herbert lando argued october decided april petitioner instituted diversity action federal district respondents television network two employees magazine alleging program aired network article published magazine defamed petitioner conceded public figure first fourteenth amendments precluded recovery absent proof respondents published damaging falsehoods actual malice knowledge statements false reckless disregard whether false see new york times sullivan subsequent decisions preparing prove case light requirements petitioner deposed one network employees length sought order compel answers variety questions response refused ground first amendment protected inquiry state mind edit produce publish editorial process district ruled questions relevant rejected claim constitutional privilege divided panel appeals reversed two judges concluding first amendment lent sufficient protection editorial processes protect network employee inquiry thoughts opinions conclusions respect material gathered conversations editorial colleagues held member press alleged circulated damaging falsehoods sued injury plaintiff reputation privilege first amendment guarantees freedom speech freedom press barring plaintiff inquiring editorial processes responsible publication inquiry produce evidence material proof critical element plaintiff cause action pp contrary views appeals according absolute privilege editorial process media defendant libel case required authorized presaged prior cases substantially enhance burden proving actual malice contrary expectations new york times sullivan supra curtis publishing butts similar cases new york times progeny suggest first amendment restriction sources plaintiff obtain necessary evidence prove critical elements cause action contrary make essential proving liability plaintiff focus defendant conduct state mind also untenable conclude prior cases although proof necessary state mind form objective circumstances ultimate fact inferred plaintiffs may inquire directly defendants whether knew suspected damaging publication error pp case modifying firmly established constitutional doctrine placing beyond plaintiff reach range direct evidence relevant proving knowing reckless falsehood publisher alleged libel elements critical plaintiff petitioner means clear convincing suggested privilege editorial process constitute substantial interference ability defamation plaintiff establish ingredients malice required new york times furthermore outer boundaries suggested editorial privilege difficult perceive important interests petitioner defamation plaintiffs stake opposing creation asserted privilege overridden ground requiring disclosure editorial conversations reporter conclusions veracity material gathered intolerable chilling effect editorial process editorial decisionmaking claimed inhibition flows fear damages liability publishing knowing reckless falsehoods effects precisely held consistent first amendment pp creating constitutional privilege foreclosing direct inquiry editorial process cure press problem escalating costs burdens incident defamation litigation complete immunity liability defamation effect result regularly found untenable construction first amendment furthermore mushrooming litigation costs much due pretrial discovery peculiar libel slander area unless major changes present federal rules civil procedure reliance must fact law ample powers district judge prevent abuse pp white delivered opinion burger blackmun powell rehnquist stevens joined powell filed concurring opinion post brennan filed opinion dissenting part post stewart post marshall post filed dissenting opinions jonathan lubell argued cause petitioner briefs mary floyd abrams argued cause respondents brief dean ringel kenneth vittor carleton eldridge richard green briefs amici curiae urging affirmance filed arthur hanson frank northam american newspaper publishers assn dan paul parker thomson susan werth alan finberg corydon dunham edgar zingman richard schmidt samuel klein laurent scharff robert lobdell erwin krasnow robert sack gary gerlach paul kritzer james strain robert haydock new york times et al justice white delivered opinion virtue first fourteenth amendments neither federal state government may make law abridging freedom speech press question whether amendments construed provide protection press sued defamation hitherto recognized specifically urged hold first time member press alleged circulated damaging falsehoods sued injury plaintiff reputation plaintiff barred inquiring editorial processes responsible publication even though inquiry produce evidence material proof critical element cause action petitioner anthony herbert retired army officer extended wartime service vietnam received widespread media attention accused superior officers covering reports atrocities war crimes three years later february respondent columbia broadcasting system cbs broadcast report petitioner accusations program produced edited respondent barry lando narrated respondent mike wallace lando later published related article atlantic monthly magazine herbert sued lando wallace cbs atlantic monthly defamation federal district basing jurisdiction diversity citizenship complaint herbert alleged program article falsely maliciously portrayed liar person made charges explain relief command requested substantial damages injury reputation literary value book published recounting experiences although cause action arose new york state defamation law herbert conceded public figure first fourteenth amendments precluded recovery absent proof respondents published damaging falsehood actual malice knowledge false reckless disregard whether false holding new york times sullivan respect alleged libels public officials extended public figures curtis publishing butts rule absent knowing falsehood liability requires proof reckless disregard truth defendant fact entertained serious doubts truth publication amant thompson subjective awareness probable falsity gertz robert welch may found obvious reasons doubt veracity informant accuracy reports amant thompson supra preparing prove case light requirements herbert deposed lando length sought order compel answers variety questions response refused ground first amendment protected inquiry state mind edit produce publish editorial process applying standard fed rule civ proc permits discovery matter relevant subject matter involved pending action either admissible evidence appears reasonably calculated lead discovery admissible evidence district ruled defendant state mind central importance issue malice case obvious questions relevant entirely appropriate herbert efforts discover whether lando reason doubt veracity certain sources equally significant prefer veracity one source another sdny district rejected claim constitutional privilege found nothing first amendment relevant cases permit require increase weight injured plaintiff already heavy burden proof effect creating barriers behind malicious publication may go undetected unpunished case certified interlocutory appeal appeals agreed hear case divided panel reversed district two judges writing separate overlapping opinions concluded first amendment lent sufficient protection editorial processes protect lando inquiry thoughts opinions conclusions respect material gathered conversations editorial colleagues privilege answer held absolute granted certiorari importance issue involved concluded appeals misconstrued first fourteenth amendments accordingly reverse judgment ii civil criminal liability defamation well established common law first amendment adopted indication framers intended abolish liability new york times prevailing jurisprudence ibelous utterances within area constitutionally protected speech beauharnais illinois see also roth chaplinsky new hampshire near minnesota ex rel olson accepted view neither civil criminal liability defamatory publications abridges freedom speech freedom press majority jurisdictions made publishers liable civilly defamatory publications regardless intent new york times butts effected major changes standards applicable civil libel actions cases public officials public figures sue defamation must prove knowing reckless falsehood order establish liability later gertz robert welch held nonpublic figures must demonstrate fault defendant part least knowing reckless untruth shown proof actual injury plaintiff liability may imposed damages awarded cases rested primarily conviction common law libel gave insufficient protection first amendment guarantees freedom speech freedom press avoid essential liability damages conditioned specified showing culpable conduct publish damaging falsehood given required proof however damages liability defamation abridges neither freedom speech freedom press cases suggest first amendment restriction sources plaintiff obtain necessary