568 F.2d 974 (2nd Cir. 1977), 28, Herbert v. Lando

Docket Nº:28, Docket 77-7142.
Citation:568 F.2d 974
Party Name:Anthony HERBERT, Plaintiff-Appellee, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Atlantic Monthly Company, Defendants, Barry Lando, Mike Wallace and CBS Inc., Defendants-Appellants.
Case Date:November 07, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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568 F.2d 974 (2nd Cir. 1977)

Anthony HERBERT, Plaintiff-Appellee,


Barry LANDO, Mike Wallace, Columbia Broadcasting System,

Inc., Atlantic Monthly Company, Defendants,

Barry Lando, Mike Wallace and CBS Inc., Defendants-Appellants.

No. 28, Docket 77-7142.

United States Court of Appeals, Second Circuit

November 7, 1977

Argued Sept. 2, 1977.

Certiorari Granted March 20, 1978.

See 98 S.Ct. 1483.

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Floyd Abrams, New York City (Dean Ringel, Kenneth M. Vittor and Cahill, Gordon & Reindel, Carleton Eldridge, Jr., Paul Byron Jones, and Coudert Brothers, Richard G. Green, Adria S. Hillman and Green & Hillman, New York City, of counsel), for defendants-appellants Barry Lando, Mike Wallace, and CBS Inc.

Jonathan W. Lubell, New York City (Mary K. O'Melveny, Samuel Estreicher, and Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, of counsel), for plaintiff-appellee, Anthony Herbert.

Richard Schmidt, Jr., Washington, D. C. (Cohn & Marks, Washington, D. C., of counsel), Dan Paul, Miami, Fla. (Paul & Thomson, Miami, Fla., of counsel), James C. Goodale, New York City, Daniel Feldman, Chicago, Ill. (Isham, Lincoln & Beale, Chicago, Ill., of counsel), Corydon B. Dunham, New York City, J. Laurent Scharff, Washington, D. C. (Pierson, Ball & Dowd, Washington, D. C., of counsel), filed a brief for the American Society of Newspaper Editors, Chicago Sun-Times, Chicago Daily News, The Miami Herald Publishing Co., National Broadcasting Co., Inc., The New York Times Co., and Radio Television News Directors Ass'n, amici curiae.

Before KAUFMAN, Chief Judge, and OAKES and MESKILL, Circuit Judges.


The seemingly narrow issue before us the scope of protection afforded by the First Amendment to the compelled disclosure of the editorial process has broad implications. Called upon to decide whether, and to what extent, a public figure bringing a libel action may inquire into a journalist's thoughts, opinions and conclusions in preparing a broadcast, we must address initially the fundamental relationship between the First Amendment guarantee of a free press and the teaching of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In accommodating both these interests within our constitutional scheme, we find that due regard to the First Amendment requires that we afford a privilege to disclosure of a journalist's exercise of editorial control and judgment.


Almost two centuries ago, James Madison decried the Sedition Act of 1798 as a basic departure from our nation's commitment to a free and untrammeled press. He wrote,

Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. 1

The force of his words has not diminished over time. We still recognize that an unrestrained press plays a vital role in the marketplace of ideas and that, without active trade in that marketplace, democracy cannot survive. Cf. Garrison v. Louisiana, 379

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U.S. 64-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). 2

Invoking the broad words of the First Amendment, the Supreme Court has never hesitated to forge specific safeguards to insure the continued vitality of the press. It has repeatedly recognized the essentially tripartite aspect of the press's work and function in: (1) acquiring information, 3 (2) 'processing' that information and (3) disseminating the information. The Supreme Court was aware that if any link in that chain were broken, the free flow of information inevitably ceases. 4

The dissemination of news has long been accorded constitutional protection. 5 In Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), Chief Justice Hughes, writing for the Court, struck down a Minnesota statute which allowed the state to enjoin the publication of newspapers containing "malicious, scandalous, and defamatory" matter. The Chief Justice noted that prior restraints on the press were impermissible, notwithstanding the possibility that the information suppressed was libelous. In particular, the fundamental obligation of the press to act as a fourth branch in disclosing official misconduct was stressed:

The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials . . . emphasizes the primary need of a vigilant and courageous press. Id., 283 U.S. at 719-20, 51 S.Ct. at 632.

The tenet expressed in Near that prior restraints on publication will not lightly be tolerated has, time and time again, been reiterated under circumstances which accentuate Chief Justice Hughes's concerns. See, e. g., New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). 6

Such anticipatory censorship is not even justified by the presence of a countervailing constitutional interest such as an individual's Sixth Amendment right to a

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fair trial. 7 Before imposing a gag order, the judges have been admonished that they must carefully consider alternative methods to mitigate the effects of pre-trial publicity. Change of venue and other procedures have been suggested. Nebraska Press Association v. Stuart,427 U.S. 539, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Nor has the Supreme Court shown any hesitation to invalidate restraints on the press which do not follow conventional patterns where it finds the free flow of information imperiled. In Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), the Court struck down a tax imposed by the State of Louisiana on newspaper advertisements because it was graduated to reflect circulation levels. 8 The Court opined that such a tax would lower advertising revenues and restrict circulation. Id. at 244-5, 56 S.Ct. 444. 9 Even the one governmental control antitrust legislation that has long been applied to the press and does not contravene the First Amendment has been justified by its instrumental role in insuring the broad distribution of news:

The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945).

The acquisition of newsworthy material stands at the other pole of the press's function. Freedom to cull information is logically antecedent and necessary to any effective exercise of the right to distribute news. Indeed, the latter prerogative cannot be given full meaning unless the former right is recognized. See Note, The Right of The Press to Gather Information, 71 Col.L.Rev. 838 (1971).

The Supreme Court has acknowledged this compelling need. 10 In Branzburg v. Hayes, 408 U.S. 655, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court recognized the right of the press to gather information, since "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681, 92 S.Ct. at 2656. Justice Powell, in a concurring opinion, articulated the principle that news gathering is afforded constitutional protection even in the rare case where a reporter was directed to disclose his sources to a grand jury. He noted that a reporter would not be required to furnish information to a grand jury bearing only a remote and tenuous relationship to the subject matter of its investigation. Id. at 711, 92 S.Ct. 2646. See also Goodale, Branzburg v. Hayes and the Developing Privilege for Newsmen, 26 Hastings L.J. 709 (1975). 11

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This court has elaborated on the privilege established by Branzburg. In Baker v. F & F Investment, 470 F.2d 778, 782-3 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973), we held that a reporter did not have to disclose the source of an article he had written about blockbusting in Chicago, although subpoenaed to do so in a class action charging racial discrimination. We noted that "there are circumstances . . . in which the public interest in non-disclosure of a journalist's confidential sources outweighs the public and private interest in compelled testimony." Id. at 782. The nature of that public interest was clear: the stream of information would rapidly run dry if confidential sources, fearing the disclosure of their identities, remained silent. 12

The constitutional protections afforded the dissemination and acquisition of information has inevitably led the Supreme Court to recognize that the editorial process must equally be safeguarded. The media is not a conduit which receives information and, senselessly, spews it forth. The active exercise of human judgment must transform the raw data of reportage into a finished product. The Supreme Court cases which grant protection to the editor so shaping the news are unequivocal in their terms. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), the Court unanimously held that a newspaper could not be compelled by the state to accept editorial replies. The Court recognized that the treatment of public issues and officials whether fair or unfair constituted the exercise of editorial control and judgment, and that the existence of a right of reply statute would unconstitutionally burden an editor's exercise of judgment in choosing whether or not to print newsworthy material. Id. at 257, 94 S.Ct. 2831.

The Court in...

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