The Mind of a Journalist

. . . is fair game in libel cases, says the Supreme Court

The nation's news organizations have been bemoaning so many lost First Amendment battles in the courts that they have begun to sound like a Greek chorus in a long running tragedy. In the past year, the U.S. Supreme Court has let New York Times Reporter Myron Farber go to jail for refusing to turn over his notes in a criminal trial, allowed Government investigators access to journalists' phone records, and in a decision that shocked many reporters, upheld a surprise police raid of a newspaper office. Last week the high court ruled 6 to 3 that newsmen must answer questions about what they were thinking when they prepared reports that resulted in libel suits. "The courts can take your notes, the Government can take your telephone records, and the police can march into the newsroom," said Jack Landau of the Reporters Committee for Freedom of the Press. "Now libel lawyers can go into your brain. I'd like to know what's left." Landau's fears were widely shared by journalists. But this time, their outcries may be unwarranted.

The case involves a 60 Minutes segment challenging the claim by Army Lieut. Colonel Anthony Herbert (ret.) that he had been relieved of his command for reporting U.S. atrocities in Viet Nam to his superiors. Herbert sued Producer Barry Lando, Correspondent Mike Wallace, CBS and the Atlantic Monthly (which published Lando's account of his investigation of Herbert) for a total of $44.7 million, claiming that he was made to look like a liar. During more than a year of exhaustive pretrial discovery, Lando sat through 26 sessions that produced 2,903 pages of transcript. He answered questions about what he knew or had seen, whom he interviewed and what he had learned. But he refused to tell Herbert's lawyers about his conversations with Wallace, or why he decided to believe certain sources but not others, or how he chose what to put on the air and what to leave in the cutting-room. A lower court ordered him to comply, and CBS appealed. Somewhat surprisingly, the network won a sweeping victory in 1977 from a federal court of appeals: an absolute privilege to refuse to answer any questions about editorial thoughts or conversations. "Faced with such an inquiry," wrote Judge Irving Kaufman, "reporters and journalists would be reluctant to express their doubts. Indeed, they would be chilled in the very process of thought."

Not many court watchers believed that reasoning would stand up in the Supreme Court. Writing for the majority, Justice Byron White asserted that the press already has a great deal of protection against libel suits. Ever since the landmark New York Times vs. Sullivan case in 1964, public officials--and, since 1966, public figures like Colonel Herbert-must prove "actual malice." That means that a journalist consciously lied or had serious doubts about the accuracy of his report. Sullivan thus made it essential to focus on the reporter's state of mind, argued White. Apparently, he added, no journalist has ever gone to court before to complain about these questions. In fact, press lawyers point out that a journalist can often help his case by testifying that even if he got his facts wrong, he did not realize it at the time. Many press lawyers even see Lando's loss as a blessing in disguise. If the court had barred state-of-mind questions, it might have abolished the actual malice standard and substituted one that made it easier for plaintiffs to prevail.

None of the Justices heeded Lando's argument that allowing questions about a reporter's thoughts would have a "chilling effect" on editorial decision making: White contended that only lies would be "chilled." Though they dissented, both Justice William Brennan and Justice Thurgood Marshall said they did not understand how a journalist could be prevented from thinking. Their concern was that journalists would be reluctant to discuss stories openly and frankly among themselves in the newsroom. Brennan would allow questions about these conversations only if the plaintiff could first show that he had been harmed by a false story; Marshall would ban them altogether.

In his majority opinion, Justice White did warn judges to be careful that the discovery process is not used for harassment or delay, in press cases or any others. Indeed, it may be that lengthy pretrial discovery, as Lando endured, is a much greater threat to freedom of the press than questioning a reporter's state of mind. Said Columbia Law School Professor Benno Schmidt: "Knowing that someone could tie you up for days in pretrial discovery at huge expense might be enough reason not to publish a story."

But the risk that a newspaper will be scared to print a story because it might be sued, or that sources will dry up if reporters are forced to, turn over their notes, carries little weight with a majority on the high court--especially when it is balanced against a strong interest like a fair trial. Often jealous of their prerogatives, trial court judges are even less sympathetic. They tend to reject First Amendment claims that might get in the way of the judicial process, like subpoenaing a reporter to testify in a criminal case. Some judges also bar reporters from pretrial hearings in criminal cases, a practice the high court will rule on this spring.

Indeed, most judges seem to feel that the press is already free and robust enough without benefit of any special privileges. Over the past ten or 20 years, the press has become "more consistently probing and aggressive," agrees Press Critic Ben Bagdikian. "Now the authorities are striking back." That is why, he explains, there have been so many court clashes with journalists in the past few years. Before 1970 very few reporters were subpoenaed. Now they are being haled into court at the rate of more than 100 a year.

The practical impact of the First Amendment decisions on the press is hard to measure. Richard Salant, who joins NBC as vice chairman next week after retiring as president of CBS News, acknowledges that the major news organizations can afford to pay legal bills. But Salant fears that top journalists will "just say to hell with it" rather than go after stories that are likely to drag them into interminable litigation or land them in jail. "The big boys can take care of themselves," says Lawyer Floyd Abrams, who represented both CBS in the Herbert decision and Farber. "But what of the smaller papers that don't have the money to fight these cases?" Other observers are concerned that fears of chilling effect will become a self-fulfilling prophecy: the more local officials, lawyers and judges conclude that the press lacks certain special First Amendment protection in these cases, the more the press will really need it.

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