lubell:

He answered questions.

William J. Brennan, Jr.:

But can you illustrate, for example?

Jonathan W. Lubell:

He answered questions for example, during the — on the program Mike Wallace stated that nobody that they interviewed could told them that Colonel Herbert had reported any of the war crimes while in Vietnam.

He produced during the depositions, sworn statements of a Captain Jack Donovan, which stated that Captain Donovan was present at Brigade Headquarters when Colonel Herbert was reporting the killings of the Vietnamese at Cu Loi on February 14, 1969.

He produced those documents.

We asked him questions about those documents.

We did not specifically ask the question, did he know that what was stated on the program was false?

So that question is not before the Court as such.

In terms of questions that he did answer during the deposition, Mr. Lando as well as Mr. Wallace did answer a number of questions involving their state of mind.

In addition, I should point out to the Court that the case —

William J. Brennan, Jr.:

Can you illustrate just that?

Do you have one?

I don’t want to take all your time, but —

Jonathan W. Lubell:

Yes, yes.

For example, as to the question — as to the questions of whether there was a conflict in the in his — in what he had obtained from interviews between a colonel and a major who were in Hawaii early in February —

William J. Brennan, Jr.:

Are you speaking now of Mr. Lando?

Jonathan W. Lubell:

Yes, Mr. Lando — in terms of he had interviewed a Colonel Nicholson and a major who had been in — a Major Crouch — who had been in Hawaii.

And one of the questions that was involved is, when did Franklin return from Hawaii to Vietnam?

Questions were asked in his interviews of these two people about — when Mrs. Franklin had left Hawaii.

I asked Mr. Lando whether he thought there was a conflict or contradiction between the information he got from these two interviewees.

He said that he thought that their statements regarding Mrs. Franklin’s leaving Hawaii were contradictory.

So he did give us certain answers regarding his state of mind.

There is no consistency as to which answers he didn’t give regarding his state of mind and which he did not.

Perhaps the only consistency is that, as the deposition proceeded, Mr. Lando’s counsel and counsel for CBS decided to take a firm position that they would answer no questions regarding state of mind.

John Paul Stevens:

Mr. Lubell, could you give us perhaps the most persuasive example you can think of, of a question that you asked and that he refused to answer?

One of the things I have trouble with in this case is, it’s awfully general.

Jonathan W. Lubell:

Yes, yes.

The questions, for example — the example that I posed before, he had interviewed a number of soldiers who had given him detailed information as to Colonel Herbert’s treatment of the Vietnamese.

He puts none of that information on the program.

He does not refer to the fact that there was information that Land — that Colonel Herbert had shown particular care that war crimes not be committed in Vietnam.

Jonathan W. Lubell:

We asked him questions as to the basis upon which he did not include any reference to those interviews in his program, and nevertheless included a quote from General Barnes that Colonel Herbert was —

John Paul Stevens:

Specifically, you question in — is this a fair paraphrase?

Why did you not include any reference to such and such an interview and he refused to answer any such questions?

Jonathan W. Lubell:

Yes, what was the — actually, we didn’t say why [Attempt to Laughter] — we said, what was the basis for not including the — any excerpts from those interviews?

John Paul Stevens:

Is that question he refused to answer?

Jonathan W. Lubell:

Yes.

In addition, we asked him for his opinions of the creditability and veracity of persons whose statements he did include on the program.

We think that was directly relevant to whether he entertained serious doubts as to matters included on the program.

We think that is —

William J. Brennan, Jr.:

Those he also refused to answer?

Jonathan W. Lubell:

Those he refused to answer too, Your Honor.

Now, when the defendants Lando and Wallace refused to answer questions in these areas of state of mind, plaintiff made a Rule 37 motion, which was brought before Judge Haight, the district court judge.

Judge Haight considered the Sullivan principles and specifically considered the burden of proof of clear and convincing evidence which applies in the Sullivan case, considered the subjective nature of the state of mind that must be proven, found that the questions which he had — which Lando in particular and Wallace to some extent, because there were very few questions open around Mike Wallace, that the questions that they had refused to answer were directly relevant to the subjective state-of-mind issue, that the issue of the subjective state of mind was a core issue in the case, and that the information as to the defendants’ state of mind could only be obtained from the defendants by the very nature of the subject matter.

William J. Brennan, Jr.:

Incidentally, Mr. Lubell —

Jonathan W. Lubell:

Yes.

William J. Brennan, Jr.:

At that stage, was there any controversy whether some of the matters shown on the “60-Minutes” program was or was not false?

Jonathan W. Lubell:

The defendants take the position that the matters presented —

William J. Brennan, Jr.:

No, I’m stating at that stage of the —

Jonathan W. Lubell:

At that stage, no.

The issue — at that stage before the District Court judge, the issue was whether the questions were privileged in terms it oppresses —

William J. Brennan, Jr.:

But the issue of falsity is —

Jonathan W. Lubell:

Falsity —

William J. Brennan, Jr.:

Very much in this case, still it was?

Jonathan W. Lubell:

The issue of falsity is in the case, very much in the case, Your Honor.

William J. Brennan, Jr.:

It still is.

Jonathan W. Lubell:

Yes, I believe it is.

I don’t think the defendants have conceded that the statements made on the program are false.

William J. Brennan, Jr.:

And was there ever any suggestion that the issue of falsity should be determined before you get into the question of malice because unless something was false, I gather you wouldn’t have a case, would you?

Jonathan W. Lubell:

Right, there was no suggestion.

As a matter of fact the discovery process has proceeded in uncovering, trying to uncover both issues simultaneously.

Jonathan W. Lubell:

And I’m sure as Your Honors appreciate both issues are intertwined because as we learned the facts, we also learn what it was that CBS ascertained.

So we also learn what CBS is — also learn some evidence of CBS’ state of mind as we learned the facts, in order to prove that the program contained serious falsehoods.

William J. Brennan, Jr.:

But on the issue of so-called editorial privilege or whatever you’re going to call this, a privilege, I take it that wouldn’t even be in the case unless there was first the finding of falsity of something about this program, would there?

Jonathan W. Lubell:

I’m not sure whether that is so because what the Circuit Court did is take this entire range of media activity, which they call the editorial process, and immunized it from discovery by a plaintiff.

Now, it is possible that in our search for the facts —

William J. Brennan, Jr.:

Well it immunized in the sense that it was privileged in some way?

Jonathan W. Lubell:

In the sense that it was privilege, we could not obtain what happened during that editorial process and I suggest that it is possible that during that editorial process, certain things may have a vision which relate to the question of truth and falsity as well.

William H. Rehnquist:

Mr. Lubell, in an ordinary lawsuit, in the discovery stage of the case, you have to do your discovery for all of the issues that you think will be necessary to prove at trial before you ever get to trial, don’t you?

Jonathan W. Lubell:

Yes.

Yes, Your Honor and that is the way we proceeded in this lawsuit that we have asked questions of Lando and Wallace and the other persons we’ve deposed, directed to the issues of truth and falsity, to the issue of actual malice, both issues.

And I don’t — I might suggest, I don’t see in this type of case how it is —

William J. Brennan, Jr.:

Avoid it?

