WE THINK we are not just being hypersensitive when we say that there seems to be a pretty big difference these days between the way the press responds to a court decision upholding its First Amendment freedoms - and the way everyone else responds. Well, almost everyone else. The point is that what looks to us like a guarantee of the personal space required to do our job increasingly looks to others like a structure of special privileges, perks and exemptions that put the press beyond the reach of normal obligations and restraints. Another such decision - this one concerning liberal - was reached by a Federal Appeals Court in New York on Monday. And on the theory that there may not be unanimity on this thing (there wasn't even unanimity on the bench, the decision being 2 to 1), we will try to explain why we think the ruling was useful and wise.
The libel suit had been brought against CBS by former Army Lieut. Col. Anthony Herbert; he was the subject of a CBS program called "The Selling of Colonel Herbert," which questioned the veracity of some of the charges the disaffected colonel had been making about the military with whom he served in Vietnam. The case itself still has not been settled. What has been settled, unless Col. Herbert decides to appeal the ruling to the Supreme Court, is this: It is off-limits to the plaintiff in a libel case to inquire into a journalist-defendant's thoughts and opinions at the time he was putting together the offending story in order to establish the journalist's motives. The lower court judge had said Col. Herbert's attorneys could make such inquiries of a producer of "The Selling of Colonel Herbert." The Appeals Court said they could not.
The libel law, as it has been interpreted by the Supreme Court in its famous Sullivan decision and subsequent rulings, uses "malice" as the standard for determing liability. If you are a "public figure," as Col. Herbert is, and you wish to establish that you have been libeled, you must prove that the defendant knew that a damaging statement was false or had reckless disregard for the truth or falsity of the statement - such as failing to try to verify the defamatory material in the face of serious doubts about its truthfulness. You must establish, in other words, that the defendant was acting in bad faith.
Clearly, then, on grounds of practicality and efficiency, ther is an argument to be made for questioning the journalist-defendant about his motives. But there are strong reasons for ruling out this kind of inquiry, and Judge Irving R. Kaufman, who wrote the Appeals Court's decision, made them. Judge Kaufman observed that the producer in question had provided a great deal of material for the plaintiff to review and had "answered innumerable questions about what he knew, or had seen; whom he had interviewed; intimate details of his discussions with interviewees; and the form and frequency of his communications with sources." But he had drawn the line at "a small number of questions relating to his beliefs, opinions, intent and conclusions in preparing the program." In pronouncing this line to have been the correct one, Judge Kaufman said that a court ruling otherwise would have been "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."
It is, we will readily grant, easier to be in favor of a free and untrammeled press than it is to love the journalists who constitute it. In fact, we suspect that a lot of people would find it easier to swallow Judge Kaufman's opinion if it didn't mean also swallowing a measure of freedom and ease for a noisy, pushy, growly press. But that, alas, has something to do with the democratic condition. Sometimes you have to make choices. And the New York Appeals Court made the right one.