evidence prove critical elements cause action contrary new york times progeny made essential proving liability plaintiff focus conduct state mind defendant liable alleged defamer public officials public figures must know reason suspect publication false cases proof kind fault negligence perhaps essential recovery inevitably unless liability completely foreclosed thoughts editorial processes alleged defamer open examination also untenable conclude cases although proof necessary state mind form objective circumstances ultimate fact inferred plaintiffs may inquire directly defendants whether knew reason suspect damaging publication error butts example evident record editorial process subjected close examination direct well indirect evidence relied prove defendant magazine acted actual malice damages verdict sustained without suggestion plaintiff proof trenched upon forbidden areas reliance upon evidence means recent development arising new york times similar cases rather deeply rooted rule predating first amendment showing malice part defendant permitted plaintiffs recover punitive enhanced damages butts affirmed substantial award punitive damages georgia conditioned upon showing wanton reckless indifference culpable negligence ill spite hatred intent injure neither justice harlan chief justice warren concurring raised question propriety award turn showing propriety underlying evidence plainly included direct evidence going state mind publisher responsible agents furthermore long new york times decided certain qualified privileges developed protect publisher liability libel unless publication made malice malice defined numerous ways general depended upon showing defendant acted improper motive showing turn hinged upon intent purpose publication made belief defendant truth statement upon ill defendant might borne toward plaintiff courts traditionally admitted direct indirect evidence relevant state mind defendant necessary defeat conditional privilege enhance damages rules applicable press defendants alike evident courts across country long accepting evidence going editorial processes media without encountering constitutional objections face history old new appeals nevertheless declared two cases announced unequivocal protection editorial process cases miami herald publishing tornillo columbia broadcasting system democratic national committee invalidated governmental efforts editorial decision requiring publication specified material columbia broadcasting system requirement television network air paid political advertisements tornillo newspaper obligation print political candidate reply press criticism insofar laws issue tornillo columbia broadcasting system sought control advance content publication deemed invalid prior efforts enjoin publication specified materials holdings neither state federal government may dictate must must printed neither expressly impliedly suggest editorial process immune inquiry whatsoever incredible believe columbia broadcasting system tornillo silently effected substantial contraction rights preserved defamation plaintiffs sullivan butts like cases tornillo gertz robert welch announced day although opinion gertz contained overview recent developments relationship first amendment law libel hint companion case narrowed evidence available defamation plaintiff quite opposite inference drawn gertz opinion since like prior first amendment libel cases recited without criticism facts record indicating state mind editor placed issue gertz opinion requiring proof degree fault part defendant editor forbidding punitive damages absent least reckless disregard truth falsity suggest first amendment also foreclosed direct inquiry critical elements sum contrary views appeals according absolute privilege editorial process media defendant libel case required authorized presaged prior cases substantially enhance burden proving actual malice contrary expectations new york times butts similar cases iii nevertheless urged respondents balance struck new york times modified provide protections press sued circulating erroneous information damaging individual reputation uncommon improper course suggest abandonment modification refinement existing constitutional interpretation notable developments first amendment jurisprudence evolved submissions years since new york times doctrine announced case represented major development widely perceived essentially protective press freedoms repeatedly affirmed appropriate first amendment standard applicable libel actions brought public officials public figures curtis publishing butts amant thompson gertz robert welch time firestone time however reiterated conviction reflected laws defamation individual interest reputation also basic concern gertz robert welch supra thus asked modify firmly established constitutional doctrine placing beyond plaintiff reach range direct evidence relevant proving knowing reckless falsehood publisher alleged libel elements critical plaintiffs herbert case making modification means clear convincing decline accept first place plain enough suggested privilege editorial process constitute substantial interference ability defamation plaintiff establish ingredients malice required new york times respondents defendant reckless disregard truth critical element shown direct evidence inquiry thoughts opinions conclusions publisher proved objective evidence ultimate fact inferred may plaintiffs rarely successful proving awareness falsehood mouth defendant relevance answers inquiries district recognized appeals deny hardly doubted erect impenetrable barrier plaintiff use evidence side case matter substance particularly defendants prone assert belief truth publications libel plaintiffs required prove knowing reckless falsehood convincing clarity new york times sullivan furthermore outer boundaries editorial privilege urged difficult perceive opinions state respondents explain precisely editorial process begins ends moreover although told respondent lando willing testify knew learned interviews opposed believed clear suggested editorial privilege cover knowledge well belief veracity published reports worth noting privilege asserted respondents also immunize inquiry internal communications occurring editorial process thus place beyond reach defendant participants learned knew result collegiate conversations exchanges damaging admissions colleagues barred evidence reporter admissions made third parties participating editorial process also immune inquiry thus little doubt herbert defamation plaintiffs important interests stake opposing creation asserted privilege nevertheless urged respondents override important interests requiring disclosure editorial conversations reporter conclusions veracity material gathered intolerable chilling effect editorial process editorial decisionmaking claimed inhibition flows fear damages liability publishing knowing reckless falsehoods effects precisely new york times cases held consistent first amendment spreading false information carries first amendment credentials constitutional value false statements fact gertz robert welch supra realistically however error inevitable difficulties separating fact fiction convinced new york times butts gertz similar cases limit liability instances degree culpability present order eliminate risk undue suppression truthful material publish defamatory falsehoods requisite culpability however subject liability aim compensate injury also deter publication unprotected material threatening injury individual reputation permitting plaintiffs herbert prove cases direct well indirect evidence consistent balance struck prior decisions proof results liability damages turn discourages publication erroneous information known false probably false cases contemplate abridge either freedom speech press course inquiry editorial conclusions threatens suppression information known strongly suspected unreliable also truthful information issue quite different said cases necessarily contemplate examination editorial process prove necessary awareness probable falsehood indirect proof element stifle truthful publication consistent first amendment respondents seem concede understand direct inquiry respect ultimate issue substantially suspect perhaps examination lead liability found without suggest determinations instances inaccurate lead suppression protected information contrary direct inquiry actors affords opportunity refute inferences might otherwise drawn circumstantial evidence suggests accurate results obtained placing rather part evidence decisionmaker suppose example reporter two contradictory reports plaintiff one false damaging false one published resolving issue whether publication known suspected false common sense believe inquiry author opportunity explain contribute accuracy publication false exonerating explanation defendant