Jonathan W. Lubell:

— as a practical matter ever able to be distinguished.

The Court of Appeals reversed Judge Haight’s —

William J. Brennan, Jr.:

Forgive me, I shouldn’t have taken so much of your time but I gather, you have allegations, I take it, do you not, on which you rely of falsity?

Jonathan W. Lubell:

Oh, yes.

William J. Brennan, Jr.:

Now, are they very — about many, many matters or —

Jonathan W. Lubell:

Yes, they are.

William J. Brennan, Jr.:

Only a few, or what?

Jonathan W. Lubell:

We maintain that the program as a whole as well as many specific matters presented in the program are false.

And as I indicated in the in my opening comments, that the falsity concerns whether Herbert was a liar, as to the cover up of war crimes in the 173rd Airborne Brigade, whether Herbert himself was capable of committing acts of brutality against the Vietnamese, whether Herbert had used the war crime issue as an excuse for his own relief from command, and whether Herbert had perpetrated a hoax upon the American people.

William J. Brennan, Jr.:

All of which, as you say falsehoods.

Jonathan W. Lubell:

All of which are falsehood.

William J. Brennan, Jr.:

Are depicted in the 60-Minutes program?

Jonathan W. Lubell:

Yes.

Yes, we say they are.

Yes, Your Honor.

I wanted to return for a moment to the question of the defendants discussing or disclosing parts of their state of mind.

There is another fact in this case, which makes it unique in another way and that is, after the program, Barry Lando wrote an article for Atlantic Monthly.

It is the other cause of action in this case which is not before this Court.

Jonathan W. Lubell:

However, the article itself is a full discussion of what was the purported editorial process in producing the program.

Not only that, but the article time and time again, speaks of Mr. Lando’s state of mind on matters that he was looking at while he was preparing the program.

So we have a situation where the press has publicly gotten a shot at saying what its state of mind is and now would prevent a plaintiff from examining the press in a lawsuit in which a district court judge can regulate whether there’s any abuse of discovery, from examining the press as to that state of mind which is critical in a Sullivan defamation action.

Warren E. Burger:

Well, here you are suggesting that, the responses where force coming as to the state of mind when it helped the defendant’s case, but not when conceivably it might harmed the defendant’s case?

Jonathan W. Lubell:

Yes, we are suggesting that.

William H. Rehnquist:

Well, it wouldn’t be the first time in a deposition that, that sort of thing had happened?

Jonathan W. Lubell:

I don’t believe so.[Attempt to Laughter]

Now the heart of our argument before this Court is that by — the Court of Appeals, by creating this editorial process privilege has upset the balance struck by this Court in Sullivan and it’s progeny because what and succinctly what the Court of Appeals has done is deprived the plaintiff of the opportunity of ascertaining direct evidence of this subjective state of mind in case, where the plaintiff has to satisfy a clear and convincing burden of proof.

In substance what the Second Circuit has done is by a rule which creates that privilege eliminated substantially all plaintiff’s possibilities that we’re recovering under insolvent principles.

And we submit that it was not the purpose of this Court in Sullivan and it’s progeny to preclude public officials or public figures from recovering for defamatory statements, when those statements will maliciously made.

The Court of Appeals relies in part upon this Court’s decision in Branzburg as well as the line of cases concerning confidential source disclosure.

We submit to the Court that the decision of the Court of Appeals is in error, when it relies upon on Branzburg and the confidential source disclosure cases.

The decision of this Court in Branzburg has provoked a great deal of discussion both from lower courts and in learning journals.

But there is one thing that is undisputed, Branzburg did not create an absolute privilege.

The decision of the Court of Appeals on the other hand creates an absolute privilege.

In addition, the plurality in —

Thurgood Marshall:

Now where do you see the line that the Court of Appeals drew, not the line that you draw, but where do you see the line?

Jonathan W. Lubell:

That the Court of Appeals drew?

Thurgood Marshall:

Yes.

Jonathan W. Lubell:

I think that, —

Thurgood Marshall:

You’re conduct your questioning where did they say you went off?

Jonathan W. Lubell:

The — I think under the Court of Appeals’ decision, I think they would say any inquiry into what the media or the press did after obtaining the interview from that time, until the time that the finished product is broadcast we could not inquire into.

We could not find out whether in fact during that time for example —

Thurgood Marshall:

Well, you say it is time and not subject matter?

Jonathan W. Lubell:

It will receive as both a period of — I think there are two aspects of the Court of Appeals’ decision and it is difficult to ascertain which one is the more powerful aspect.

We submit both are powerful in terms of upsetting solvent completely, but one is you cannot inquire into the subjective state of mind, which is —

Byron R. White:

Well, Mr. Lubell?

Jonathan W. Lubell:

Yes.

Byron R. White:

Would you think that any questions that started out, did you know would be barred by this ruling?

Jonathan W. Lubell:

Yes.

Byron R. White:

Did you know a particular fact?

Jonathan W. Lubell:

Yes, yes we believe.

We believe that would pertain to the state of mind of the reporter.

Byron R. White:

So you couldn’t inquire whether a particular fact was true or not?

Jonathan W. Lubell:

We could inquire as to who he interviewed.

We could not inquire as to whether he knew —

Byron R. White:

You could find out what he was told?

Jonathan W. Lubell:

What he was told, but we couldn’t inquire for example, as to whether he knew the person he was interviewing —

Byron R. White:

But you could ask —

Jonathan W. Lubell:

I am sorry.

Byron R. White:

Couldn’t you ask — couldn’t you ask did you ever learned that so and so?

Jonathan W. Lubell:

I believe that when Chief Judge Kaufman talked about any intrusion into the mental process of the press, I believe that he speaks of —

Byron R. White:

Why didn’t — you really read it to me that you cannot inquire from the reporter the state of his knowledge, that whether he knew a certain facts or not?

Jonathan W. Lubell:

We can inquire as to — I believe we can inquire as to what he did, but I do not believe we can —

William J. Brennan, Jr.:

You interviewed John Jones, I did.

What did he tell you?

He told me so-and-so.

Didn’t you know that John Jones have said not that but this to somebody else?

Couldn’t you ask that question?

Jonathan W. Lubell:

It is my opinion that Chief Judge Kaufman’s opinion is not clear as to whether that question is permissible when he states that any intrusion into the mental process of the reporter is precluded.

Byron R. White:

You mean you couldn’t say, were you ever told by anybody else to the contrary?

Jonathan W. Lubell:

That you could ask, I believe, Your Honor.

Byron R. White:

Well, couldn’t you go on and say, did you ever learn from any other source to the contrary?

Jonathan W. Lubell:

I think, Your Honor, you get closer to an inquiry regarding the state of mind.

I must say I believe Chief Judge Kaufman’s decision as it stands now creates several different interpretations on that issue.

Warren E. Burger:

Mr. Lubell, let me interrupt you.

You can reflect on that during lunch hour, we’ll resume there at 1:00 o’clock.

Jonathan W. Lubell:

Thank you.

[Luncheon Break]

Warren E. Burger:

Mr. Lubell, you may continue.

Jonathan W. Lubell:

Thank you, Your Honor.

