decided: April 18, 1979.
LANDO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, post, p. 177. Brennan, J., filed an opinion dissenting in part, post, p. 180. Stewart, J., post, p. 199, and Marshall, J., post, p. 202, filed dissenting opinions.
[ 441 U.S. Page 155]
MR. JUSTICE WHITE delivered the opinion of the Court.
By virtue of the First and Fourteenth Amendments, neither the Federal nor a State Government may make any law "abridging the freedom of speech, or of the press . . . ." The question here is whether those Amendments should be construed to provide further protection for the press when sued for defamation than has hitherto been recognized. More specifically, we are urged to hold for the first time that when a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action.
Petitioner, Anthony Herbert, is a retired Army officer who had extended wartime service in Vietnam and who received
[ 441 U.S. Page 156]
widespread media attention in 1969-1970 when he accused his superior officers of covering up reports of atrocities and other war crimes. Three years later, on February 4, 1973, respondent Columbia Broadcasting System, Inc. (CBS), broadcast a report on petitioner and his accusations. The program was produced and edited by respondent Barry Lando and was narrated by respondent Mike Wallace. Lando later published a related article in Atlantic Monthly magazine. Herbert then sued Lando, Wallace, CBS, and Atlantic Monthly for defamation in Federal District Court, basing jurisdiction on diversity of citizenship. In his complaint, Herbert alleged that the program and article falsely and maliciously portrayed him as a liar and a person who had made war-crimes charges to explain his relief from command, and he requested substantial damages for injury to his reputation and to the literary value of a book he had just published recounting his experiences.
Although his cause of action arose under New York State defamation law, Herbert conceded that because he was a "public figure" the First and Fourteenth Amendments precluded recovery absent proof that respondents had published a damaging falsehood "with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." This was the holding of New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), with respect to alleged libels of public officials, and extended to "public figures" by Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).*fn1 Under this rule, absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Such "subjective awareness of probable falsity," Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n. 6 (1974), may be found if "there are obvious reasons to doubt
[ 441 U.S. Page 157]
the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, supra, at 732.
In preparing to prove his case in light of these requirements, Herbert deposed Lando at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process.*fn2 Applying the standard of Fed. Rule Civ. Proc. 26 (b), which permits discovery of any matter "relevant to the subject matter involved in the pending action" if it would either be admissible in evidence or "appears reasonably calculated to lead to the discovery of admissible evidence," the District Court ruled that because the defendant's state of mind was of "central importance" to the issue of malice in the case, it was obvious that the questions were relevant and "entirely appropriate to Herbert's efforts to discover whether Lando had any reason to doubt the veracity of certain of his sources, or, equally significant, to prefer the veracity of one source over another." 73 F.R.D. 387, 395, 396 (SDNY 1977). The District Court rejected the claim of constitutional privilege because it found nothing in the First Amendment or the relevant cases to permit or require it to increase the weight of the injured plaintiff's
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already heavy burden of proof by in effect creating barriers "behind which malicious publication may go undetected and unpunished." Id., at 394. The case was then certified for an interlocutory appeal under 28 U. S. C. § 1292 (b), and the Court of Appeals agreed to hear the case.*fn3
A divided panel reversed the District Court. 568 F.2d 974 (CA2 1977). Two judges, writing separate but overlapping opinions, concluded that the First Amendment lent sufficient protection to the editorial processes to protect Lando from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. The privilege not to answer was held to be absolute. We granted certiorari because of the importance of the issue involved. 435 U.S. 922 (1978). We have concluded that the Court of Appeals misconstrued the First and Fourteenth Amendments and accordingly reverse its judgment.
Civil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability. Until New York Times, the prevailing jurisprudence was that "[libelous] utterances [are not] within the area of constitutionally protected speech . . . ." Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); see also Roth v. United States, 354 U.S. 476, 482-483 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-708 (1931). The accepted view was that neither civil nor criminal
[ 441 U.S. Page 159]
liability for defamatory publications abridges freedom of speech or freedom of the press, and a majority of jurisdictions made publishers liable civilly for their defamatory publications regardless of their intent.*fn4 New York Times and Butts effected major changes in the standards applicable to civil libel actions. Under these cases public officials and public figures who sue for defamation must prove knowing or reckless falsehood in order to establish liability. Later, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that nonpublic figures must demonstrate some fault on the defendant's part and, at least where knowing or reckless untruth is not shown, some proof of actual injury to the plaintiff before liability may be imposed and damages awarded.
These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood.
[ 441 U.S. Page 160]
Given the required proof, however, damages liability for defamation abridges neither freedom of speech nor freedom of the press.
Nor did these cases suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of public figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps,*fn5 is essential to recovery. Inevitably, unless liability is to be completely foreclosed, the thoughts and editorial processes of the alleged defamer would be open to examination.
It is also untenable to conclude from our cases that, although proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred, plaintiffs may not inquire directly from the defendants whether they knew or had reason to suspect that their damaging publication was in error. In Butts, for example, it is evident from the record that the editorial process had been subjected to close examination and that direct as well as indirect evidence was relied on to prove that the defendant magazine had acted with actual malice. The damages verdict was sustained without any suggestion that plaintiff's proof had trenched upon forbidden areas.*fn6
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Reliance upon such state-of-mind evidence is by no means a recent development arising from New York Times and similar cases. Rather, it is deeply rooted in the common-law rule, predating the First Amendment, that a showing of malice on the part of the defendant permitted plaintiffs to
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recover punitive or enhanced damages.*fn7 In Butts, the Court affirmed the substantial award of punitive damages which in Georgia were conditioned upon a showing of "wanton or reckless indifference or culpable negligence" or "'ill will, spite, hatred and an intent to injure . . . .'" 388 U.S., at 165-166. Neither Mr. Justice Harlan, id., at 156-162,*fn8 nor Mr. Chief Justice Warren, concurring, id., at 165-168, raised any question as to the propriety of having the award turn on such a showing or as to the propriety of the underlying evidence,
[ 441 U.S. Page 163]
which plainly included direct evidence going to the state of mind of the publisher and its responsible agents.*fn9
Furthermore, long before New York Times was decided, certain qualified privileges had developed to protect a publisher from liability for libel unless the publication was made with malice.*fn10 Malice was defined in numerous ways, but in general
[ 441 U.S. Page 164]
depended upon a showing that the defendant acted with improper motive.*fn11 This showing in turn hinged upon the intent or purpose with which the publication was made, the belief of the defendant in the truth of his statement, or upon the ill will which the defendant might have borne toward the plaintiff.*fn12
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Courts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages.*fn13 The rules are applicable to the press and to other defendants alike,*fn14 and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections.*fn15
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In the face of this history, old and new, the Court of Appeals nevertheless declared that two of this Court's cases had announced unequivocal protection for the editorial process.