surely testify effect plaintiff permitted inquire trial hand publisher fact serious doubts accuracy published nevertheless undue result permitting relevant inquiry knowing reckless error discouraged unless absolute first amendment privilege inflict injury knowing reckless conduct respondents suggest constitutional values threatened also urged frank discussion among reporters editors dampened sound editorial judgment endangered exchanges oral written subject inquiry defamation plaintiffs doubt direct relationship consultation discussion one hand sound decisions whether liability injury press obvious interest avoiding infliction harm publication false information unreasonable expect media invoke whatever procedures may practicable useful end moreover given exposure liability knowing reckless error even reason resort prepublication precautions frank interchange fact opinion accordingly find difficult believe procedures terminated stifled simply liability culpable error editorial process examined tiny percentage instances error claimed litigation ensues sound reason believe editorial exchanges editorial process subject distortion recurring misunderstanding immune examination order avoid erroneous judgments defamation suits evidentiary burden herbert must carry prove least reckless disregard truth substantial indeed unconvinced chances winning undeserved verdict inquiry lando learned said editorial process must foreclosed say editorial discussions exchanges constitutional protection casual inquiry law subjects editorial process private official examination merely satisfy curiosity serve general end public interest survive constitutional scrutiny first amendment presently construed problem exists however specific claim injury arising publication alleged knowingly recklessly false evidentiary privileges litigation favored even rooted constitution must give way proper circumstances president example absolute privilege disclosure materials subpoenaed judicial proceeding nixon holding found although president powerful interest confidentiality communications advisers interest must yield demonstrated specific need evidence stated referring existing limited privileges disclosure hatever origins exceptions demand every man evidence lightly created expansively construed derogation search truth considerations mind conclude present construction first amendment modified creating evidentiary privilege respondents urge iv although defamation litigation including suits press ancient phenomenon true cases new york times gertz considerably changed profile cases years gone plaintiffs made prima facie case proving damaging publication truth privilege defenses intent motive malice necessarily involved except counter qualified privilege prove exemplary damages plaintiff burden considerably expanded every almost every case plaintiff must focus editorial process prove false publication attended degree culpability part publisher plaintiffs consequence resort discovery surprising follow costs burdens kind litigation escalate become much troublesome plaintiffs defendants suggested press needs constitutional protection burdens perform task indispensable system creating constitutional privilege foreclosing direct inquiry editorial process however cure problem press complete immunity liability defamation effect result regularly found untenable construction first amendment furthermore mushrooming litigation costs much due pretrial discovery peculiar libel slander area repeated expressions concern undue uncontrolled discovery voices joined chorus unless major changes present rules civil procedure reliance must fact law ample powers district judge prevent abuse declared rules accorded broad liberal treatment effect purpose adequately informing litigants civil trials schlagenhauf holder hickman taylor discovery provisions like federal rules civil procedure subject injunction rule construed secure speedy inexpensive determination every action emphasis added end requirement rule material sought discovery relevant firmly applied district courts neglect power restrict discovery justice requires protection party person annoyance embarrassment oppression undue burden expense rule authority hand judges hesitate exercise appropriate control discovery process whether nonconstitutional matter however trial judge properly applied rules discovery within boundaries question certified accordingly us judgment appeals reversed ordered footnotes appeals summarized inquiries lando objected follows lando conclusions research investigations regarding people leads pursued pursued connection minutes segment atlantic monthly article lando conclusions facts imparted interviewees state mind respect veracity persons interviewed basis conclusions lando testified reach conclusion concerning veracity persons information events conversations lando wallace matter included excluded broadcast publication lando intentions manifested decision include exclude certain material respondents petition leave appeal interlocutory order granted stated issue appeal follows effect given first amendment protection press respect exercise editorial judgment discovery libel case governed new york times sullivan see restatement torts pedrick freedom press law libel modern revised translation corn developments law defamation harv rev peck tribune justice holmes summarized prevailing view strict liability course reviewing libel judgment rendered federal diversity citizenship action suggestion defendant published portrait mistake without knowledge plaintiff portrait purported fact one excuse publication libellous defendant took risk said matters lord mansfield whatever man publishes publishes peril king woodfall lofft reason plain libel harmful face man sees fit publish manifestly hurtful statements concerning individual without justification exists advertisement piece news usual principles tort make liable statements false true one else definition fault responsibility state laws gertz robert welch see justice harlan writing plurality reviewed record standard preferred apply public figures upheld verdict plaintiff chief justice warren independently reviewed record actual malice standard new york times also concluded concurring opinion verdict upheld evidence relied summarized opinions included substantial amounts testimony fall within privilege defined respondents record included depositions author defamatory article individual paid assist author preparation sports editor saturday evening post managing editor editor chief depositions revealed saturday evening post motives publishing story record pp sources conversations among editors author concerning research development article decisions reasons relating interviewed investigated conclusions importance veracity sources information presented article conclusions impact publishing article subject justice brennan writing justice white also thought evidence record sufficient satisfy new york times malice standard quite unlikely arrived result believed inquiry editorial processes constitutionally forbidden engaged similar analysis record reversing judgments entered companion case butts associated press walker warren concurring time hill hill record included edited drafts allegedly libelous article examination author examination writer explained detail preparation article thoughts conclusions beliefs regarding material analysis article explanations additions deletions made various drafts butts editorial process focus much evidence direct inquiry made state mind media defendants yet raised question propriety proof hanson libel related torts developments law defamation supra jur libel slander libel slander restatement originally provided separate section award punitive damages malicious defamations restatement torts tent draft one liable harm another reputation caused publication libel slander also liable punitive damages defamatory matter published knowledge falsity published reckless indifference truth falsity solely purpose causing harm plaintiff reputation legally protected interest gertz robert welch supra limited entitlement punitive damages damages still awardable upon showing knowing reckless falsehood justice harlan noted jury instructed considering punitive damages assess reliability nature sources defendant information acceptance rejection sources care checking upon assertions emphasis added justice found nothing amiss either instruction result jury reached justice brennan dissenting butts case analyzed instructions differently raised question constitutionality turning award either compensatory punitive damages upon direct well circumstantial evidence going mental state defendant see supra see nalle oyster white nicholls plucknett concise history common law ed hallen character belief necessary conditional privilege defamation rev white nicholls supra surveyed common law