In answer to the open question, so to speak, it’s difficult to give a precise answer as to what the Court of Appeals’ decision means in connection with whether questions of — whether the defendant knew of certain things would be permitted.

William J. Brennan, Jr.:

Well, you don’t have any court opinion anyway, do you?

Jonathan W. Lubell:

I’m sorry?

William J. Brennan, Jr.:

There is no court opinion from the Court of Appeals?

Warren E. Burger:

No majority?

Jonathan W. Lubell:

No, no majority opinion.

There’s an opinion by Chief Judge Kaufman who seems to indicate that perhaps you can ask questions —

William J. Brennan, Jr.:

Now, which opinions are you talking about when — what you’re about to say?

Judge Kaufman’s or Judge Oakes’?

Jonathan W. Lubell:

Well, I think the Chief Judge’s opinion at Page 40 — at 22A of the Appendix describes what plaintiff has already done in the course of discovery and states that he has already discovered what Lando knew, saw, said and wrote during his investigation.

Then subsequently, he states, now, Herbert wishes to probe further and inquire into Lando’s thoughts, opinions, and conclusions.

Byron R. White:

Well, doesn’t that imply that you can ask anything — ask him whether he knew something?

Jonathan W. Lubell:

Yes it does.

However, when you get into the question of the editorial process issue and look not only to the Chief Judge’s opinion but the concurring opinion of Judge Oakes, where he states at 42A, it is quite another — I’m sorry, it starts off, “thus, it is one thing to tell the press that its end product is subject to the actual malice standard and that a plaintiff is entitled to prove actual malice.

It is quite another to say that the editorial process, which produced the end product in question, is itself discoverable.”

Now, if during the editorial process —

Byron R. White:

Yes but if either — if there are only two people supporting the judgment of the Court of Appeals, and either one of them says that something is discoverable, it’s discoverable under that judgment?

Jonathan W. Lubell:

However, if it’s discoverable in a time period that might be described as the editorial process time period, which both of the opinions say cannot be inquired into.

For example, if we were to ask whether during the —

Byron R. White:

Well, you can ask — I would think it would be a fair implication from what you read a moment ago that you could say when you went into this process, did you know it and when you came out of the process, did you know it?

Jonathan W. Lubell:

What — I don’t — I think we possibly could ask that.

However, what we could not ask is what it is he knew or came to know during that process.

For example what if Mike —

Byron R. White:

Well, I know, but if he came out of it knowing it, he learned it somewhere?

Jonathan W. Lubell:

The problem is, we wouldn’t know what is is he came out with knowing.

Byron R. White:

Well, you would ask him a particular question, did you know so-and-so?

Or, did you not know so-and-so?

Jonathan W. Lubell:

We would have to ask him every — knowing every issue on every aspect of the case, we would not be able to —

Byron R. White:

Well, how else do you prove a lawsuit?

Jonathan W. Lubell:

But we would not be able to find out what — how it is that he came to know something.

For example, what if during the process, Mike Wallace said to Barry Lando or somebody else from CBS said to Barry Lando, I went in to this person who’s involved in your program, who you’ve interviewed, and he tells me something which is contrary to what he told you.

This is during the editorial process, the conversation within CBS.

Byron R. White:

But You think that the — then in this judgment you could not ask where you ever told something to the contrary?

Jonathan W. Lubell:

I think that it’s possible that the defendants could raise the question that if it was told to the defendants during the editorial process by —

Byron R. White:

By somebody on the within the editorial process?

Jonathan W. Lubell:

In the course of the editorial process yes Your Honor.

I think —

Byron R. White:

But if it were told him by some outsider, you could inquire into that?

Jonathan W. Lubell:

It may well — I can’t say, I would argue obviously if it came up in the District Court, I would argue if you could, but I don’t — I cannot say with confidence that, that answer is supported by the two decisions which form the majority.

Warren E. Burger:

Well assuming now Mr. Lubell the question suggested by Justice White has been answered, in that he has had two statements made to that are not consistent.

Under this opinion or of these collective opinions, do you think you cannot ask why did you publish this and why did you omit that?

Jonathan W. Lubell:

No, I do not think and it would be quite clear on this, I do not think we could ask that.

What we cannot ask is what did he think about what he learned, or what he knew.

For example and this I a concrete example in this case —

Byron R. White:

You can ask whether he thought it was true or false?

Jonathan W. Lubell:

That’s right, that’s right.

I do not think we can ask that question.

For example he interviewed —

Byron R. White:

And you can’t ask whether he thought some witness was truthful or not whether he was telling a falsehood or not?

Jonathan W. Lubell:

We can’t — that’s right and also we can’t answer whether —

William J. Brennan, Jr.:

In other words, you can’t say did you believe them?

Jonathan W. Lubell:

Or did you think you had to check it further.

For example he interviewed an assaulter by the name of the name of Bob Stanley.

The defendant produced notes which they have to check with Stanley further.

William J. Brennan, Jr.:

Certainly you have no problem about those sources here, did you in this case?

Jonathan W. Lubell:

No, in fact there was a question of sources which was then waived by CBS, there is no source problem in this case.

I would like to say I see that white light is on, i want reserve a little time for rebuttal, but I did want just focus on the Branzburg analysis by the plurality of this Court, plus Justice Powell’s concurrence in Branzburg, as it was further elucidated by the Justice in Footnote 3 in Gertz that the proper approach to questions of discovery where the First Amendment is implicated is a case by case approach, with questions of specificity relevance in materiality, importance to the court issues of the case explored by the district judge.

And district judge Haight in this case did explore those issues, and did attempt to, and came to conclusions giving due care and consideration for the First Amendment values.

What he did not do and apparently what the respondents complain of, he did not established a privilege by which the defendants can refuse to answer questions involving their subjective state of mind, the very issue in a Sullivan case.

Jonathan W. Lubell:

I would reserve to this of my time thank you.

Warren E. Burger:

Mr. Abrams.

Floyd Abrams:

Mr. Chief Justice and may it please the Court.

I would like to start if I may my outlining briefly what we considered at the time and still consider the vice of the District Court opinion and then to proceed to the opinion of the Court of Appeals and some of the questions which members of this Court have addressed, to Mr. Lubell.

The crux of the District Court opinion, Mr. Lubell to the contrary was not that the questions asked went to the core of the case, and it was not that the questions asked provided information which could only be obtained from the journalists involved.

Those were not findings of the District Court and indeed as I read the District Court opinion they are inconsistent with the findings of the District Court.

The District Court concluded as a matter of law that the concept of editorial process which we urged upon him, stemming from cases of this Court such as of the Miami Herald case, had nothing to do with the question of the scope of pretrial discovery in the Sullivan case.

At that —

Warren E. Burger:

How does Miami Herald bear on this case?

Floyd Abrams:

Our argument Mr. Chief Justice is this.

We think that what the court establish in the Tornillo case was, that it’s now it was of course of the right of reply statute was unconstitutional, but broader than that, we think it established a First Amendment proposition, that at least to close inquiry into the editorial process of a newspaper or in this case a broadcaster, is itself barred or at least presumptively barred under the First Amendment.