[ 441 U.S. Page 167]
In each of these cases, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973), we invalidated governmental efforts to pre-empt editorial decision by requiring the publication of specified material. In Columbia Broadcasting System, it was the requirement that a television network air paid political advertisements and in Tornillo, a newspaper's obligation to print a political candidate's reply to press criticism. Insofar as the laws at issue in Tornillo and Columbia Broadcasting System sought to control in advance the content of the publication, they were deemed as invalid as were prior efforts to enjoin
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publication of specified materials.*fn16 But holdings that neither a State nor the Federal Government may dictate what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever.
It is incredible to believe that the Court in Columbia Broadcasting System or in Tornillo silently effected a substantial contraction of the rights preserved to defamation plaintiffs in Sullivan, Butts, and like cases. Tornillo and Gertz v. Robert Welch, Inc., were announced on the same day; and although the Court's opinion in Gertz contained an overview of recent developments in the relationship between the First Amendment and the law of libel, there was no hint that a companion case had narrowed the evidence available to a defamation plaintiff. Quite the opposite inference is to be drawn from the Gertz opinion, since it, like prior First Amendment libel cases, recited without criticism the facts of record indicating that the state of mind of the editor had been placed at issue. Nor did the Gertz opinion, in requiring proof of some degree of fault on the part of the defendant editor and in forbidding punitive damages absent at least reckless disregard of truth or falsity, suggest that the First Amendment also foreclosed direct inquiry into these critical elements.*fn17
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In sum, contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by our prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, Butts, and similar cases.
It is nevertheless urged by respondents that the balance struck in New York Times should now be modified to provide further protections for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); St. Amant v. Thompson, 390 U.S. 727 (1968); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1976). At the same time, however, the Court has reiterated its conviction -- reflected in the laws of defamation of all of the States -- that the individual's interest in his reputation is also a basic concern. Id., at 455-457; Gertz v. Robert Welch, Inc., supra, at 348-349.
We are thus being asked to modify firmly established constitutional doctrine by placing beyond the plaintiff's reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to plaintiffs such as Herbert. The case for
[ 441 U.S. Page 170]
making this modification is by no means clear and convincing, and we decline to accept it.
In the first place, it is plain enough that the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times. As respondents would have it, the defendant's reckless disregard of the truth, a critical element, could not be shown by direct evidence through inquiry into the thoughts, opinions, and conclusions of the publisher, but could be proved only by objective evidence from which the ultimate fact could be inferred. It may be that plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself, but the relevance of answers to such inquiries, which the District Court recognized and the Court of Appeals did not deny, can hardly be doubted. To erect an impenetrable barrier to the plaintiff's use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications,*fn18 and libel plaintiffs are required to prove knowing or reckless falsehood with "convincing clarity." New York Times Co. v. Sullivan, 376 U.S., at 285-286.
Furthermore, the outer boundaries of the editorial privilege now urged are difficult to perceive. The opinions below did not state, and respondents do not explain, precisely when the editorial process begins and when it ends. Moreover, although we are told that respondent Lando was willing to testify as to what he "knew" and what he had "learned" from his interviews, as opposed to what he "believed," it is not at all clear why the suggested editorial privilege would not cover knowledge as well as belief about the veracity of published
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reports.*fn19 It is worth noting here that the privilege as asserted by respondents would also immunize from inquiry the internal communications occurring during the editorial process and thus place beyond reach what the defendant participants learned or knew as the result of such collegiate conversations or exchanges. If damaging admissions to colleagues are to be barred from evidence, would a reporter's admissions made to third parties not participating in the editorial process also be immune from inquiry? We thus have little doubt that Herbert and other defamation plaintiffs have important interests at stake in opposing the creation of the asserted privilege.
Nevertheless, we are urged by respondents to override these important interests because requiring disclosure of editorial conversations and of a reporter's conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decisionmaking. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. "[There] is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., supra, at 340.
Realistically, however, some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit
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liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material. Those who publish defamatory falsehoods with the requisite culpability, however, are subject to liability, the aim being not only to compensate for injury but also to deter publication of unprotected material threatening injury to individual reputation. Permitting plaintiffs such as Herbert to prove their cases by direct as well as indirect evidence is consistent with the balance struck by our prior decisions. If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press.
Of course, if inquiry into editorial conclusions threatens the suppression not only of information known or strongly suspected to be unreliable but also of truthful information, the issue would be quite different. But as we have said, our cases necessarily contemplate examination of the editorial process to prove the necessary awareness of probable falsehood, and if indirect proof of this element does not stifle truthful publication and is consistent with the First Amendment, as respondents seem to concede, we do not understand how direct inquiry with respect to the ultimate issue would be substantially more suspect.*fn20 Perhaps such examination will lead to liability that would not have been found without it, but this does not suggest that the determinations in these instances will be inaccurate and will lead to the suppression of protected information. On the contrary, direct inquiry from the actors, which affords the opportunity to refute inferences that might otherwise be drawn from circumstantial evidence, suggests
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that more accurate results will be obtained by placing all, rather than part, of the evidence before the decisionmaker. Suppose, for example, that a reporter has two contradictory reports about the plaintiff, one of which is false and damaging, and only the false one is published. In resolving the issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect.*fn21 Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged; and unless there is to be an absolute First Amendment privilege to inflict injury by knowing or reckless conduct, which respondents do not suggest, constitutional values will not be threatened.
It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs.*fn22 We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication
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of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues. Nor is there sound reason to believe that editorial exchanges and the editorial process are so subject to distortion and to such recurring misunderstanding that they should be immune from examination in order to avoid erroneous judgments in defamation suits. The evidentiary burden Herbert must carry to prove at least reckless disregard for the truth is substantial indeed, and we are unconvinced that his chances of winning an undeserved verdict are such that an inquiry into what Lando learned or said during the editorial process must be foreclosed.