summarized privilege follows thus taken view authorities treat doctrines slander libel considered authorities particularly reference distinction establish ordinary instances slander written unwritten styled privileged communications peculiar character said exempt inferences law created respect cases partake character examination extended may seem called importance subject intimately connected rights happiness individuals quiet good order society investigation conducted us following conclusions propound law applicable thereto every publication either writing printing pictures charges upon imputes person renders liable punishment calculated make infamous odious ridiculous prima facie libel implies malice author publisher towards person concerning publication made proof malice therefore cases described never required party complaining beyond proof publication justification excuse extenuation either shown must proceed defendant description cases recognised privileged communications must understood exceptions rule founded upon apparently recognised obligation motive legal moral social may fairly presumed led publication therefore prima facie relieves implication general rule law deduced rule evidence cases accordingly far changed impose plaintiff remove presumptions flowing seeming obligations situations parties require bring home defendant existence malice true motive conduct beyond extent presumption permitted operate much less made sanctify indulgence malice however wicked however express protection legal forms conclude malice may proved though alleged existed proceedings legislative body tribunal authority although legislative body tribunal may appropriate authority redressing grievance represented proof express malice written publication petition proceeding addressed tribunal render publication petition proceeding libellous character actionable subject author publisher thereof consequences libel hallen supra jurisdictions defendant forfeited privilege published negligently without probable cause believe statement true see white nicholls supra see jur supra existence actual malice may shown many ways general rule competent evidence either direct circumstantial resorted relevant circumstances surrounding transaction may shown provided remote including threats prior subsequent defamations subsequent statements defendant circumstances indicating existence rivalry ill hostility parties facts tending show reckless disregard plaintiff rights action newspaper custom usage respect treatment news items nature one consideration plaintiff may show defendant drawn pistol time uttered words complained defendant tried kiss embrace plaintiff prior defamatory publication defendant failed make proper investigation publication statement question defendant may questioned intent making publication footnotes citations omitted odgers digest law libel slander ed bigelow jur supra supra cf odgers supra holt law libel ed billet publishing la scores libel cases courts addressed general issue admissibility evidence excluded privilege asserted affirmed relevance admissibility evidence behalf libel plaintiffs see johnson publishing davis editor may meaning intended conveyed passages magazine article freeman mills cal app malice may established direct proof state mind person evidence existence may inferred scott cal relevant circumstances concerning publication admissible sandora times relevant evidence including direct evidence state mind surrounding circumstances city editor reporter called stand questioned extensively motives circumstances publication general practices rice simmons del question malice issue declarations publisher time publication admissible part res gestae western union telegraph vickers app relevant evidence admissible including direct evidence state mind surrounding circumstances cook east shore newspapers app relevant evidence concerning circumstances publications admissible including testimony reporters employees defendant berger freeman tribune publishing iowa relevant evidence thompson globe newspaper mass evidence state mind agents defendant entrusted determining shall published admissible material conroy fall river herald news mass relevant evidence defendant malice cyrowski pub testimony individuals advised reporter question plaintiff publishing defamatory article admissible issue malice friedell blakely printing relevant evidence admissible cook globe printing mo evidence showing defendant editorial manager knew important fact false admissible question malice butler gazette app div evidence admissible prove actual malice defendant briggs byrd express malice may proved either direct evidence surrounding circumstances mcburney times publishing relevant evidence admissible rebut testimony reporters editors published without malice lancour herald globe relevant evidence malice farrar tribune publishing circumstances surrounding publication relevant admissible similarly courts uniformly admitted evidence behalf defendant see bohan record pub cal app testimony good faith hearne de young cal testimony sources precautions taken good faith ballinger democrat iowa testimony reporter editor good faith admissible snyder tribune iowa testimony source information good faith reporter admissible phillips testimony reporter good faith conner standard pub mass testimony source information davis marxhausen testimony good faith proper precautions taken publishing julian kansas city star mo testimony thoughts intentions time publication admissible paxton woodward mont testimony motive good faith sources las vegas sun franklin testimony publisher good faith lindsey evening journal misc testimony good faith kohn publishing app div source hains new york evening journal sup source goodrow malone telegram app div reporter testimony source goodrow press app div defendant testify introduce evidence good faith time publication kehoe new york tribune app div testimony good faith admissible prevent imposition punitive damages varvaro american agriculturist app div defendant may testify introduce evidence lack malice van arsdale time sup aff app div weichbrodt new york evening journal sup defendant may testify good faith probable cause cleveland leader printing nethersole ohio testimony good faith cobb oklahoma pub defendant testimony lack malice source information times pub ray tex civ app aff testimony lack malice pfister milwaukee free press testimony absence malice none cases much suggested special limits applicable press discoverability evidence either trial stated tornillo government agency local state federal tell newspaper advance print quoting pittsburgh press human relations stewart dissenting two years later time firestone likewise indication plaintiff subject substantial evidentiary restrictions proving defendant fault justice powell justice stewart stated concurrence answer question culpability depends upon careful consideration relevant evidence concerning time actions prior publication milestones article suggested remand evidence record considered included evidence going beliefs time editorial staff see see cases collected supra media defendants asserted courts upheld right present type evidence trial order establish good faith lack malice also suggested oral argument privilege cover questions form type tr oral arg evident lando deposition questions soliciting answers relating editorial process answered tr deposition refused answer others fall category see tr oral arg kind question respondents seek avoid answering admission easiest answer see tr oral arg hey questions side hese difficult questions answer often libel defendant first presents trial direct evidence editorial process order establish good faith lack malice true new york times sullivan see record many cases cited supra invoke observation nixon hose expect public dissemination remarks may well temper candor concern appearances interests detriment decisionmaking process justice brennan extend constitutional protection editorial discussion excusing answers relevant questions conversations plaintiff made prima facie case falsity suggestion contemplates bifurcated trial first falsity culpability injury decline subject libel trials burdensome complications intolerable delay hand seems likely prima facie showing contemplate minitrial falsity resolution conflicting evidence issue credible assertion plaintiff smacks requirement satisfied affidavit simple verification pleadings reluctant imbed formalism constitution see elkins frankfurter dissenting limitations properly placed upon operation general principle testimonial privilege limited extent permitting refusal testify excluding relevant evidence public good transcending normally predominant principle utilizing rational means ascertaining truth see also wigmore evidence mcnaughton rev works jeremy bentham bowring ed urged large costs defending