If it I can give you a hypothetical; if Florida had respondent to this courts ruling in the Tornillo case, by passing a new statute requiring that a newspaper which did not print an answer have to disclose why it didn’t print an answer.

Warren E. Burger:

Yes, but that wasn’t involved in the Miami herald case —

Floyd Abrams:

Absolutely not.

I am not, Your Honor I am not urging that —

Warren E. Burger:

— probably beyond that?

Floyd Abrams:

I am without question or going beyond that case, what I am saying is that it does seem to us that the underlying theory of that case ought not to be limited to right of reply statutes any more than you would limit I think, Mills versus Alabama to limitations on what occurs on election day, and what can be printed by a newspaper on election day.

We think what the court should do, but it has not yet done, and this was the first case since Tornillo in which this is raised, excuse me and what we think the Second Circuit concluded as well as that the underlying basis of Tornillo is not alone.

That right of reply statutes are unconstitutional, but that the choice of material by editors to go in newspapers are on broadcast, the treatment of material to go and the nature of content, as at least presumptively protect to just as I think it would be, if in the Florida case, the Florida legislature, again in the hypothetical.

If the Florida legislature, after your ruling has subpoena to the editor of the editor of the Miami Herald and asked him the very questions, the very questions asked of Barry Lando in this case, in affect why did you print this and not that?

What was the nature of your editorial decision making?

I do not suggest that this is what the Court held in Tornillo, of course it did not.

But we do think that it is consistent with Tornillo and that the kind of dedication to the notion of editorial process protection which is embodied in Tornillo itself, ought to be embodied here as well.

I think I can best illustrate it by reference to Mr. Lubell’s answer to Mr. Justice Stevens earlier in which he was asked what’s the best example that you’ve got.

What is that you are really loosing?

What kind of questions aren’t being answered here and Mr. Lubell gave an example which I think is a fair example, of a situation in which a particular individual was interviewed on the program.

On the page reference, if the Court wishes to see it later, is at 53(a) of the appendix and this person who had served with Colonel Herbert in the army, Bruce Potter by name, said on the program, that he was in a helicopter with Colonel Herbert and that in the helicopter next to Colonel Herbert, Colonel Herbert had suggested by thrusting a prisoner of war towards the open door of the helicopter, that he might throw him out.

And the Colonel Herbert had as well thrown Sand bags out to suggest to people on the ground, a prisoner on the ground that, there were people being thrown out of planes and that therefore they should talk, and that’s what Bruce Potter said.

Warren E. Burger:

Do you think that’s an unfair strategy in war?

Floyd Abrams:

Your Honor I don’t think it’s defamatory, it is their position that, that is defamatory per se.

Floyd Abrams:

I don’t think that even states a cause of action to say Colonel Herbert is quote “capable of brutality”.

Warren E. Burger:

Well, in this if the statement were false and that it was known that it was false, then it might be, would it not?

Floyd Abrams:

I don’t think it would be defamatory even then in times of war.

William H. Rehnquist:

That’s a question of New York law?

Floyd Abrams:

I am sorry sir.

William H. Rehnquist:

That’s a question of New York law.

Floyd Abrams:

Yes, yes that’s a question of New York law, and I think New York law is to some extent at least has been constitutionalised as to what is defamatory.

This Court hasn’t yet ruled on the scope of First Amendment protection, if any, in terms of the definition of what is defamatory, but there is a second circuit ruling which so holds —

Warren E. Burger:

Would you agree that Mr. Abrams is that under in New York Times and Sullivan malice is a state of mind?

Floyd Abrams:

Your Honor I fully agree that in order to prevail a plaintiff in a New York Times versus Sullivan case must either prove that in this case, CBS knew what it was broadcasting was untrue or broadcasts with reckless disregard of truth or falsity meaning with serious doubts has to —

Warren E. Burger:

The question —

Floyd Abrams:

I don’t dispute that at all.

Warren E. Burger:

It is the question then in the cases how the plaintiff finds that out, is that not so?

Floyd Abrams:

I think the plaintiff finds it out Your Honor first of all that it kind of material he was given.

There was extraordinary amount of production in this case.

I don’t want to limit it or argument that I just did in this case, but I think that Judge Kaufman’s opinion is clearly informed by what it is that the plaintiff had in this case.

And if I may say so there is no suggestion at all in any opinion of any court in this case, if there was a selective production for the purpose of making CBS look any better and what judge Kaufman said.

Byron R. White:

I gather from that what judge Kaufman said that he wasn’t indicating that the plaintiff would be limited in finding out what information the newspaper had.

Floyd Abrams:

Exactly Mr. Justice White, here —

Byron R. White:

And except perhaps what the individual reporter may have learned during the process?

Floyd Abrams:

Perhaps that and even that was not —

Byron R. White:

But in terms of out – of what information he had from outside —

Floyd Abrams:

All questions that were asked about —

Byron R. White:

What did you learn or what did you know?

Floyd Abrams:

What did you learn or what did you know?

Who did you talk to?

Who did you interview as judge Kaufman said the form and frequency of communications with sources, including transcripts of interviews.

William H. Rehnquist:

What about a question?

What did you believe as the Mr. Justice Brennan said when you were told that, what was your reaction?

Floyd Abrams:

Well, that I think Mr. Justice Rehnquist gets a lot closer to what answers were not given in this case.

William H. Rehnquist:

Well, but that’s a real problem for plaintiffs in cases like this that’s having in my own practice been a party on both sides to fraud cases and defamation cases, you don’t get admissions out of defendants mouths that they lied, you have to go after them in tangential ways?

Floyd Abrams:

You are right.

If to refer the questions involved here, I will assert to you at least that there are setup questions for our side.

These are not difficult questions to ask.

We may be right or wrong on the principle that we assert to you today about First Amendment protection, but these are not difficult questions to answer.

These are questions were, “were you interested in showing a balanced view point as to Colonel Herbert’s treatment of the Vietnamese?”

Now, no — at least in my experience, I don’t know anybody would have much trouble responding to that kind of question.

Now, that may or may not implicate editorial process.

Editorial process may or may not be protected, and we think it is, and we think that’s it.

But I think it’s very important and I have just been asked as well how is the plaintiff to prove this case?

Well, what does the plaintiff have to do?

What kind of evidence can he have and our answer to that question is that the plaintiff is to prove his case first by all of the facts, all of the objective facts.

What happened?

Who did he interview?

What did he know and what was really happening?

If the program is wrong, if there are people on the outside who will come in and testify, that it is not true, that certain things occur and that for some reasons CBS knew that it wasn’t true.

What would be more prohibitive than that and that’s the way you prove the security’s case.

Warren E. Burger:

How do they find out what’s CBS?

Knew except by asking them?

Floyd Abrams:

Those questions have all been answered, Your Honor.

There is really no dispute in this —

Warren E. Burger:

You concede then —

Floyd Abrams:

Yes sir, but there is —

Warren E. Burger:

— when you ask the CBS representative when you said this, did you know ‘A,’ ‘A,’ ‘A?’

Floyd Abrams:

All the questions about, what CBS knew have been answered.

What have not been answered are questions which as judge Kaufman characterizes a small number of questions relating to his beliefs, opinions and intent and conclusions and preparing the program.

