# Herbert v. Lando **441 U.S. 153 (1979) · argued October 31, 1978 · decided April 18, 1979 · 6–3 · opinion by [[Byron White]]** The case that decided **how actual malice gets proved**. [[New York Times Co. v. Sullivan]] requires a public-figure libel plaintiff to show what the journalist knew or suspected when publishing. *Herbert* held that the plaintiff may therefore question journalists under oath about their **editorial process**: their sources, their doubts, their conversations with colleagues, and the choices they made in editing. There is no First Amendment privilege that shields the newsroom from that inquiry. It is the less-famous half of the bargain. *Sullivan* raised the bar a plaintiff must clear; *Herbert* gave the plaintiff the tools to try. The Fox News texts that cost Fox $787.5 million in 2023 surfaced through exactly this kind of discovery. ## The Case **The plaintiff.** Lt. Col. Anthony Herbert was a decorated Army officer who was relieved of battalion command in the [[Vietnam War]] in 1969 and, in 1970–71, publicly accused his superiors of covering up reports of atrocities. He said his relief was retaliation for reporting them. He became a public figure as a critic of the Army in the period after the [[My Lai Massacre]] became public. **The broadcast.** On **February 4, 1973**, CBS's [[60 Minutes]] aired "The Selling of Col. Herbert," a report questioning his account, produced and edited by Barry Lando and narrated by Mike Wallace. Lando followed it with "The Herbert Affair" in *The Atlantic Monthly* (May 1973). On January 25, 1974, Herbert sued Lando, Wallace, CBS, and the magazine for libel in federal court in New York. He conceded he was a public figure, so he had to prove actual malice. **The discovery fight.** Lando's deposition ran intermittently for more than a year and filled 26 volumes, nearly 3,000 pages, with 240 exhibits. He answered most questions but refused some about his state of mind and his conversations with Wallace while preparing the segment, claiming a First Amendment privilege for the editorial process. The district court rejected the privilege; the Second Circuit, in a divided decision, recognized it. The Supreme Court reversed the Second Circuit. ## The Decision [[Byron White]] wrote for six justices (Burger, Blackmun, [[Lewis Powell]], [[William Rehnquist]], Stevens, and himself). The reasoning: - *Sullivan* and the cases after it made **the defendant's state of mind the central question** in a public-figure libel case. It would make no sense to require a plaintiff to prove what an editor knew and then forbid him from asking. - The Court said it had never suggested that those cases made evidence harder to gather, only that they raised the standard of proof. An absolute editorial privilege "is not required, authorized, or presaged by our prior cases." - It rejected the [[Chilling Effect]] argument. If inquiry into the editorial process makes editors more careful to avoid knowing or reckless falsehoods, that is consistent with the First Amendment, not a threat to it. - Trial judges keep their ordinary power to limit discovery that is irrelevant, burdensome, or abusive. **The dissents.** - [[William Brennan]] dissented in part. He would have protected **predecisional communications among editors**, the internal debate before a story is published, but only until the plaintiff made a preliminary showing that the story was defamatory and false. - [[Potter Stewart]] dissented, arguing that questions about *why* editors made their choices are irrelevant to actual malice. He would have sent the case back for a question-by-question review of the 84 disputed questions, few of which he thought were proper. - [[Thurgood Marshall]] dissented, warning that unrestricted discovery into editorial deliberation would chill candid internal debate in newsrooms. **How it ended.** Herbert won the right to ask his questions but lost his case. On **January 15, 1986**, the Second Circuit directed that the suit be dismissed, almost twelve years after it was filed. ## Why It Matters **It is how the big modern libel cases are won.** Because actual malice is about what the defendant knew, the winning evidence is almost always internal: emails, texts, drafts, editors' notes, and deposition answers. *Herbert* is what makes that evidence reachable. - **[[Fox-Dominion Settlement]] (2023).** Discovery produced Fox hosts' and executives' private messages disbelieving the election-fraud claims they aired. The judge had already ruled the statements false. With the internal record in hand, Dominion was in a position to prove actual malice, and Fox settled for $787.5 million on the day the jury was seated. - **[[Smartmatic v Fox News Lawsuit]] and [[Newsmax-Smartmatic Settlement]].** The same discovery-driven strategy against Fox and Newsmax. - **Trump's suits against the press.** The same rule cuts the other way: a plaintiff who sues invites discovery into his own claims, finances, and statements, which is one reason high-profile plaintiffs often settle or drop suits before depositions. **It is also why libel suits are expensive even when they fail.** The rule that lets a wronged plaintiff prove his case also lets a powerful plaintiff force a newsroom through years of depositions and document production. Herbert lost, but CBS spent more than a decade defending the case. That cost, not the verdict, is what makes a suit useful as a SLAPP (see [[SLAPP Lawsuits]]), and it is why anti-SLAPP laws that allow early dismissal before discovery matter so much in practice. **The RWKB frame.** *Sullivan* is usually described as protecting the press. Read with *Herbert*, it is a trade: the press gets a high standard of proof, and in exchange it opens its newsroom to the plaintiff's lawyers. Fox's $787.5 million payment to Dominion, the largest known media libel settlement in American history, and Newsmax's settlement with Smartmatic both came about because that trade worked as designed. ## See Also - [[New York Times Co. v. Sullivan]] — the standard this case made provable - [[Hustler Magazine v. Falwell]] — the 1988 case that kept public figures from bypassing that standard - [[Fox-Dominion Settlement]] · [[Smartmatic v Fox News Lawsuit]] · [[Newsmax-Smartmatic Settlement]] — discovery in action - [[SLAPP Lawsuits]] · [[Chilling Effect]] — the cost side of the rule - [[60 Minutes]] · [[CBS Timeline]] — the defendant - [[Media Timeline]]