lawsuits intimidate press lead particularly smaller newspapers broadcasters involved noted lando deposition alone continued intermittently year filled volumes containing nearly pages exhibits well expenses deposition substantial legal fees lando associates diverted news gathering reporting significant amount time blue chip stamps manor drug stores acf industries eeoc powell joined stewart rehnquist dissenting denial certiorari burger agenda need systematic anticipation address pound conference committee rules practice procedure judicial conference proposed amendments federal rules civil procedure designed ameliorate problem preliminary draft proposed amendments federal rules civil procedure justice stewart remand trial rule relevance disputed questions opinion trial judge reveals correctly understood new york times gertz required herbert prove either knowing falsehood reckless disregard truth proper constitutional elements mind judge went rule questions issue clearly relevant constitutional privilege excused lando answering hold judge committed constitutional error contrary justice stewart find inappropriate review rulings relevancy justice powell concurring join opinion write separately elaborate said part iv see observations inconsistent opinion rather write emphasize additional point supervising discovery libel suit public figure district duty consider first amendment interests well private interests plaintiff agree explicit constitutional protection first amendment rights case kind articulated new york times sullivan expanded create evidentiary privilege respect pretrial discovery civil proceeding whatever protection exercise editorial judgment enjoys depends entirely protection first amendment accords product judgment namely published speech makes clear privilege respondents claim unnecessary safeguard published speech holding requires reversal judgment appeals notes however whether trial judge properly applied rules discovery nonconstitutional matter us question certified pursuant ante assume therefore litigation continue district review interrogatories questions respondents declined answer earlier term dissenting denial certiorari acf industries eeoc occasion comment upon widespread abuse discovery become prime cause delay expense civil litigation term years adoption federal rules civil procedure stated rules accorded broad liberal treatment hickman taylor bar trial courts understandably responded affirmatively years passed discovery techniques tactics become highly developed litigation art one infrequently exploited disadvantage justice recognizes situation reached point serious concern undue uncontrolled discovery ante view evident attention given discovery district judge case said process uncontrolled certainly protracted undoubtedly expensive concerned present rules initial inquiry enforcement discovery request one relevance whatever standard may appropriate types cases discovery demand arguably impinges first amendment rights district measure degree relevance required light private needs parties public concerns implicated one hand repeatedly recognized solicitude first amendment rights evidenced opinions reflects concern important public interest free flow news commentary see first national bank boston bellotti saxbe washington post powell dissenting hand also significant public interest according civil litigants discovery matters may genuinely relevant lawsuit although process weighing interests hardly exact science function customarily carried judges areas law performing task trial judges despite heavy burdens carry increasingly recognizing pressing need judicial supervision afc industries eeoc supra today emphasizes focus must relevance injunction fed rule civ proc must heeded district courts neglect power restrict discovery interest justice protect parties undue burden expense ante see fed rule civ proc join opinion understanding heeding admonitions district must ensure values protected first amendment though entitled constitutional privilege case kind weighed carefully striking proper balance decisions miami herald publishing tornillo columbia broadcasting system democratic national committee provide support theory prepublication editorial process enjoys special status first amendment rather decisions rest fundamental principle coerced publication particular views much suppression violates freedom speech see aba report pound conference task force erickson pound conference recommendations blueprint justice system century bell pound conference response department justice powell reforms long overdue record see ante instances might appropriate district delay enforcing discovery demand hope resolution issues summary judgment developments discovery might reduce need material demanded pertinent note respondents sought summary judgment issue time discovery opposed argued discovery postponed issues liability depends resolved justice brennan dissenting part respondents representatives news media defendants libel action brought petitioner lieutenant colonel anthony herbert army ret concededly public figure today rejects respondents claim editorial privilege shields discovery information reveal respondents editorial processes agree privilege insulates factual matters may sought discovery privilege shield respondents mental processes oakes hold however first amendment requires predecisional communication among editors protected editorial privilege privilege must yield plaintiff able demonstrate prima facie satisfaction trial judge publication question constitutes defamatory falsehood appeals stated issue presented case whether extent inquiry editorial process conducted discovery new york times sullivan type libel action impermissibly burdens work reporters broadcasters kaufman grouped discovery inquiries objected respondents five categories lando conclusions research investigations regarding people leads pursued pursued connection minutes segment atlantic monthly article lando conclusions facts imparted interviewees state mind respect veracity persons interviewed basis conclusions lando testified reach conclusion concerning veracity persons information events conversations lando wallace matter included excluded broadcast publication lando intentions manifested decision include exclude certain material allow selective disclosure journalist formulated judgments print print condoning judicial review editor thought processes inquiry face virtually boundless endangers constitutionally protected realm unquestionably puts freeze free interchange ideas within newsroom holding appeals presents novel difficult question law federal rule civ proc provides parties may obtain discovery regarding matter privileged relevant subject matter involved pending action emphasis supplied instant case brought diversity jurisdiction fed rule evid civil actions proceedings respect element claim defense state law supplies rule decision privilege witness person shall determined accordance state law although new york times sullivan placed constitutional limits state libel claims create federal cause action libel rule decision case therefore defined state law contention however applicable state law encompasses editorial privilege thus create apply privilege constitutionally grounded example executive privilege see nixon privilege see mccarthy arndstein existence privilege never urged case must approached premise pretrial discovery normally accorded broad liberal treatment hickman taylor judicial creation evidentiary privileges generally discouraged past however recognized evidentiary privileges order protect interests relationships regarded sufficient social importance justify incidental sacrifice sources facts needed administration justice cleary mccormick evidence ed example hickman taylor supra created qualified privilege attorneys work products part without privilege effect legal profession demoralizing similarly roviaro recognized qualified informer privilege furtherance protection public interest effective law enforcement inquiry pursued therefore whether creation editorial privilege purposes goals constitutional scheme embodied first amendment justify incidental sacrifice evidentiary material inquiry need reach inflexible result justifications editorial privilege may well support qualified privilege appropriate instances must yield requirements administration justice ii justice brandeis reminded us half century ago hose independence valued liberty end means whitney california concurring opinion instrumental aspect first amendment serves foster values democratic true several senses first amendment bars state imposing upon citizens authoritative vision truth prohibits state interfering communicative processes citizens exercise prepare exercise rights amendment shields censure state expose abuses various senses sometimes weave together seen letter addressed