Now, I would concede —

Byron R. White:

And you are saying he shouldn’t be asked, he shouldn’t be required to answer, did you know he was a liar?

Floyd Abrams:

That’s right.

Byron R. White:

Or he was telling the falsehood or something?

Floyd Abrams:

Yes.

Let me say that if he will ask the question and he was not, did you believe what was on the program, and there are no such questions at issue here, we would not have objected and I do not read the opinions —

Byron R. White:

Would you have objected to a question —

Floyd Abrams:

No, Sir.

Byron R. White:

— of at the time you had this interview with this particular source, did you believe him?

Floyd Abrams:

I think that, that falls within the area of protected information, Your Honor.

Let me say that I think, that one could make and rather easily make some gradations of protection here.

To the extent that one takes as, one’s load star here a notion of — and I appreciate the fact that it is necessarily and amorphous, a developing concept to editorial process.

What is most important is what was on the program and what was off the the program and it seems to me that the single most protected thing in this area are questions such as Mr. Lubell referred to earlier which is why didn’t he put the four people on, who had good things about Colonel Herbert.

Now, that it seems to me goes to the absolute core of what should be protected in this area.

William J. Brennan, Jr.:

But why does — did you believe him?

Why does that also go to that absolute core?

Floyd Abrams:

It — I am sorry Mr. Justice —

William J. Brennan, Jr.:

Why does that go to the absolute court?

Floyd Abrams:

Let me say, I was distinguishing, I meant to distinguish between the example that I just posed and the did you believe question, which it seems to me is necessarily a step away.

As I have said we have not urged —

William J. Brennan, Jr.:

I know but, didn’t I understand you to answer my brother White that did you believe him would be —

Floyd Abrams:

We think that, that should fall as well —

William J. Brennan, Jr.:

Why?

Floyd Abrams:

Within the area.

William J. Brennan, Jr.:

Why?

Floyd Abrams:

Because it seems to me that, that’s a probe that deeply into the mind of the journalist is first of all not necessary in order to allow the plaintiff to prove his case.

It is not the kind of question which is historically led so far as I know any plaintiff to win a libel case governed by New York Times against Sullivan.

And I think that, and this is the question before you, I think that to make the journalist answer the question, not about did you believe what was on the program —

William J. Brennan, Jr.:

How about the question Mr. Abrams not that you believed him.

Didn’t you know that he had told a different story to John Smith, how about that?

Floyd Abrams:

That question wasn’t ask and —

William J. Brennan, Jr.:

I know but what about it, is that within or outside the protective code?

Floyd Abrams:

I will think that questions as to what the journalist knew are questions which he ought to answer, but it seems —

Byron R. White:

Even though it too involved some sort of cognition?

Floyd Abrams:

Some sort, but it seems to me that there aren’t any kind of grade scale that — as you go down that road, at the end of it at least, is why didn’t you put these four people on, who said something good about Colonel Herbert.

Byron R. White:

But at least you I gather you would think that he could be asked, were you told us something to the contrary by somebody?

Floyd Abrams:

Yes, yes.

Byron R. White:

And —

Floyd Abrams:

There’s is no objection —

Byron R. White:

And then you would be say — and you did not put this on the program?

Floyd Abrams:

Yes, and there was no objection to any such questions.

Thurgood Marshall:

Mr. Abrams, assume this went to trail, you couldn’t then ask him whether he believed it or not?

Floyd Abrams:

If an objection were made Mr. Justice Marshall by the defendant in this case, any question that was objected to, it seems to me could not be testified affirmatively to by the press.

Thurgood Marshall:

I am talking about at the trial, you say that you believe it when he told you that?

Floyd Abrams:

I think that if we object to any question on this basis at pre-trial, we could hardly be the ones to introduce evidence to that effect at the trial.

Thurgood Marshall:

I didn’t say —

Floyd Abrams:

I am sorry —

Thurgood Marshall:

I said this same man —

Floyd Abrams:

Yes.

Thurgood Marshall:

— Mike Wallace is on the witness stand and if he asked in particular phase in your did you believe that man for telling the truth?

Floyd Abrams:

We have taken the decision Mr. Justice Marshall, that all questions are proper as to what was on the program that is to say, did you believe so and so insofar as what he said on the program we think is a proper question and we would not have objected to such questions.

Thurgood Marshall:

No I am talking about did you believe him when he told you?

I can’t get this line between the two?

Floyd Abrams:

If it was broadcast on the program, my answer to you is yes.

Thurgood Marshall:

For example I know what the answer would be but I assume you say that he couldn’t answer the question, did you do this with the reckless disregard?

Floyd Abrams:

Well —

Thurgood Marshall:

You have to say you couldn’t ask him that question?

Floyd Abrams:

We think that Justice Marshall that question —

Thurgood Marshall:

You wouldn’t object to it because you would know what the answer would be?

Floyd Abrams:

I know what the answers would be to all of these questions.[Attempt to Laughter]

William H. Rehnquist:

But that’s the ultimate issue in the case of the New York Times against Sullivan what justice Marshall was asking, isn’t it?

One of the ultimate facts that a jury has to determine is whether he did that with reckless disregard to the two?

Floyd Abrams:

That’s right — and what I said is that, we have not — Mr. Lubell has not asked these question, but we would not have objected it and we do not maintain that the privilege that we seek here protects against a response to the question about whether anything that was on the program was believed by the journalist or was known by the journalist to be untrue.

That it seems to me is, if nothing else waived by the very fact of putting it on the program.

Floyd Abrams:

What we are concerned with here is, questions as to the selective process of inclusion and exclusion and particularly the material that was excluded from the program.

William H. Rehnquist:

Well, I have thought — moved over — you said a question about belief in the truth of something could not be asked?

Floyd Abrams:

But when I concluded from that Mr. Justice Rehnquist was a question as to the belief of material which was actually broadcast on the program.

And what I have said is that — that which is broadcast on the program or printed in the newspaper, it seems to us is material which the journalist ought to be prepared to respond to.

Where we start to differ is that material that was either not broadcast on the program or beliefs, conclusions about witnesses in general, not about, particular material.

William H. Rehnquist:

Well, that amounts as though the soft pitches you can hit and the hard ones you can duck?

Floyd Abrams:

Well, Your Honor, there are no — I ask you to look at the questions here, that’s not a question I couldn’t answer.

William H. Rehnquist:

I know but in — but the kind of questions that you say are not answerable and to go further in the process, certainly no producers is going to say, I didn’t believe what I put on the program, but if you go further back in the process and say what did you think after you learned that ‘X’ said such and such, you may get a string of answers that may permit a jury to infer that he didn’t believe it.

Floyd Abrams:

Well, it seems to me Mr. Justice Rehnquist that it would be a very rare liable case indeed.

If the kind of answers that you would get to kind of questions that you raise or the kind of questions asked here, did you consider doing something that you didn’t do, these are not difficult questions, at least in my experience.

I think in the St. Amant case, this Court indicated by way of illustration I think, but indicated the kinds of ways to prove reckless disregard.

