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

Colonel Anthony Herbert sued the CBS News program ‘‘60 Minutes,’’ producer Barry Lando, and reporter Mike Wallace for libel in a 1973 broadcast. Herbert alleged that the broadcast depicted him as having made false charges of war crimes during the Vietnam War and false claims that he was removed from his command as retaliation. Prior to trial, Herbert’s lawyers asked Lando questions about internal editorial decisions. Lando’s lawyers argued that thought processes and editorial judgments of the news magazine were protected by the First Amendment guarantees of freedom of speech and freedom of the press. A federal district court ruled that Lando should respond, but a federal appeals court ruled that Lando had a privilege not to answer questions about internal deliberations.

The U.S. Supreme Court ruled, six to three, that journalists have no privilege in libel cases to refuse to answer questions about editorial decisions. Justice Byron White said the earlier case, New York Times v. Sullivan (1964), and subsequent rulings required that to recover damages, public figures must prove that a news organization had actual, subjective doubts about a story. The subjective proof, the Court said, was part of showing that a news organization acted with actual malice, which means reckless disregard for the truth or falsity of a report. Examination of editorial judgments was necessary, the Court said, in order to find out whether editors and reporters had doubts about a story. Lando and CBS eventually prevailed when the case returned to the lower courts.

STEPHEN J. WERMIEL

References and Further Reading

• Lewis, Anthony, New York Times v. Sullivan Reconsidered: Time to Return to ‘‘The Central Meaning of the First Amendment,’’ 83 Columbia Law Review (1983): 603:610–3.
• ———. Discovery from Media Defendants in Public Figure Defamation Actions, 93 Harvard Law Review (1979): 149.
• Smolla, Rodney A. Suing the Press: Libel, the Media & Power. New York: Oxford University Press, 1986.

Cases and Statutes Cited

• New York Times v. Sullivan, 376 U.S. 254 (1964)

See also First Amendment and PACs; Freedom of Speech: Modern Period (1917–Present); Freedom of the Press: Modern Period (1917–Present); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); White, Byron Raymond