first continental congress inhabitants quebec listing rights profligate english ministry striving force arms ravish us last right shall mention regards freedom press importance consists besides advancement truth science morality arts general diffusion liberal sentiments administration government ready communication thoughts subjects consequential promotion union among whereby oppressive officers shamed intimidated honourable modes conducting affairs recognition social values served first amendment decisions referred right public receive suitable access social political esthetic moral ideas experiences red lion broadcasting fcc emphasis supplied circulation information public entitled virtue constitutional guaranties grosjean american press emphasis supplied time hill stated guarantees first amendment benefit press much benefit us broadly defined freedom press assures maintenance political system open society editorial privilege claimed respondents must carefully analyzed determine whether creation significantly social values recognized prior decisions analysis relevant note respondents representatives communications media press broadcast media gertz robert welch played dominant essential role serving informative function branzburg hayes protected first amendment press cases emphasize special constitutionally recognized role institution informing educating public offering criticism providing forum discussion debate first national bank boston bellotti newspapers magazines journals country safe say shed continue shed light public business affairs nation instrumentality publicity since informed public opinion potent restraints upon misgovernment suppression abridgement publicity afforded free press regarded otherwise grave concern grosjean american press supra editorial privilege thus merely personal respondents shield press function agent public large press necessary representative public interest context instrumentality effects public right saxbe washington post powell dissenting iii miami herald publishing tornillo struck undue interference editorial process florida statute granting political candidate right equal space reply criticisms record newspaper even newspaper face additional costs comply compulsory access law forced forgo publication news opinion inclusion reply florida statute fails clear barriers first amendment intrusion function editors newspaper passive receptacle conduit news comment advertising choice material go newspaper decisions made limitations size content paper treatment public issues public officials whether fair unfair constitute exercise editorial control judgment yet demonstrated governmental regulation crucial process exercised consistent first amendment guarantees free press evolved time case however direct government regulation respondents editorial process clear disclosure editorial process press increase likelihood large damages judgments libel actions thereby discourage participants editorial process new york times stated state may constitutionally bring means criminal statute likewise beyond reach civil law libel fear damage awards rule invoked alabama courts may markedly inhibiting fear prosecution criminal statute course new york times set forth substantive standard defining speech unprotected first amendment respondents editorial process shielded merely block judicial determination whether respondents fact engaged speech claimed inhibition flows fear damages liability publishing knowing reckless falsehoods effects precisely new york times cases held consistent first amendment ante inquiry therefore becomes independent first amendment values served editorial process extent exposure process impair first amendment values tornillo defined editorial process functional manner process whereby content format published material selected appeals identified two aspects process first concerns mental processes press regarding choice material oakes aspect encompasses editor subjective thought processes thoughts opinions conclusions kaufman appeals concluded discovery permitted concerning aspect editorial process journalists chilled process thought find conclusion implausible since journalist work without internal thought processes way aspect editorial process chilled journalist ceasing work altogether given exceedingly generous standards new york times seems unlikely moreover new york times removed first amendment protection defamatory falsehood published actual malice knowing reckless disregard truth subsequent decisions made clear actual malice turns journalist subjective awareness probable falsity gertz robert welch anomalous turn substantive liability journalist subjective attitude time shield disclosure direct evidence attitude course journalists margin awareness probable falsity work enough constitute actual malice might discouraged publication chill emanates chiefly substantive standard new york times absence editorial privilege second aspect editorial privilege identified appeals involves free interchange ideas within newsroom kaufman relationship among editors oakes judge oakes concluded deas expressed conversations memoranda handwritten notes like discoverable future likely lead muted less vigorous creative editorial room chief judge kaufman stated reporter editor aware thoughts might justified law often discouraged dissuaded creative verbal testing probing discussion hypotheses alternatives sine qua non responsible journalism editorial privilege protecting aspect editorial process essentially analogous executive privilege shields advisory opinions recommendations deliberations governmental decisions policies formulated carl zeiss stiftung carl zeiss jena dc cases interpreting exemption freedom information act make clear privilege protect merely factual material deliberative policymaking processes epa mink rationale privilege succinctly stated nixon human experience teaches expect public dissemination remarks may well temper candor concern appearances interests detriment decisionmaking process rationale applies respondents proposed editorial privilege possible political consequences disclosure might undermine predecisional communication within executive branch see nlrb sears roebuck possibility future libel judgments might well dampen full candid discussion among editors proposed publications impaired communication clearly affects quality executive decisionmaking muted discussion editorial process affect quality resulting publications editors doubts might remain silent prefer follow investigative leads might restrained otherwise counsel caution might hold tongues short absence editorial privilege accuracy thoroughness profundity consequent publications might well diminished diminution affect first amendment values amendment embraces public interest accurate effective reporting news media saxbe washington post powell dissenting independence confidence power free fearless reasoning communication ideas discover spread political economic truth abridgment freedom speech press impairs opportunities public education essential effective exercise power correcting error processes popular government thornhill alabama petitioner concededly public figure ur citizenry legitimate substantial interest conduct persons freedom press engage uninhibited debate involvement public issues events crucial case public officials curtis publishing butts warren concurring result extent coverage figures becomes fearful inhibited extent accuracy effectiveness thoroughness coverage undermined social values protected first amendment suffer abridgment find compelling justifications existence editorial privilege values issue sufficiently important justify incidental sacrifice evidentiary material today concedes accuracy underlying rationale privilege stating doubt direct relationship consultation discussion one hand sound decisions ante however contents curious observation given exposure liability knowing reckless error even reason resort prepublication precautions frank interchange fact opinion ante prepublication precautions often prove extraordinarily damaging evidence libel actions blithely assume precautions instituted frank interchange exists impaired potential exposure actions fully concede reasoning essentially paradoxical sake accurate information editorial privilege shield disclosure possible inaccuracies press name responsible press privilege make difficult application legal restraints press bound paradox however inheres concept executive privilege enable government effectively implement people people kept ignorance workings government paradox unfortunately intrinsic social condition judgment required evaluate balance competing perspectives judgment also required accommodate tension society pervasive strong interest preventing redressing attacks upon reputation rosenblatt baer first amendment values served editorial