And the kind of examples that the Court gave there were where the story is fabricated, where the story is a product or the reporter’s imagination, where the story is based upon an unverified, anonymous telephone call, where the publisher’s allegation is so inherently improbable that only a reckless man would have put them in circulation, where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports, we are providing all the objective information from which those kinds of things, and more can be determined.

Warren E. Burger:

Now you’ve emphasized — you’ve emphasized objective, Mr. Abrams, in a number of your responses.

At least three places I observe in the Sullivan case, the Court refers to malice as a state of mind and I gathered earlier you did not — you have no quarrel with that, that malice is a state of mind?

Floyd Abrams:

That’s correct.

Warren E. Burger:

How do you probe for the presence or absence of malice if you can’t ask what was the state of mind at the time this or that was done?

Floyd Abrams:

It seems to me, Your Honor, that the way it has been done in libel cases, and the way it is routinely done in criminal cases, and security’s act cases, and antitrust cases, is for a jury to infer a particular state of mind from a particular set of facts.

Warren E. Burger:

Well, let’s take a criminal case for example, and the defense is self-defense.

You wouldn’t suggest, would you, that you can’t ask the prosecutor, once the defendant has taken the stand asserting self-defense, that he can’t cross-examine him without limit on his state of mind with respect to —

Floyd Abrams:

I think once the defendant takes the stand in that type of situation, and to the extent that that’s a relevant issue, he certainly can.

But the fact —

Warren E. Burger:

Wouldn’t the state of mind be relevant to self-defense?

Floyd Abrams:

Yes, sir, it would.

What I’m saying is that in a more standard, or another criminal example would be whether the defendant doesn’t take the stand —

Warren E. Burger:

Well, or course, you can’t prove his state of mind if he isn’t there?

Floyd Abrams:

But the question before you is, are we entitled not to respond to certain questions?

And I think that that is the analogy to the defendant who has respects to — who does not make a self-defense argument, but simply puts the prosecution to its proof and in that type of situation —

Warren E. Burger:

But in a civil case, you can’t do that, can you, you must take the stand?

Floyd Abrams:

Unless you are — you must take the stand.

But unless you are privileged not to respond to certain questions, and that is indeed the question before you.

Warren E. Burger:

Well, do you suggest that privilege of a reporter is different from the privilege of some other witness?

Floyd Abrams:

Well, it seems to me, Your Honor, that this will take a moment or two, because it seems to me that the Court is yet to rule on whether the Gertz case, first of all applies alone to the press and the media or to other entities and so that would be a threshold ruling for the Court to make as to whether there is any different treatment under libel law, or under slander law.

If the treatment is the same, it seems to me, Your Honor, that there are special reasons why reporters need this protection.

I do not take the position that individual speakers cannot get the protection.

I don’t think that’s before you, but it does seem to me that in fact the only people that engage in the kind of process we’re talking about here tend to be journalists.

I suppose I could conceive a situation where that were not true, but certainly on a regular basis —

Warren E. Burger:

But there are many libel cases brought against people who have nothing to do with journalism, aren’t there?

Floyd Abrams:

There are manly libel cases, and Your Honor, it is our position that the only open question is whether this protection ought to go to the “press,” including a lot more than journalists — or to the press and speakers as well —

Warren E. Burger:

Well then now let’s narrow it down —

Floyd Abrams:

— or to the press and speakers as well.

Warren E. Burger:

— let’s narrow it down to two different kinds of defendants in libel cases, one is a media reporter and one is just another taxpayer who happened to —

Floyd Abrams:

Write a book or a —

Warren E. Burger:

No, just make some very bad statements about someone, not a writer?

Floyd Abrams:

Oh, I’m sorry.

Warren E. Burger:

Just another citizen who is not — doesn’t purport to be a professional writer.

Floyd Abrams:

Right.

Warren E. Burger:

You think there is a difference in the scope of probing the mind of the one from the other?

Floyd Abrams:

I’m saying the first thing I would have to know, Your Honor, is whether New York Times against Sullivan protects the individual in that type of situation and what I was observing is that I don’t think this Court has yet ruled on the question of whether the Sullivan case does afford such protection.

If it does, it seems to me that there are particular reasons why the press needs this protection because of the nature of the process it is engaged in, the regularity of it and the like, but that I certainly wouldn’t oppose it for anyone else.

It seems to me that you often get cases before you, which have peculiar applicability to one or another body of life in the country.

The Tornillo case is one.

It may not be just a press case, but it is unlikely to arise in the context of a statute requiring individuals to speak in reply to things that other people have said and I think that that’s the same proposition here.

You need not say, and we don’t urge you to say, that the First Amendment protection that we think exists here, and should exist here, is limited to the press.

But in all candor, I have to tell you, I don’t know that it will often arise in situations which don’t involve the press or writers or people who are engage in the kind of process which CBS News, in this case, has in fact engaged in.

Warren E. Burger:

Do you know of any case, none in this Court of course, but any case in any court which has put a limit on the cross-examination of the witness when the issue is malice, whether it’s a murder case or whatever kind of case it may be?

Floyd Abrams:

Well, the only type of situation is that — I’m trying to think of cases where malice is in fact at issue.

Our case here is the first libel case on one side or another which relates to this question.

Insofar as criminal cases are involved, they wouldn’t really involve malice.

I can’t think offhand of an answer.

Byron R. White:

Well, any kind where an intent, where any kind of a fraud case, civil fraud case?

Floyd Abrams:

Yes.

Byron R. White:

In a 10(B)(5) case, now, how about that?

Floyd Abrams:

10(B) — I was limiting my answer to the question of malice but in terms of intent —

Byron R. White:

Well, state of mind.

Floyd Abrams:

State of mind or intent is routinely proved in 10(B)(5) cases by reference to what the person did and what the person knew.

Kw But you wouldn’t suggest that there shouldn’t be cross-examination about his state of mind?

No, I would not suggest that and I have no reason to think of that is constitutionally privileged.

Byron R. White:

While I’ve got you interrupted, I take it that your submission here is not just that the state of — that there should be no inquiry into state of mind, but there shouldn’t be any inquiry into the editorial process, the decision-making process, and for example, you would say that it would be an improper question to say, what did another one of your editors tell you?

Floyd Abrams:

I think as a general matter, certainly.

Byron R. White:

Or what did you tell one of your senior editors?

Any conversations in that process?

It’s sort of similar to sort of an executive privilege claim.

Floyd Abrams:

Yes, it is indeed one of the analogies that we urge on you in our brief is that of executive privilege, is that indeed as the Court observed in the Nixon case, that human experience teaches us that people will speak less freely in that type situation if they know that what they’re going to say is going to be exposed to public dissemination.

There are similar rulings with respect to far lower-level people in the Executive Branch, the mental processes of which are at least generally barred from disclosure.

Similar rulings under that speech and debate clause —

Byron R. White:

Well, sometimes what happens with the government when they claim the privilege is what the government’s interest — if they want to claim the privilege, they must give up the interest.

In a criminal case, for example —

Floyd Abrams:

In a criminal case, that is correct.

Byron R. White:

If they claim — they want to claim a privilege, I mean they have to dismiss the prosecution and if the government wants to pursue someone civilly and still claim a privilege for some information they have, they may not be able to press their claim very far.