This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No such problem exists here, however, where there is a specific claim of injury arising from a publication that is alleged to have been knowingly or recklessly false.*fn23
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Evidentiary privileges in litigation are not favored,*fn24 and even those rooted in the Constitution must give way in proper circumstances. The President, for example, does not have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. United States v. Nixon, 418 U.S. 683 (1974). In so holding, we found that although the President has a powerful interest in confidentiality of communications between himself and his advisers, that interest must yield to a demonstrated specific need for evidence. As we stated, in referring to existing limited privileges against disclosure, "[whatever] their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Id., at 710.
With these considerations in mind, we conclude that the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge.
Although defamation litigation, including suits against the press, is an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out a prima facie case by proving the damaging publication. Truth
[ 441 U.S. Page 176]
and privilege were defenses. Intent, motive, and malice were not necessarily involved except to counter qualified privilege or to prove exemplary damages. The plaintiff's burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher. If plaintiffs in consequence now resort to more discovery, it would not be surprising; and it would follow that the costs and other burdens of this kind of litigation would escalate and become much more troublesome for both plaintiffs and defendants. It is suggested that the press needs constitutional protection from these burdens if it is to perform its task,*fn25 which is indispensable in a system such as ours.
Creating a constitutional privilege foreclosing direct inquiry into the editorial process, however, would not cure this problem for the press. Only complete immunity from liability for defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus.*fn26 But
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until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.
The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Schlagenhauf v. Holder, 379 U.S. 104, 114-115 (1964); Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947). But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) To this end, the requirement of Rule 26 (b)(1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Rule 26 (c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.
Whether, as a non-constitutional matter, however, the trial judge properly applied the rules of discovery was not within the boundaries of the question certified under 28 U. S. C. § 1292 (b) and accordingly is not before us.*fn27 The judgment of the Court of Appeals is reversed.
568 F.2d 974, reversed.
MR. JUSTICE POWELL, concurring.
I join the opinion of the Court, and write separately to elaborate on what is said in Part IV. I do not see my observations
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as being inconsistent with the Court's opinion; rather, I write to emphasize the additional point that, in supervising discovery in a libel suit by a public figure, a district court has a duty to consider First Amendment interests as well as the private interests of the plaintiff.
I agree with the Court that the explicit constitutional protection of First Amendment rights in a case of this kind, as articulated by New York Times Co. v. Sullivan, 376 U.S. 254 (1964), should not be expanded to create an evidentiary privilege. With respect to pretrial discovery in a civil proceeding, whatever protection the "exercise of editorial judgment" enjoys depends entirely on the protection the First Amendment accords the product of this judgment, namely, published speech.*fn1 As the Court makes clear, the privilege respondents claim is unnecessary to safeguard published speech. This holding requires a reversal of the judgment of the Court of Appeals. The Court notes, however, that whether "the trial judge properly applied the rules of discovery," as a non-constitutional matter, is not before us under the question certified pursuant to 28 U. S. C. § 1292 (b), ante, at 177. I assume, therefore, that the litigation will continue and the District Court will review the interrogatories and questions which respondents declined to answer.
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Earlier this Term, in dissenting from the denial of certiorari in ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979), I had occasion to comment upon the widespread abuse of discovery that has become a prime cause of delay and expense in civil litigation. Id., at 1086-1088. At the 1946 Term, just a few years after adoption of the Federal Rules of Civil Procedure, this Court stated "that the deposition-discovery rules are to be accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507 (1947). The bar and trial courts understandably responded affirmatively. As the years have passed, discovery techniques and tactics have become a highly developed litigation art -- one not infrequently exploited to the disadvantage of justice. As the Court now recognizes, the situation has reached the point where there is serious "concern about undue and uncontrolled discovery." Ante, at 176.*fn2 In view of the evident attention given discovery by the District Judge in this case, it cannot be said that the process here was "uncontrolled." But it certainly was protracted and undoubtedly was expensive for all concerned.*fn3
Under present Rules the initial inquiry in enforcement of any discovery request is one of relevance. Whatever standard may be appropriate in other types of cases, when a discovery demand arguably impinges on First Amendment rights a district court should measure the degree of relevance required in light of both the private needs of the parties and the public concerns implicated. On the one hand, as this Court has repeatedly recognized, the solicitude for First Amendment rights evidenced in our opinions reflects concern for the
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important public interest in a free flow of news and commentary. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 781-783 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 862-863 (1974) (POWELL, J., dissenting). On the other hand, there also is a significant public interest in according to civil litigants discovery of such matters as may be genuinely relevant to their lawsuit. Although the process of weighing these interests is hardly an exact science, it is a function customarily carried out by judges in this and other areas of the law. In performing this task, trial judges -- despite the heavy burdens most of them carry -- are now increasingly recognizing the "pressing need for judicial supervision." AFC Industries, Inc. v. EEOC, supra, at 1087.*fn4
The Court today emphasizes that the focus must be on relevance, that the injunction of Fed. Rule Civ. Proc. 1 must be heeded, and that "district courts should not neglect their power to restrict discovery" in the interest of justice or to protect the parties from undue burden or expense. Ante, at 177; see Fed. Rule Civ. Proc. 26 (c). I join the Court's opinion on my understanding that in heeding these admonitions, the district court must ensure that the values protected by the First Amendment, though entitled to no constitutional privilege in a case of this kind, are weighed carefully in striking a proper balance.
MR. JUSTICE BRENNAN, dissenting in part.
Respondents are representatives of the news media. They are defendants in a libel action brought by petitioner, Lieutenant
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Colonel Anthony Herbert (U.S. Army, Ret.), who is concededly a public figure. The Court today rejects respondents' claim that an "editorial privilege" shields from discovery information that would reveal respondents' editorial processes. I agree with the Court that no such privilege insulates factual matters that may be sought during discovery, and that such a privilege should not shield respondents' "mental processes." 568 F.2d 974, 995 (CA2 1977) (Oakes, J.). I would hold, however, that the First Amendment requires predecisional communication among editors to be protected by an editorial privilege, but that this privilege must yield if a public-figure plaintiff is able to demonstrate to the prima facie satisfaction of a trial judge that the publication in question constitutes defamatory falsehood.