privilege view tension fine resolved abstract case executive privilege must specific balancing particular interests asserted given lawsuit general claim executive privilege example stand demonstrated specific need evidence nixon conversely general statement need prevail concrete demonstration necessity executive secrecy reynolds evidentiary privileges similarly dependent upon particular exigencies demonstrated specific lawsuit roviaro example held existence informer privilege depends particular circumstances case taking consideration crime charged possible defenses possible significance informer testimony relevant factors hickman taylor similarly required ad hoc balancing determine existence attorneys privilege procedures whereby balancing achieved far constituting mere formalism ante fact means courts traditionally resolved conflicts competing social individual interests judgment existence privilege protecting editorial process must analogous manner determined reference circumstances particular case area libel balance struck new york times values first amendment society interest preventing redressing attacks upon reputation must preserved best accomplished privilege functions shield editorial process general claims damaged reputation however plaintiff able establish prima facie satisfaction trial judge publication issue constitutes defamatory falsehood claim damaged reputation becomes specific demonstrable editorial privilege must yield contrary suggestion editorial privilege understood create substantial interference ability defamation plaintiff establish ingredients malice required new york times ante requiring plaintiff make prima facie showing defamatory falsehood constitute undue burden since must eventually demonstrate elements part case chief since editorial privilege protects deliberative policymaking processes factual material discovery adequate acquire relevant evidence falsehood plaintiff thus able redress attacks reputation time editorial process protected necessary cases iv applying principles instant case difficult since five categories objectionable discovery inquiries formulated appeals general impossible determine specific questions encompassed within category nevertheless appear four five categories concern respondents mental processes thus covered editorial privilege fourth category conversations lando wallace matter included excluded broadcast publication seem protected proper editorial privilege appeals noted however respondents already made available petitioner discovery contents pretelecast conversations lando wallace kaufman whether constitutes waiver editorial privilege determined first instance district therefore like appeals remand case district require district determine whether respondents waived editorial privilege whether petitioner herbert overcome privilege prima facie showing defamatory falsehood proper scope application privilege freedom speech end human community large measure defined speech freedom speech therefore intrinsic individual dignity particularly democracy like autonomy individual accorded equal incommensurate respect stated cohen california constitutional right free expression powerful medicine society diverse populous designed intended remove governmental restraints arena public discussion putting decision views shall voiced largely hands us hope use freedom ultimately produce capable citizenry perfect polity belief approach comport premise individual dignity choice upon political system rests professor zechariah chafee stated first amendment protects social interest attainment truth country may adopt wisest course action carry wisest way truth sifted falsehood government vigorously constantly free speech persecution expression opinions seems perfectly logical doubt premises power want certain result heart naturally express wishes law sweep away opposition men realized time upset many fighting faiths may come believe even believe foundations conduct ultimate good desired better reached free trade ideas best test truth power thought get accepted competition market truth ground upon wishes safely carried rate theory constitution experiment life experiment experiment part system think eternally vigilant attempts check expression opinions loathe believe fraught death unless imminently threaten immediate interference lawful pressing purposes law immediate check required save country abrams dissenting opinion far point citizens decide issue denied acquaintance information opinion doubt disbelief criticism relevant issue far result must planning general good mutilation thinking process community first amendment constitution directed principle freedom speech springs necessities program law nature reason abstract deduction basic american agreement public issues shall decided universal suffrage meiklejohn political freedom constitutional powers people see virginia state board pharmacy virginia citizens consumer council brennan meiklejohn interpretation first amendment harv rev see blasi checking value first amendment theory bar found research lord erskine defending thomas paine trial seditious libel offered compact eloquent statement position gentlemen insisted great length upon origin governments detailed authorities heard upon subject consider essential support foundation liberty press burke right principles government admit press sense freedom free free sense addresses people upon subjects government speculations amendment kind nature soever illegal criminal since people possible delegated authorities jurisdiction act therefore none think write upon subjects libel arraign government acts jurisdiction correct hand legal argument shake freedom press sense supported doctrines concerning great unalienable right people reform change governments liberty press resolves great issue every country last liberty subjects able wrest power liberties held governments liberty opinion keeps governments due subjection duties speeches lord erskine high ed press serves designed serve powerful antidote abuses power governmental officials constitutionally chosen means keeping officials elected people responsible people selected serve suppression right press praise criticize governmental agents clamor contend change muzzles one agencies framers constitution thoughtfully deliberately selected improve society keep free journals continental congress ford ed useless define free speech talk rights agitator asserts constitutional right speak government asserts constitutional right wage war result deadlock true boundary line first amendment fixed congress courts realize principle speech classified lawful unlawful involves balancing two important social interests public safety search truth chafee supra analogous manner strong protest analyzed exclusionary rule permitting defendant assert social interests reduce personal rights primary justification exclusionary rule deterrence police conduct violates fourth amendment rights decisions established rule personal constitutional right calculated redress injury privacy victim search seizure eparation comes late linkletter walker instead rule judicially created remedy designed safeguard fourth amendment rights generally deterrent effect calandra stone powell compare new york times sullivan barr matteo held utterance federal official absolutely privileged made within outer perimeter duties analogous considerations support privilege government much duty criticize official duty administer emphasis supplied course press monopoly either first amendment ability enlighten first national bank boston bellotti informative function asserted representatives organized press also performed lecturers political pollsters novelists academic researchers dramatists almost author may quite accurately assert contributing flow information public branzburg hayes course imply editorial process persons institutions communications media merit first amendment protection editorial process inhibited ways well example public figures might bring harassment suits media order use discovery uncover aspects editorial process publicly revealed prove embarrassing press different contexts first amendment values might affected sued powerful political figure example journalists might fear reprisals information disclosed discovery cf reporters committee freedom press american telephone telegraph app chilling effect might particularly impact press ability perform checking function see supra instant case however petitioner public official respondents claiming suffering effects chill elements petitioner complaint appear set forth claim invasion privacy see time hill case come framed libel action however shall consider plaintiff case public official intent upon using discovery intimidate press first amendment values might well implicated see supra brother powell writes separately emphasize district courts must carefully weigh