Herbert v. Lando

LOCATION:Magoffin Avenue, El Paso

DOCKET NO.: 77-1105
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 441 US 153 (1979)
ARGUED: Oct 31, 1978
DECIDED: Apr 18, 1979

Floyd Abrams – Argued the cause for the respondents
Jonathan W. Lubell – Argued the cause for the petitioner

Facts of the case

Anthony Herbert was a retired Army officer who served in Vietnam. While in Vietnam, he accused superior officers of covering up atrocities that American troops had committed. The Columbia Broadcasting System (CBS) produced and broadcast a documentary of the petitioner’s story. Herbert sued for libel arguing that the program falsely and maliciously portrayed his character, causing him financial loss. In order to prove libel under the “actual malice” standard, Herbert’s attorneys deposed Lando as well as the producer and the editor of the documentary, attempting to deduce the editorial decisions that were made during the production of the program.


In an accusation of libel, do the First and Fourteenth Amendments protect members of the press from inquiries into their thoughts, opinions, and conclusions that go into the editorial process?

Media for Herbert v. Lando

Audio Transcription for Oral Argument – October 31, 1978 in Herbert v. Lando

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

Warren E. Burger:

The judgment and opinion of the Court in 1105, Herbert against Lando will be announced by Mr. Justice White.

Byron R. White:

This case involves a defamation action which began when petitioner, Anthony Herbert, sued Columbia Broadcasting System and two principal participants in the CBS network broadcast containing various statements about Herbert that allegedly were false and damaging to his reputation.

Because Herbert was a public figure as that term is understood in the law of libel and slander, his burden was to prove not only false and damaging publication but one that the defendants’ knew or should have known was false.

During discovery and in the course of taking the deposition of Barry Lando, the producer of the program, Herbert’s attorney made various inquiries into Lando’s thoughts, opinions, and conclusions about the truth or falsity of the material gathered by him as well as inquiries about his conversations with his editorial colleagues.

Lando declined to answer both categories of questions claiming that the First Amendment privileged him to do so.

The District Court disagreed and directed that the questions be answered.

This interlocutory ruling was certified to the Court of Appeals for the Second Circuit.

A divided panel of that court reversed holding that the First Amendment relieved Lando from any obligation to answer the questions at issue even though the answers might produce important evidence relevant to the proof of Herbert’s case.

We granted Herbert’s petition for certiorari and now reverse the judgment of the Court of Appeals.

In an opinion in which six of us concur, we explain that the First Amendment has not heretofore been construed to protect defendants in libel suits from answering questions about their knowledge or beliefs concerning the truthfulness of their material or about their motives for publishing it.

Indeed, it has been common place and essential in libel and slander suits where conditional privileges or punitive damages have been claimed to inquire into the state of mind of the publisher.

It has never been thought that the federal constitution was an obstacle to the introduction of such evidence and our most recent relevant cases have reflected this same understanding.

Because of the First and Fourteenth Amendments, the plaintiff’s burden in this case was to prove a knowing or reckless falsehood and we do not agree that the amendment should also prevent the plaintiff from seeking direct evidence from the defendants about a critical part of his case.

We leave the First Amendment as it is and decline to construe it to create the absolute privilege for the categories of evidence involved in this case.

The judgment of the Court of Appeals is accordingly reversed.

Mr. Justice Powell while joining the Court’s opinion has filed a concurring opinion.

Mr. Justice Brennan has filed an opinion dissenting in part.

He agrees with the majority that Lando was not privileged to refuse to answer questions about his own beliefs as to the truth of the material he gathered.

But Mr. Justice Brennan would protect against inquiry into editorial conversation until there has been a prima facie showing of falsehood as a publication.

Mr. Justice Stewart and Mr. Justice Marshall have filed dissenting opinions.

Warren E. Burger:

Thank you Mr. Justice White.