Floyd Abrams:

I appreciate that.

I think that would be a high price to put on this privilege, if you should sustain the privilege.

Warren E. Burger:

It’s true in civil cases, is it not in Federal Tort Claims cases against the government, one of the classic cases in this Court?

The government said they could not respond about all the gadgetry and things that were in the experimental plane because this would give away national secrets.

And so the courts said, if you can’t respond, then the court will presume the worst and enter judgment against the government on that.

Floyd Abrams:

Well, our position here, Mr. Chief Justice, is not that we cannot respond, but that you ought to rule that we need not respond, and —

Warren E. Burger:

Well, or course, theoretically, the United States could have told the court in Philadelphia in that case that, no, we will not respond because this is a national security matter, which is about what it did, then the court said, if you don’t respond, we’ll enter judgment against you, we’ll presume the worst.

That’s the effect of it.

Floyd Abrams:

If that were the nature of any privilege granted by the Court in this area, it would not be very expansive.

Thurgood Marshall:

Mr. Abrams, let’s get a way — away from this case.

The reporter has a transcript of a trial in California, and he selects out of it portions to read them on his television show.

Thurgood Marshall:

Could you ask him about what discussions he had with people about which one of those portions he should read?

Floyd Abrams:

He can certainly have the whole transcript at the outset, in order to make judgments based on that.

Thurgood Marshall:

Right, and he picks and chooses?

Floyd Abrams:

Yes, and if the process —

Thurgood Marshall:

And he does that with discussion with other people in his office?

Floyd Abrams:

It seems to me, Mr. Justice Marshall, that those kinds of discussions in the office, as opposed to the facts of what he had, what he knew, and what he did, should indeed be protected and it seems to me that the precise analogy to that is, in fact, the executive privilege cases and the variety of other cases about the nature of discussions in situations like that.

At the very least, it is our view that they should presumptively be protected, and that if they’re to be overcome, they should be overcome in very rare circumstances.

One of the worst problems with this case is that the effect of it is that —

Thurgood Marshall:

Well, where do you get the chilling there, who gets chilled?

Floyd Abrams:

Well, it seems to me that what is —

Thurgood Marshall:

Who gets chilled?

Floyd Abrams:

What is chilled are the people who speak to each other in the newsroom, aware —

Thurgood Marshall:

They get chilled, reporters get chilled?

Floyd Abrams:

Oh, Mr. Justice Marshall, I am not suggesting that this has happened.

On the other hand, I know of no case in which discovery has gone on for 26 days and 2900 pages in a libel case.

If this case is lost, Mr. Justice Marshall, or if I may say so, if there is no protection at all here, I think it fair to predict that questions like this will, for the first time, become routine, that public officials and pubic figures, the very people set out by this Court in Sullivan as being, for a variety of societal reasons, people who will receive less protection against defamatory falsehoods than other people, will be able to commence libel actions and immediately plunge into the core questions at issue here, why did you write these bad things about me?

Why didn’t you put on the good things about me?

Byron R. White:

Of course, this never happened under the old libel law?

Floyd Abrams:

It never did, I don’t want to follow that up, but it never did.

William H. Rehnquist:

Well, before 1965, it happened all the time, before New York Times against Sullivan?

Floyd Abrams:

Not state of mind inquiry because at that point the test was wholly truth or falsity, was it privileged under Sullivan statement.

William H. Rehnquist:

How about for punitive damages?

Floyd Abrams:

For punitive damages, it sometimes came up in very specific and narrow circumstances, not questions as to why certain material was included and excluded.

Punitive damage questions were historically the questions about, what did you think of him?

What was your —

William H. Rehnquist:

Was there actual malice?

Floyd Abrams:

Yes, actual malice in non-constitutional terms.

William J. Brennan, Jr.:

Mr. Abrams, what of Mr. Lubell’s comment on editorial process, all of that’s been revealed in Mr. Lando’s article in the Atlantic Monthly?

Floyd Abrams:

Well, first —

William J. Brennan, Jr.:

As it applies to this case.

Floyd Abrams:

I don’t think it so, Your Honor.

I have read the article.

There’s been no finding —

William J. Brennan, Jr.:

I haven’t seen it.

Is it in the record here?

Floyd Abrams:

Yes sir.

There’s been no finding by any lower court that that is the case.

If there is a waiver problem here at all, either by virtue of the Atlantic Monthly article, or by virtue of any answers which were inadvertently given in the course of the 26 days over which this was spread.

It seems to me that’s something for the district court to deal with.

We are not taking the position that there is no such thing as waiver.

Warren E. Burger:

Let me ask you just one more question about your reference to discussions within the publisher’s establishment.

I was just focusing on the language of the opinion in New York Times against Sullivan, and let me read it to you.

Finally, there is evidence that the Times published without checking its accuracy against the news stories in the Times own files, you remember that was an ad, not a news story.

The mere presence of the stories in the files does not, of course, establish that the Times knew and the Court put that word in quotation, “knew” that the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times organization, having responsibility for the publication.

Now how would you get at that if you couldn’t ask these people what was in their minds at the time?

Floyd Abrams:

You would ask the person in charge of advertising acceptability at the New York Times, what did you know?

Did you look at the files?

What was in the files?

Warren E. Burger:

How about the editor, to ask him what was in the files?

Floyd Abrams:

Well, let me say first, Your Honor, that the files here have been turned over.

So insofar as the files as such are concerned — and they objectively reflect what is at issue that can be obtained.

What cannot be obtained are directly by way of questions, in our view when I think in view of both Judge Kaufman and Judge Oakes, are the individualistic, tentative, probing, conclusions, musings, whatever, of journalists as they go about their job.

But all the objective questions as to what was there, what happened, what happened next, what didn’t they look at, what did they look at, that’s what was lacking in New York Times against Sullivan for the plaintiff to have —

Byron R. White:

Or any conversations whatsoever in the editorial process?

Floyd Abrams:

Are what?

I’m sorry.

Byron R. White:

Or any conversations in the editorial process may not be inquired into?

Floyd Abrams:

It seems to us that conversations —

Byron R. White:

That’s a considerably different kettle of fish than just talking about state of mind?

Floyd Abrams:

Well, that is — it is a different area, Your Honor, it is and it seems to us that that also should be privileged, but that the policy basis for some of these are somewhat different and I tried to set forth but they aren’t.

Warren E. Burger:

I get a hint from some of the things, at least between the lines of your argument Mr. Abrams, that perhaps some misreading of the opinions has taken place.

Is that a reasonable conjecture on my part?

Floyd Abrams:

Misreading of the opinions by —

Warren E. Burger:

Of the opinions of the Second Circuit, that some people may be misreading them.

Floyd Abrams:

I think that to the extent that — yes.

Yes, I think that this is true.

That it is certainly misread if it is read as an end to libel law, and it is misread if it is read as a total, absolute privilege in every case which could conceivably be characterized as “editorial process.”

I don’t think that’s what it says, and I don’t think that’s what either Judge Kaufman or Judge Oakes have to say.

John Paul Stevens:

Mr. Abrams, before you sit down, when you started, you called my attention to page 53 (a) of the appendix.