The Court of Appeals below stated that "the issue presented by this case is whether, and to what extent, inquiry into the editorial process, conducted during discovery in a New York Times v. Sullivan type libel action, impermissibly burdens the work of reporters and broadcasters." Id., at 979 (Kaufman, C. J.). The court grouped the discovery inquiries objected to by respondents into five categories:
"1. Lando's conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the '60 Minutes' segment and the Atlantic Monthly article;
"2. Lando's conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
"3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
"4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and
[ 441 U.S. Page 182]
"5. Lando's intentions as manifested by his decision to include or exclude certain material." Id., at 983.
The Court of Appeals concluded:
"If we were to allow selective disclosure of how a journalist formulated his judgments on what to print or not to print, we would be condoning judicial review of the editor's thought processes. Such an inquiry, which on its face would be virtually boundless, endangers a constitutionally protected realm, and unquestionably puts a freeze on the free interchange of ideas within the newsroom." Id., at 980.
The Court of Appeals held that all five categories of information sought by petitioner were shielded by an editorial privilege.
The holding of the Court of Appeals presents a novel and difficult question of law. Federal Rule Civ. Proc. 26 (b)(1) provides: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." (Emphasis supplied.) The instant case is brought under diversity jurisdiction, 28 U. S. C. § 1332 (a), and Fed. Rule Evid. 501 states that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness [or] person . . . shall be determined in accordance with State law." Although New York Times Co. v. Sullivan, 376 U.S. 254 (1964), placed constitutional limits on state libel claims, it did not itself create a federal cause of action for libel. The "rule of decision" in this case, therefore, is defined by state law. There is no contention, however, that applicable state law encompasses an editorial privilege. Thus if we were to create and apply such a privilege, it would have to be constitutionally grounded, as, for example, is executive privilege, see United States v. Nixon, 418 U.S. 683 (1974), or the privilege against self-incrimination. See McCarthy v. Arndstein, 266 U.S. 34 (1924). The existence
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of such a privilege has never before been urged before this Court.
This case must be approached from the premise that pretrial discovery is normally to be "accorded a broad and liberal treatment," Hickman v. Taylor, 329 U.S. 495, 507 (1947), and that judicial creation of evidentiary privileges is generally to be discouraged. We have in the past, however, recognized evidentiary privileges in order to protect "interests and relationships which . . . are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." E. Cleary, McCormick on Evidence 152 (2d ed. 1972). For example, Hickman v. Taylor, supra, created a qualified privilege for attorneys' work products in part because, without such a privilege, "[the] effect on the legal profession would be demoralizing." 329 U.S., at 511. Similarly, Roviaro v. United States, 353 U.S. 53 (1957), recognized a qualified "informer's privilege" for "the furtherance and protection of the public interest in effective law enforcement." Id., at 59.
The inquiry to be pursued, therefore, is whether the creation of an editorial privilege would so further the purposes and goals of the constitutional scheme as embodied in the First Amendment, as to justify "some incidental sacrifice" of evidentiary material. This inquiry need not reach an inflexible result: The justifications for an editorial privilege may well support only a qualified privilege which, in appropriate instances, must yield to the requirements of "the administration of justice."
Mr. Justice Brandeis reminded us over a half century ago that "[those] who won our independence . . . valued liberty both as an end and as a means."*fn1 Whitney v. California, 274 U.S. 357, 375 (1927)
[ 441 U.S. Page 184]
(concurring opinion). In its instrumental aspect, the First Amendment serves to foster the values of democratic self-government. This is true in several senses. The First Amendment bars the state from imposing upon its citizens an authoritative vision of truth.*fn2 It prohibits the state from interfering with the communicative processes
[ 441 U.S. Page 185]
through which its citizens exercise and prepare to exercise their rights of self-government.*fn3 And the Amendment shields those who would censure the state or expose its abuses.*fn4
[ 441 U.S. Page 186]
These various senses can sometimes weave together, as can be seen in the letter of 1774 addressed by the First Continental Congress to the inhabitants of Quebec, listing the rights "a profligate [English] Ministry are now striving, by force of arms, to ravish from us":
"The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."*fn5
[ 441 U.S. Page 187]
Although the various senses in which the First Amendment serves democratic values will in different contexts demand distinct emphasis and development, they share the common characteristic of being instrumental to the attainment of social ends. It is a great mistake to understand this aspect of the First Amendment solely through the filter of individual rights.*fn6 This is the meaning of our cases permitting a litigant to challenge the constitutionality of a statute as overbroad under the First Amendment if the statute "prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct." NAACP v. Button, 371 U.S. 415, 432 (1963). Our reasoning is that First Amendment freedoms "are delicate and vulnerable, as well as supremely precious in our society," id., at 433, and that a litigant should therefore be given standing to assert this more general social interest in the "vindication of freedom of expression." Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). See Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). It is also the meaning of the "actual malice" standard set forth in New York Times Co. v. Sullivan, 376 U.S., at 279-280. Even though false information may have no intrinsic First Amendment worth, St. Amant v. Thompson, 390 U.S. 727, 732 (1968), and even though a particular defendant may have published false information, his freedom of expression is nevertheless protected in the absence of actual malice because, "to insure the ascertainment and publication
[ 441 U.S. Page 188]
of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." Ibid.*fn7
In recognition of the social values served by the First Amendment, our decisions have referred to "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (emphasis supplied), and to "the circulation of information to which the public is entitled in virtue of the constitutional guaranties." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) (emphasis supplied). In Time, Inc. v. Hill, 385 U.S. 374 (1967), we stated that the guarantees of the First Amendment "are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society." Id., at 389.
[ 441 U.S. Page 189]
The editorial privilege claimed by respondents must be carefully analyzed to determine whether its creation would significantly further these social values recognized by our prior decisions. In this analysis it is relevant to note that respondents are representatives of the communications media, and that the "press and broadcast media," Gertz v. Robert Page 189} Welch, Inc., 418 U.S. 323, 343 (1974),*fn8 have played a dominant and essential role in serving the "informative function," Branzburg v. Hayes, 408 U.S. 665, 705 (1972), protected by the First Amendment. "The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate." First National Bank of Boston v. Bellotti, 435 U.S. 765, 781 (1978).*fn9 "The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." Grosjean v. American Press Co., supra, at 250. An editorial privilege would thus not be merely personal to respondents, but would shield the press in its function "as an agent of the public at large. . . . The press is the necessary representative of the public's interest in this context and the instrumentality which effects the public's right." Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting).
[ 441 U.S. Page 190]
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), struck down as undue interference with the editorial process a Florida statute granting a political candidate a right to equal space to reply to criticisms of his record by a newspaper.
"Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time." Id., at 258.
See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 391 (1973); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120, 124-125 (1973). Through the editorial process expression is composed; to regulate the process is therefore to regulate the expression. The autonomy of the speaker is thereby compromised, whether that speaker is a large urban newspaper or an individual pamphleteer. The print and broadcast media, however, because of their large organizational structure, cannot exist without some form of editorial process. The protection
[ 441 U.S. Page 191]
of the editorial process of these institutions thus becomes a matter of particular First Amendment concern.*fn10
There is in this case, however, no direct government regulation of respondents' editorial process. But it is clear that disclosure of the editorial process of the press will increase the likelihood of large damages judgments in libel actions, and will thereby discourage participants in that editorial process.*fn11 And, as New York Times stated: "What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute." 376 U.S., at 277. Of course New York Times set forth a substantive standard defining that speech unprotected by the First Amendment, and respondents' editorial process cannot be shielded merely so as to block judicial determination of whether respondents have in fact engaged in such speech. As the Court states: "[If] the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and
[ 441 U.S. Page 192]
other cases have held to be consistent with the First Amendment." Ante, at 171. Our inquiry, therefore, becomes the independent First Amendment values served by the editorial process and the extent to which exposure of that process would impair these First Amendment values.
In Tornillo we defined the editorial process in a functional manner, as that process whereby the content and format of published material is selected. The Court of Appeals below identified two aspects of this process. The first concerns "the mental processes of the press regarding 'choice of material' . . . ." 568 F.2d, at 995 (Oakes, J.). This aspect encompasses an editor's subjective "thought processes," his "thoughts, opinions and conclusions." Id., at 980, 984 (Kaufman, C. J.). The Court of Appeals concluded that if discovery were permitted concerning this aspect of the editorial process, journalists "would be chilled in the very process of thought." Id., at 984.
I find this conclusion implausible. Since a journalist cannot work without such internal thought processes, the only way this aspect of the editorial process can be chilled is by a journalist ceasing to work altogether. Given the exceedingly generous standards of New York Times, this seems unlikely. Moreover, New York Times removed First Amendment protection from defamatory falsehood published with actual malice -- in knowing or reckless disregard of the truth.*fn12 Subsequent decisions have made clear that actual malice turns on a journalist's "subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S., at 335 n. 6. It would be anomalous to turn substantive liability on a journalist's subjective attitude and at the same time to shield from disclosure the most direct evidence of that attitude. There will be, of
[ 441 U.S. Page 193]
course, journalists at the margin -- those who have some awareness of the probable falsity of their work but not enough to constitute actual malice -- who might be discouraged from publication. But this chill emanates chiefly from the substantive standard of New York Times, not from the absence of an editorial privilege.
The second aspect of the editorial privilege identified by the Court of Appeals involves "the free interchange of ideas within the newsroom," 568 F.2d, at 980 (Kaufman, C. J.), "the relationship among editors." Id., at 993 (Oakes, J.). Judge Oakes concluded that "[ideas] expressed in conversations, memoranda, handwritten notes and the like, if discoverable, would in the future 'likely' lead to a more muted, less vigorous and creative give-and-take in the editorial room." Id., at 993-994. Chief Judge Kaufman stated that "[a] reporter or editor, aware that his thoughts might have to be justified in a court of law, would often be discouraged and dissuaded from the creative verbal testing, probing, and discussion of hypotheses and alternatives which are the sine qua non of responsible journalism." Id., at 980.
An editorial privilege protecting this aspect of the editorial process would essentially be analogous to the executive privilege which shields the "advisory opinions, recommendations and deliberations . . . by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (DC 1966). As our cases interpreting Exemption 5 of the Freedom of Information Act, 5 U. S. C. § 552 (b)(5), make clear, this privilege would not protect merely "factual" material, but only "deliberative or policymaking processes." EPA v. Mink, 410 U.S. 73, 89 (1973). The rationale for this privilege was succinctly stated in United States v. Nixon, 418 U.S., at 705: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."
[ 441 U.S. Page 194]
The same rationale applies to respondents' proposed editorial privilege. Just as the possible political consequences of disclosure might undermine predecisional communication within the Executive Branch, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), so the possibility of future libel judgments might well dampen full and candid discussion among editors of proposed publications. Just as impaired communication "clearly" affects "the quality" of executive decisionmaking, ibid., so too muted discussion during the editorial process will affect the quality of resulting publications. Those editors who have doubts might remain silent; those who would prefer to follow other investigative leads might be restrained; those who would otherwise counsel caution might hold their tongues. In short, in the absence of such an editorial privilege the accuracy, thoroughness, and profundity of consequent publications might well be diminished.
Such a diminution would affect First Amendment values. The Amendment embraces the public's interest in "accurate and effective reporting by the news media." Saxbe v. Washington Post Co., 417 U.S., at 863 (POWELL, J., dissenting). "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. . . . Abridgment of freedom of speech and of the press . . . impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government."*fn13 Thornhill v. Alabama, 310 U.S. 88, 95 (1940). Petitioner is concededly a public figure; "[our] citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of
[ 441 U.S. Page 195]
'public officials.'" Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result). To the extent coverage of such figures becomes fearful and inhibited, to the extent the accuracy, effectiveness, and thoroughness of such coverage is undermined, the social values protected by the First Amendment suffer abridgment.
I find compelling these justifications for the existence of an editorial privilege. The values at issue are sufficiently important to justify some incidental sacrifice of evidentiary material.*fn14 The Court today concedes the accuracy of the underlying rationale for such a privilege, stating that "[we] do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other . . . ." Ante, at 173. The Court, however, contents itself with the curious observation that "given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion." Ante, at 174. Because
[ 441 U.S. Page 196]
such "prepublication precautions" will often prove to be extraordinarily damaging evidence in libel actions, I cannot so blithely assume such "precautions" will be instituted, or that such "frank interchange" as now exists is not impaired by its potential exposure in such actions.
I fully concede that my reasoning is essentially paradoxical. For the sake of more accurate information, an editorial privilege would shield from disclosure the possible inaccuracies of the press; in the name of a more responsible press, the privilege would make more difficult of application the legal restraints by which the press is bound. The same paradox, however, inheres in the concept of an executive privilege: so as to enable the government more effectively to implement the will of the people, the people are kept in ignorance of the workings of their government. The paradox is unfortunately intrinsic to our social condition. Judgment is required to evaluate and balance these competing perspectives.
