WHEN TWO FUNDAMENTAL values collide, as they did in the libel case decided by the Supreme Court Wednesday, one must give way. This time it was a claim by the news media that the "editorial process"-the way in which decisions are reached about what to publish or broadcast-is protected from judicial scrutiny by the First Amendment. While the claim may well have been too broad, given the value with which it was colliding, the way in which the Court brushed it aside opens the door to serious limitations on freedom of the press.
Any official inquiry into the way reporters and editors decide what to publish has the potential of inhibiting the vigor with which news is pursued. It would therefore undermine one activity on which the society has placed a high value: the dissemination of all the information and opinions that a robust and unintimidated press can provide.
In constant competition and conflict with that purpose is another: ensuring that the information provided is not false and unfiarly damaging to individuals. That is the basis for the libel laws that give public and private figures the right to collect damages if they have been harmed by false information.
To keep those libel laws from intimidating the press, the court some years ago said public figures can win libel cases only if the false information had been published in "reckless" disregard of the truth. That is what presented the problem in this case. Just as an inquiry into the thoughts and conversations of editors and reporters may restrain their exercise of First Amendment rights, the absence of such an inquiry may make it impossible for a public figure to prove that those editors and reporters acted recklessly or published information knowing it to be false. So it is inevitable that once an editor testifies he believed the material in question was true, the next question will be-"Why?" The answer thrusts the inquiry into the middle of the editorial decision-making process.
Resolving such a conflict-deciding which of the two admirable public purposes will prevail and doing so in a way that preserves the essence of each-is not easy. Unfortunately, the resolution reached by the court is a troubling one for people in our business. That is because it appears to let those who claim they have been libeled launch their inquiries into the thought processes of the press before they have established that the published material was false and defamatory. This would open the editorial process of every organization engaged in communications to fishing expeditions by plaintiffs whose claims are cynical, cheap or ludicrous, not just to those whose claims are serious and valid. This danger is made worse because the inquiries come in a pretrial discovery proceeding over which judges usually exercise little control and which often wander far afield from the real issues in controversy.
It would have been far better if the court had taken the suggestion of Justice William J. Brennan. He argued that the inquiry into why something was published and what editors and reporters thought as they reached their decisions should begin only after an apparent case had been established that false and damaging material had been published. This would be similar to the way claims of "executive privilege" are treated. That privilege protects executive-branch decision-making from general inquiries, but it yields when there is a demonstrated need for specific evidence in a lawsuit.
Much now depends upon how lower court judges apply this decision. If they limit inquiries into the state of mind of news personnel to questions which are clearly relevant to vital issues in serious cases that cannot otherwise be resolved, not much damage will have been done. If they do not, the damage will be substantial.