Floyd Abrams:

Yes.

John Paul Stevens:

Why did you do that?

Floyd Abrams:

I started to respond to a question that you had asked Mr. Lubell.

John Paul Stevens:

I’d be interested in your response.

Floyd Abrams:

Starting about halfway down on page 53 (a), there was an interview on the program with Bruce Potter, and that was, I think what Mr. Lubell was adverting to earlier and I described it briefly about how Mr. Potter said that in his presence Colonel Herbert had thrown a sandbag out and as well had made threatening gestures towards a prisoner of war.

Mr. Lubell’s examples was that example, and what he said to you was that there were four people on the other side.

What I wanted to say in response to that was, first as a matter of fact, the four people were not on the helicopter and had nothing to say as such about what happened there.

But what they did say were good things about Colonel Herbert in terms of his desire to care for, to be compassionate towards prisoners of war and they were not on the program.

Although what was on the program was a statement of Mr. Wallace, saying in so many words, that there are people who they had interviewed, who CBS had interviewed, who took the position that Colonel Herbert was not capable of brutality.

The point that I was going to make was only this.

It seems to me that that is a very, very dangerous line for libel law to go down, either substantively or procedurally, if we’re talking about procedure today, and allowing questions about that because the nature of those questions is nothing less than, why didn’t you put the good material on?

John Paul Stevens:

Well, do you think that the question would be proper if it were asked this way, in the light of what these other four persons had to say, did you have any doubt about the credibility of Mr. Potter?

Floyd Abrams:

I certainly wouldn’t have objected to a question asking whether he had any doubt about the credibility of what Mr. Potter had to say on the program.

John Paul Stevens:

Did he —

Floyd Abrams:

I’m sorry?

John Paul Stevens:

(Inaudible) was Mr. Potter telling the truth?

Floyd Abrams:

In what he said on the program?

We —

John Paul Stevens:

Well, supposing this wasn’t on the program but it was just one that was slightly different.

Well, you’d say that could be not inquired.

Floyd Abrams:

Then it seems to me that that is a further step away.

Floyd Abrams:

It seems to me that journalists ought to be responsible for what they put on.

John Paul Stevens:

Why is one involved editorial process any more than the other?

Floyd Abrams:

Because it seems to me that when you put it — I think they both involved conceptually the editorial process, but when the process is broadcast, it’s out.

John Paul Stevens:

The process wasn’t broadcast — the product of the process?

Floyd Abrams:

When the segment at page 53 and 54 (a) is on the program, it seems to me, even though that is a result of a process, the journalist has to respond to the question as to whether he believed it or not.

John Paul Stevens:

It’s permissible to ask why he put Potter’s statement on, but it is not permissible to ask, why did you not put the other four statements on?

Floyd Abrams:

No, Your Honor, it is our position that it is permissible to ask, did you believe the statement of Mr. Potter which you broadcast and it is our position that the questions ought not to be allowed to the effect of, why did you put it on —

John Paul Stevens:

But if there were a second statement by Mr. Potter, I just want to be sure I am —

Floyd Abrams:

Yes.

John Paul Stevens:

The second statement by Mr. Potter was somewhat similar, but was not actually put on the air.

It would not be permissible to say, did you believe that statement by Mr. Potter?

Floyd Abrams:

Yes, Your Honor, that is our position that that should not be permissible.

We think that the product broadcast ought to be what is at issue, and that that can be inquired into, but not the process by which other things did not get put on.

(Inaudible)

Floyd Abrams:

Thank you, Your Honor.

Warren E. Burger:

You have a few minutes left, Mr. Lubell.

Jonathan W. Lubell:

Very briefly, in regard to reference to the Sullivan decision itself, the reference to the looking at the files, the issue that gets raised now by the Second Circuit decision is suppose an editor at the time that the work product was being worked up, the editorial process was going on, went to the files and looked at the files during that editorial process.

The question is, could we ask a question about what was done during the editorial process?

I think that question is a serious question in light of the decision of the Second Circuit which appears to say that we can’t inquire as to what was done during that process.

In addition, in the Sullivan case itself, in reference to whether the media are the only groups of people that are protected under the Sullivan principles, I’m sure, needless to say, the Court is aware that individuals were as well, petitioners before this Court in Sullivan, the ministers themselves, and they were afforded the protection of the Sullivan principles as well as the New York Times.

So I think from Sullivan on, there has been at least an implied recognition that the Sullivan principles protect anyone who exercises his First Amendment rights, first in regard to public officials, and subsequently in the decisions of this Court in regard to public figures.

John Paul Stevens:

Mr. Lubell, let me ask you just one question.

At the end of Judge Oakes’ opinion, his last sentence, it refers to that he concurs in the general answer of Chief Judge Kaufman to the certified question.

Was there a single question certified to the court?

That’s on page 46(a) of the —

Jonathan W. Lubell:

Yes.

John Paul Stevens:

There was a single — where is it in the papers that have been filed?

Jonathan W. Lubell:

I believe what he is referring to, Your Honor, is the certification memorandum opinion and order because as to whether you can specify and focus upon a specific certified question, I don’t find it.

John Paul Stevens:

The only certificate of the district judge would be under 1292(b) saying an interlocutory appeal is ordered, is that what he’s talking about?

Jonathan W. Lubell:

I believe so, and that is in the appendix to the petition, the second memorandum opinion and order of Judge Haight, beginning at 90(a) to the petition in which he certifies under 1292(b).

John Paul Stevens:

I see.

William H. Rehnquist:

Well, at the very beginning, the Court of Appeal’s opinion says, appeal pursuant to 28 U.S.C. 1292(b)?

Jonathan W. Lubell:

Yes, yes.

Yes, Your Honor.

It came up on a certified — on a certification procedure and the certified question involved the same question that Judge Haight said was a question of first impression, which had to do with the state of mind, or whether there was a privilege for the editorial process of the press.

Further, in regard to the question that the Chief Justice posed to Mr. Abrams as to criminal cases where defendant does take the stand, or any civil case where defendant does take the stand, and the issue of state of mind is an issue, whether it would be because malice or intent required.

Obviously, the defendant must answer those questions unless a testimonial privilege against self-incrimination or one of the recognized testimonial privileges is asserted.

In this case, in fact, the defendant, in a pre-trial sense, took the stand.

He submitted himself to a deposition and questions were asked to him about his state of mind within concrete, factual contexts only because by the decisions of this Court, the subjective state of mind has become the critical Sullivan issue.

In regard to the — again, back to the question of what questions appeared to be allowable, or would not appear to be allowable, I would note that the defendants have objected at the deposition stage, and have contended throughout the appeals here, that questions as to the defendants’ view of the credibility and veracity of persons who appeared on the program, as well as persons who did not appear on the program, were not proper.

So, that it’s not limited to somebody who did not appear on the program.

I see both my lights are on and in conclusion, we contend that by precluding a plaintiff from obtaining any direct evidence of state of mind in a Sullivan case, or obtaining any evidence of what happened in the editorial process, whichever way you interpret the two aspects of the Court of Appeals’ decision completely unbalances the accommodation struck by this Court in Sullivan and its progeny.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.