Judgment is also required to accommodate the tension between society's "pervasive and strong interest in preventing and redressing attacks upon reputation," Rosenblatt v. Baer, 383 U.S. 75, 86 (1966), and the First Amendment values that would be served by an editorial privilege. In my view this tension is too fine to be resolved in the abstract. As is the case with executive privilege, there must be a more specific balancing of the particular interests asserted in a given lawsuit. A general claim of executive privilege, for example, will not stand against a "demonstrated, specific need for evidence . . . ." United States v. Nixon, 418 U.S., at 713. Conversely, a general statement of need will not prevail over a concrete demonstration of the necessity for executive secrecy. United States v. Reynolds, 345 U.S. 1, 11 (1953). Other evidentiary privileges are similarly dependent upon the particular exigencies demonstrated in a specific lawsuit. Roviaro v. United States, 353 U.S. 53 (1957), for example, held that the existence of an informer's privilege depends
[ 441 U.S. Page 197]
"on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id., at 62. Hickman v. Taylor, 329 U.S. 495 (1947), similarly required ad hoc balancing to determine the existence of an attorneys' work-product privilege. The procedures whereby this balancing is achieved, so far from constituting mere "formalism," ante, at 175 n. 23, are in fact the means through which courts have traditionally resolved conflicts between competing social and individual interests.
In my judgment, the existence of a privilege protecting the editorial process must, in an analogous manner, be determined with reference to the circumstances of a particular case. In the area of libel, the balance struck by New York Times between the values of the First Amendment and society's interest in preventing and redressing attacks upon reputation must be preserved. This can best be accomplished if the privilege functions to shield the editorial process from general claims of damaged reputation. If, however, a public-figure plaintiff is able to establish, to the prima facie satisfaction of a trial judge, that the publication at issue constitutes defamatory falsehood,*fn15 the claim of damaged reputation becomes specific and demonstrable, and the editorial privilege must yield.*fn16 Contrary to the suggestion of the Court, an editorial privilege so understood would not create "a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times." Ante, at 170. Requiring a public-figure plaintiff to make a
[ 441 U.S. Page 198]
prima facie showing of defamatory falsehood will not constitute an undue burden, since he must eventually demonstrate these elements as part of his case in chief.*fn17 And since editorial privilege protects only deliberative and policymaking processes and not factual material, discovery should be adequate to acquire the relevant evidence of falsehood. A public-figure plaintiff will thus be able to redress attacks on his reputation, and at the same time the editorial process will be protected in all but the most necessary cases.
Applying these principles to the instant case is most difficult, since the five categories of objectionable discovery inquiries formulated by the Court of Appeals are general, and it is impossible to determine what specific questions are encompassed within each category. It would nevertheless appear that four of the five categories concern respondents' mental processes, and thus would not be covered by an editorial privilege. Only the fourth category -- "Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication" -- would seem to be protected by a proper editorial privilege. The Court of Appeals noted, however, that respondents had already made available to petitioner in discovery "the contents of pretelecast conversations between Lando and Wallace . . . ." 568 F.2d, at 982 (Kaufman, C. J.). Whether this constitutes waiver of the editorial privilege should be determined in the first instance by the District Court. I would therefore, like the Court of Appeals, remand this case to the District Court, but would require the District Court to determine (a) whether respondents have waived their editorial privilege; (b) if not, whether petitioner Herbert can overcome the privilege through
[ 441 U.S. Page 199]
a prima facie showing of defamatory falsehood; and (c) if not, the proper scope and application of the privilege.
MR. JUSTICE STEWART, dissenting.
It seems to me that both the Court of Appeals and this Court have addressed a question that is not presented by the case before us. As I understand the constitutional rule of New York Times Co. v. Sullivan, 376 U.S. 254, inquiry into the broad "editorial process" is simply not relevant in a libel suit brought by a public figure against a publisher. And if such an inquiry is not relevant, it is not permissible. Fed. Rule Civ. Proc. 26 (b).
Although I joined the Court's opinion in New York Times, I have come greatly to regret the use in that opinion of the phrase "actual malice." For the fact of the matter is that "malice" as used in the New York Times opinion simply does not mean malice as that word is commonly understood. In common understanding, malice means ill will or hostility,1[a] and the most relevant question in determining whether a person's action was motivated by actual malice is to ask "why." As part of the constitutional standard enunciated in the New York Times case, however, "actual malice" has nothing to do with hostility or ill will, and the question "why" is totally irrelevant.
Under the constitutional restrictions imposed by New York Times and its progeny, a plaintiff who is a public official or public figure can recover from a publisher for a defamatory statement upon convincingly clear proof of the following elements:
(1) the statement was published by the defendant,
(2) the statement defamed the plaintiff,
(3) the defamation was untrue, and
(4) the defendant knew the defamatory statement was untrue, or published it in reckless disregard of its truth or
[ 441 U.S. Page 200]
falsity. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (plurality opinion); Ocala Star-Banner Co. v. Damron, 401 U.S. 295; Time, Inc. v. Pape, 401 U.S. 279; Monitor Patriot Co. v. Roy, 401 U.S. 265; Greenbelt Coop. Pub. Assn. v. Bresler, 398 U.S. 6; St. Amant v. Thompson, 390 U.S. 727; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81; Curtis Publishing Co. v. Butts, 388 U.S. 130; Rosenblatt v. Baer, 383 U.S. 75; New York Times Co. v. Sullivan, supra. Cf. Time, Inc. v. Firestone, 424 U.S. 448; Gertz v. Robert Welch, Inc., 418 U.S. 323; Letter Carriers v. Austin, 418 U.S. 264; Time, Inc. v. Hill, 385 U.S. 374; Linn v. Plant Guard Workers, 383 U.S. 53.
The gravamen of such a lawsuit thus concerns that which was in fact published. What was not published has nothing to do with the case. And liability ultimately depends upon the publisher's state of knowledge of the falsity of what he published, not at all upon his motivation in publishing it -- not at all, in other words, upon actual malice as those words are ordinarily understood.
