The U.S. court of Appeals ruled here today that a public figure bringing a libel action against a reporter cannot inquire into the thoughts, opinions and conclusions that went into editorial decisions concerning the news account.
"If we were to allow selective disclosures of how a journalist formulated his judgements on what to print or not to print, we would be condoning judicial review of the editor's thought processes," Chief Judge Irving Kaufman said in the majority decision.
In a case with broad implications for journalists' freedom of action, former Army Lt. Col. Anthony Herbert sought extensive pre-trial questioning of a CBS producer in connection with a $44.7 million libel suit accusing CBS of portraying him as a liar in a 1973 "60 minutes" broadcast.
Herbert had charged in 1973 that senior U.S. military officers covered up atrocities by American forces in Vietnam, but the CBS program cast doubt on a number of his statements - by then widely publicized.
Producer Barry Lando's answers to pre-trial questions covered 2,903 pages but he refused to reply to some questions relating to his opinions, intent and conclusions. A U.S. district court judge ordered him to answer those questions, and CBS appealed.
In reversing the order, Kaufman [WORD ILLEGIBLE] that the inquiries Herbert sought would have "grave implications [WORDS ILLEGIBLE] of the editorial process which the Supreme Court and this court have recognized must be guarded zealously."
[WORDS ILLEGIBLE] with the possibility of such inquiries "would be chilled in the very process of thought," Kaufman said.
Judge James Oakes wrote a concurring opinion.