Why does a reporter who interviews, say, five people choose to quote one at length and ignore the rest? Or, how does a reporter faced with two sources who contradict one another reach a decision that one of them is "more right" than the other?
The Federal Court of Appeals here ruled this week that reporters are protected from having to answer such questions in a decision that extended traditional legal protection of a free press into a new area, the pretrial questioning known as "discovery." At issue in the case, which will be appealed to the Supreme Court, is how a public figure seeking to sue a journalist for libel can gather evidence to prove his claim.
Under the Supreme Court's Sullivan decision, a public figure must not only prove that he has been libeled but also that the journalist acted with actual malice. Malice, argued attorney Jonathan Lubell in a losing cause before the appeals court, is a state of mind, and therefore the plaintiff should have the right to inquire into the journalist's state of mind.
The Sullivan decision did not preclude public figures' bringing libel actions, Lubell argued, but only established the special requirement than malice be proven, and therefore "discovery of relevant and material matters cannot realistically be said to have a chilling effect on the exercise of First Amendment rights."
Floyd Abrams argued for the defendants that "if the price of Sullivan is questions such as these, then its a very heavy price indeed." He told the appeals court that in opening journalists to such questions, the court would risk the pretrial discovery process itself becoming a source of inhibition to the press "without regard to the underlying merits" of the case itself. Frivolous legal actions could be brought, he suggested, imposing financial burdens on the press and making fishing-expedition probes into journalists' motives.
In writing for the majority (the court decision was 2 to 1), Kaufman agreed. "It is clear . . . that news-gathering and dissemination can be subverted by indirect, as well as direct, restraints.It is equally manifest that the vitality of the editorial process can be sapped too if we are not vigilant," Kaufman wrote.
Kaufman reversed District Judge Charles S. Haight, who had ruled that unless inquiries into journalists' states of mind were permissible in libel cases, "the law in effect provides an arras behind which malicious publication may go undetected and unpunished." The case that has brought to litigation for the first time the application of the Sullivan decision and related decisions to pretrial discovery is a $44 million libel suit that former Army Lt. Col. Anthony Herbert filed against CBS. In 1971, Herbert accused fellow officers of covering up atrocities committed by U.S. forces in Vietnam. His allegations made front pages across the country, and he went on to write a book. Two years later, CBS's "60 Minutes" accused Herbert of lying and seeking to cover his career failures by attacking others, according to Herbert's suit.
CBS producer Barry Lando met 26 times with Herbert's lawyers for pretrial questioning: his answers cover 2,903 pages, but he declined to respond to questions concerning what his lawyer characterized as his "beliefs, opinions, intent and conclusions."
Herbert's attorney, Lubell, says the appeals-court decision tips the balance significantly against libel plaintiffs and leaves those who have only circumstantial evidence "in a very hard position." He says it has not destroyed Herbert's case, but plans an appeal to the Supreme Court and hopes for a review before the libel action itself goes to trial.
Lubell noted that the Supreme Court recently refused to review an Idaho case in which a lower court had ordered a reporter to disclose his confidential sources in a libel case. "Revelation of sources has a much more chilling effect than what we are after," Lubell said.
Although cases involving journalists' FIrst Amendment protections abound, the issue of pretrial discovery in libel cases had not been litigated before, apparently because news organizations had generally not balked at answering inquiries into their thoughts and opinions.
"There are a lot of cases in which the reporter volunteered information," Lubell said. CBS News President Richard Salant said he was stunned when he learned that acquiescence had been the [WORD ILLEGIBLE]
The Supreme Court, therefore, will be considering whether the press has a new line of defense that makes it safer than has ever been spelled out before from libel action by public figures or whether reporters and editors will be compelled to answer questions that they apparently answered voluntarily in times when there were fewer attacks on and less scrutiny of their methods.