This is not the first time that judges and lawyers have been led astray by the phrase "actual malice" in the New York Times opinion. In Greenbelt Coop. Pub. Assn. v. Bresler, supra, another defamation suit brought by a public figure against a publisher, the trial judge instructed the jury that the plaintiff could recover if the defendant's publication had been made with malice, and that malice means "spite, hostility, or deliberate intention to harm." In reversing the judgment for the plaintiff, we said that this jury instruction constituted "error of constitutional magnitude." 398 U.S., at 10. Cf. Letter Carriers v. Austin, supra, at 281; Rosenblatt v. Baer, supra, at 83-84.
In the present case, of course, neither the Court of Appeals nor this Court has overtly committed the egregious error manifested in Bresler. Both courts have carefully enunciated the correct New York Times test. See 568 F.2d 974, 985
[ 441 U.S. Page 201]
(opinion of Oakes, J.), and ante, at 156-157. But each has then followed a false trail, explainable only by an unstated misapprehension of the meaning of New York Times "actual malice," to arrive at the issue of "editorial process" privilege. This misapprehension is reflected by numerous phrases in the prevailing Court of Appeals opinions: "a journalist's exercise of editorial control and judgment," "how a journalist formulated his judgments," "the editorial selection process of the press," "the heart of the editorial process," "reasons for the inclusion or exclusion of certain material." See 568 F.2d 974, passim. Similar misapprehension is reflected in this Court's opinion by such phrases as "improper motive," "intent or purpose with which the publication was made," "ill will," and by lengthy footnote discussion about the spite or hostility required to constitute malice at common law. See ante, at 162 and 164.
Once our correct bearings are taken, however, and it is firmly recognized that a publisher's motivation in a case such as this is irrelevant, there is clearly no occasion for inquiry into the editorial process as conceptualized in this case. I shall not burden this opinion with a list of the 84 discovery questions at issue.2[a] Suffice it to say that few if any of them
[ 441 U.S. Page 202]
seem to me to come within even the most liberal construction of Fed. Rule Civ. Proc. 26 (b).3[a]
By the time this case went to the Court of Appeals, the deposition of the respondent Lando alone had lasted intermittently for over a year and had filled 2,903 pages of transcript, with an additional 240 exhibits. The plaintiff had, in Chief Judge Kaufman's words, "already discovered what Lando knew, saw, said and wrote during his investigation." 568 F.2d, at 984. That, it seems to me, was already more than sufficient.
In a system of federal procedure whose prime goal is "the just, speedy, and inexpensive determination of every action,"4[a] time-consuming and expensive pretrial discovery is burdensome enough, even when within the arguable bounds of Rule 26 (b). But totally irrelevant pretrial discovery is intolerable.
Like the Court of Appeals, I would remand this case to the District Court, but with directions to measure each of the proposed questions strictly against the constitutional criteria of New York Times and its progeny. Only then can it be determined whether invasion of the editorial process is truly threatened.
MR. JUSTICE MARSHALL, dissenting.
Although professing to maintain the accommodation of interests struck in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court today is unresponsive to the constitutional considerations underlying that opinion. Because I believe that some constraints on pretrial discovery are essential to ensure the "uninhibited [and] robust" debate on public
[ 441 U.S. Page 203]
issues which Sullivan contemplated, id., at 270, I respectfully dissent.
At issue in this case are competing interests of familiar dimension. States undeniably have an interest in affording individuals some measure of protection from unwarranted defamatory attacks. Libel actions serve that end, not only by assuring a forum in which reputations can be publicly vindicated and dignitary injuries compensated, but also by creating incentives for the press to exercise considered judgment before publishing material that compromises personal integrity. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341-342 (1974); Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).
Against these objectives must be balanced society's interest in promoting unfettered debate on matters of public importance. As this Court recognized in Sullivan, error is inevitable in such debate, and, if forced to guarantee the truth of all assertions, potential critics might suppress statements believed to be accurate "because of doubt whether [truthfulness] can be proved in court or fear of the expense of having to do so." 376 U.S., at 279. Such self-censorship would be incompatible with the tenets on which the First Amendment and our democratic institutions are founded. Under a representative system of government, an informed electorate is a precondition of responsive decisionmaking. See Associated Press v. United States, 326 U.S. 1, 20 (1945); Grosjean v. American Press Co., 297 U.S. 233, 250 (1936); A. Meiklejohn, Free Speech and its Relation to Self-Government 88-89 (1948). To secure public exposure to the widest possible range of information and insights, some margin of error must be tolerated. Thus, absent knowing falsity or reckless disregard for the truth, the press is shielded from liability for defamatory statements regarding public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); New York Times Co. v. Sullivan, supra.
[ 441 U.S. Page 204]
Yet this standard of liability cannot of itself accomplish the ends for which it was conceived. Insulating the press from ultimate liability is unlikely to avert self-censorship so long as any plaintiff with a deep pocket and a facially sufficient complaint is afforded unconstrained discovery of the editorial process. If the substantive balance of interests struck in Sullivan is to remain viable, it must be reassessed in light of the procedural realities under which libel actions are conducted.
The potential for abuse of liberal discovery procedures is of particular concern in the defamation context. As members of the bench and bar have increasingly noted, rules designed to facilitate expeditious resolution of civil disputes have too often proved tools for harassment and delay.1[b] Capitalizing on this Court's broad mandate in Hickman v. Taylor, 329 U.S. 495, 507 (1947), reaffirmed in Schlagenhauf v. Holder, 379 U.S. 104, 114-115 (1964), that discovery rules be accorded a "broad and liberal" scope, litigants have on occasion transformed Fed. Rule Civ. Proc. 26 devices into tactics of attrition. The possibility of such abuse is enhanced in libel litigation, for many self-perceived victims of defamation are animated by something more than a rational calculus of their chances of recovery.2[b] Given the circumstances under which
[ 441 U.S. Page 205]
libel actions arise, plaintiffs' pretrial maneuvers may be fashioned more with an eye to deterrence or retaliation than to unearthing germane material.
Not only is the risk of in terrorem discovery particularly pronounced in the defamation context, but the societal consequences attending such abuse are of special magnitude. Rather than submit to the intrusiveness and expense of protracted discovery, even editors confident of their ability to prevail at trial or on a motion for summary judgment may find it prudent to "'steer far [wide] of the unlawful zone' thereby keeping protected discussion from public cognizance." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 53 (1971) (plurality opinion; citation omitted). Faced with the prospect of escalating attorney's fees, diversion of time from journalistic endeavors, and exposure of potentially sensitive information, editors may well make publication judgments that reflect less the risk of liability than the expense of vindication.3[b]
Although acknowledging a problem of discovery abuse, the Court suggests that the remedy lies elsewhere, in "major changes in the present Rules of Civil Procedure." Ante, at 177. And somewhat inconsistently, the Court asserts further that district judges already have "in fact and in law . . . ample powers . . . to prevent abuse." Ibid. I cannot agree. Where First Amendment rights are critically implicated, it is incumbent on this Court to safeguard their effective exercise. By leaving the directives of Hickman and Schlagenhauf unqualified with respect to libel litigation, the Court has abdicated that responsibility.4[b]
[ 441 U.S. Page 206]
In my judgment, the same constitutional concerns that impelled us in Sullivan to confine the circumstances under which defamation liability could attach also mandate some constraints on roving discovery. I would hold that the broad discovery principles enunciated in Hickman and Schlagenhauf are inapposite in defamation cases. More specifically, I would require that district courts superintend pretrial disclosure in such litigation so as to protect the press from unnecessarily protracted or tangential inquiry. To that end, discovery requests should be measured against a strict standard of relevance. Further, because the threat of disclosure may intrude with special force on certain aspects of the editorial process, I believe some additional protection in the form of an evidentiary privilege is warranted.
The Court of Appeals extended a privilege subsuming essentially two kinds of discovery requests. The first included questions concerning the state of mind of an individual journalist, principally his conclusions and bases for conclusions as to the accuracy of information compiled during investigation. The second encompassed communications between journalists about matter to be included in the broadcast. 568 F.2d 974, 978 (CA2 1977). Reasoning that discovery of both forms of material would be intrusive, that the intrusion would be inhibiting, and that such inhibition would be inconsistent with
[ 441 U.S. Page 207]
the editorial autonomy recognized in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973), the Court of Appeals concluded that a privilege from disclosure was essential. 568 F.2d, at 975.
With respect to state-of-mind inquiry, that syllogism cannot withstand analysis. For although discovery may well be intrusive, it is unclear how journalists faced with the possibility of such questions can be "chilled in the very process of thought." Id., at 984. Regardless of whether strictures are placed on discovery, reporters and editors must continue to think, and to form opinions and conclusions about the veracity of their sources and the accuracy of their information. At best, it can be argued only that failure to insulate the press from this form of disclosure will inhibit not the editing process but the final product -- that the specter of questions concerning opinion and belief will induce journalists to refrain from publishing material thought to be accurate. But as my Brother BRENNAN notes, ante, at 192-193, this inhibition would emanate principally from Sullivan 's substantive standard, not from the incremental effect of such discovery. So long as Sullivan makes state of mind dispositive, some inquiry as to the manner in which editorial decisions are made is inevitable. And it is simply implausible to suppose that asking a reporter why certain material was or was not included in a given publication will be more likely to stifle incisive journalism than compelling disclosure of other objective evidence regarding that decision.5[b]
[ 441 U.S. Page 208]
I do not mean to suggest, as did the District Court here, that Tornillo and Columbia Broadcasting have "nothing to do" with this case. 73 F.R.D. 387, 396 (SDNY 1977). To the contrary, the values of editorial autonomy given recognition in those decisions should inform district courts as they monitor the discovery phase of defamation cases. But assuming that a trial judge has discharged his obligation to prevent unduly protracted or inessential disclosure, see supra, at 206, I am unpersuaded that the impact of state-of-mind inquiry will of itself threaten journalistic endeavor beyond the threshold contemplated by Sullivan.
External evidence of editorial decisionmaking, however, stands on a different footing. For here the concern is not simply that the ultimate product may be inhibited, but that the process itself will be chilled. Journalists cannot stop forming tentative hypotheses, but they can cease articulating them openly. If prepublication dialogue is freely discoverable, editors and reporters may well prove reluctant to air their
[ 441 U.S. Page 209]
reservations or to explore other means of presenting information and comment. The threat of unchecked discovery may well stifle the collegial discussion essential to sound editorial dynamics. As we recognized in United States v. Nixon, 418 U.S. 683, 705 (1974): "[Those] who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decisionmaking process." (Footnote omitted.) Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Society's interest in enhancing the accuracy of coverage of public events is ill-served by procedures tending to muffle expression of uncertainty. To preserve a climate of free interchange among journalists, the confidentiality of their conversation must be guaranteed.
It is not enough, I believe, to accord a discovery privilege that would yield before any plaintiff who can make a prima facie showing of falsity. See ante, at 197-198 (opinion of BRENNAN, J.). Unless a journalist knows with some certitude that his misgivings will enjoy protection, they may remain unexpressed. See 568 F.2d, at 994 (Oakes, J., concurring). If full disclosure is available whenever a plaintiff can establish that the press erred in some particular, editorial communication would not be demonstrably less inhibited than under the Court's approach. And by hypothesis, it is precisely those instances in which the risk of error is significant that frank discussion is most valuable.
Accordingly, I would foreclose discovery in defamation cases as to the substance of editorial conversation.6[b] Shielding
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this limited category of evidence from disclosure would be unlikely to preclude recovery by plaintiffs with valid defamation claims. For there are a variety of other means to establish deliberate or reckless disregard for the truth, such as absence of verification, inherent implausibility, obvious reasons to doubt the veracity or accuracy of information, and concessions or inconsistent statements by the defendant. See St. Amant v. Thompson, 390 U.S. 727, 732 (1968). To the extent that such a limited privilege might deny recovery in some marginal cases, it is, in my view, an acceptable price to pay for preserving a climate conducive to considered editorial judgment.
I would therefore direct the Court of Appeals to remand this case to the District Court for determination first, whether the questions concerning Lando's state of mind satisfy the criteria set forth in Part II of this opinion, and second, whether respondents waived the privilege defined in Part III for prepublication discussions.
* Briefs of amici curiae urging affirmance were filed by Arthur B. Hanson and Frank M. Northam for the American Newspaper Publishers Assn.; and by Dan Paul, Parker D. Thomson, Susan B. Werth, Alan R. Finberg, Corydon B. Dunham, Edgar A. Zingman, Richard M. Schmidt, Jr., Samuel E. Klein, J. Laurent Scharff, Robert C. Lobdell, Erwin G. Krasnow, Robert D. Sack, Gary G. Gerlach, Paul E. Kritzer, James A. Strain, and Robert Haydock for New York Times Co. et al.