values protected first amendment determining relevance discovery requests ante time however concludes evidentiary privilege protects editorial process whatever protection exercise editorial judgment enjoys depends entirely protection first amendment accords product judgment namely published speech ante editorial privilege unnecessary safeguard published speech ibid assume brother powell means exposure predecisional editorial discussions meaningfully affect nature subsequent publications true difficulty understanding exactly first amendment values brother powell expects district courts place balance may suggesting first amendment values impaired merely requiring media defendants respond discovery requests like litigant even district courts apply stricter standards relevance cases involving media defendants burden pretrial discovery marginally decreased seem justified assume result meaningfully affect nature subsequent publications see greenbelt cooperative publishing assn bresler reach case media defendant specific concrete interests stake see nn supra reach case litigant weighty interests civil plaintiff attempts overcome claim editorial privilege see associated press nlrb associated press plaintiff make prima facie showing part motion order compelling discovery fed rule civ proc appropriate time justice stewart dissenting seems appeals addressed question presented case us understand constitutional rule new york times sullivan inquiry broad editorial process simply relevant libel suit brought public figure publisher inquiry relevant permissible fed rule civ proc although joined opinion new york times come greatly regret use opinion phrase actual malice fact matter malice used new york times opinion simply mean malice word commonly understood common understanding malice means ill hostility relevant question determining whether person action motivated actual malice ask part constitutional standard enunciated new york times case however actual malice nothing hostility ill question totally irrelevant constitutional restrictions imposed new york times progeny plaintiff public official public figure recover publisher defamatory statement upon convincingly clear proof following elements statement published defendant statement defamed plaintiff defamation untrue defendant knew defamatory statement untrue published reckless disregard truth falsity rosenbloom metromedia plurality opinion ocala damron time pape monitor patriot roy greenbelt coop pub assn bresler amant thompson beckley newspapers hanks curtis publishing butts rosenblatt baer new york times sullivan supra cf time firestone gertz robert welch letter carriers austin time hill linn plant guard workers gravamen lawsuit thus concerns fact published published nothing case liability ultimately depends upon publisher state knowledge falsity published upon motivation publishing words upon actual malice words ordinarily understood first time judges lawyers led astray phrase actual malice new york times opinion greenbelt coop pub assn bresler supra another defamation suit brought public figure publisher trial judge instructed jury plaintiff recover defendant publication made malice malice means spite hostility deliberate intention harm reversing judgment plaintiff said jury instruction constituted error constitutional magnitude cf letter carriers austin supra rosenblatt baer supra present case course neither appeals overtly committed egregious error manifested bresler courts carefully enunciated correct new york times test see opinion oakes ante followed false trail explainable unstated misapprehension meaning new york times actual malice arrive issue editorial process privilege misapprehension reflected numerous phrases prevailing appeals opinions journalist exercise editorial control judgment journalist formulated judgments editorial selection process press heart editorial process reasons inclusion exclusion certain material see passim similar misapprehension reflected opinion phrases improper motive intent purpose publication made ill lengthy discussion spite hostility required constitute malice common law see ante correct bearings taken however firmly recognized publisher motivation case irrelevant clearly occasion inquiry editorial process conceptualized case shall burden opinion list discovery questions issue suffice say seem come within even liberal construction fed rule civ proc time case went appeals deposition respondent lando alone lasted intermittently year filled pages transcript additional exhibits plaintiff chief judge kaufman words already discovered lando knew saw said wrote investigation seems already sufficient system federal procedure whose prime goal speedy inexpensive determination every action expensive pretrial discovery burdensome enough even within arguable bounds rule totally irrelevant pretrial discovery intolerable like appeals remand case district directions measure proposed questions strictly constitutional criteria new york times progeny determined whether invasion editorial process truly threatened see webster new international dictionary ed following random samples ever come conclusion unnecessary talk capt laurence potter prior presentation program february come conclusion want filmed interview sgt carmon program prepared final draft program aired form conclusion whether one matters presented program herbert view treatment vietnamese recollection discussing anybody cbs whether sequence excluded program broadcast prior publication atlantic monthly article lando discuss article preparation article representative cbs rule provides relevant part parties may obtain discovery regarding matter privileged relevant subject matter involved pending action ground objection information sought inadmissible trial information sought appears reasonably calculated lead discovery admissible evidence fed rule civ proc justice marshall dissenting although professing maintain accommodation interests struck new york times sullivan today unresponsive constitutional considerations underlying opinion believe constraints pretrial discovery essential ensure uninhibited robust debate public issues sullivan contemplated respectfully dissent issue case competing interests familiar dimension undeniably interest affording individuals measure protection unwarranted defamatory attacks libel actions serve end assuring forum reputations publicly vindicated dignitary injuries compensated also creating incentives press exercise considered judgment publishing material compromises personal integrity see gertz robert welch rosenblatt baer objectives must balanced society interest promoting unfettered debate matters public importance recognized sullivan error inevitable debate forced guarantee truth assertions potential critics might suppress statements believed accurate doubt whether truthfulness proved fear expense incompatible tenets first amendment democratic institutions founded representative system government informed electorate precondition responsive decisionmaking see associated press grosjean american press meiklejohn free speech relation secure public exposure widest possible range information insights margin error must tolerated thus absent knowing falsity reckless disregard truth press shielded liability defamatory statements regarding public figures curtis publishing butts new york times sullivan supra yet standard liability accomplish ends conceived insulating press ultimate liability unlikely avert long plaintiff deep pocket facially sufficient complaint afforded unconstrained discovery editorial process substantive balance interests struck sullivan remain viable must reassessed light procedural realities libel actions conducted ii potential abuse liberal discovery procedures particular concern defamation context members bench bar increasingly noted rules designed facilitate expeditious resolution civil disputes often proved tools harassment delay capitalizing broad mandate hickman taylor reaffirmed schlagenhauf holder discovery rules accorded broad liberal scope litigants occasion transformed fed rule civ proc devices tactics attrition possibility abuse enhanced libel litigation many victims defamation animated something rational calculus chances recovery given circumstances libel actions arise plaintiffs pretrial maneuvers may fashioned eye deterrence retaliation unearthing germane material risk terrorem discovery particularly pronounced defamation context societal consequences attending abuse special magnitude rather submit intrusiveness expense protracted discovery even editors confident ability prevail trial motion summary judgment may find prudent steer far wid unlawful zone thereby keeping protected discussion public cognizance rosenbloom metromedia plurality opinion citation omitted faced prospect escalating attorney fees diversion time journalistic endeavors exposure potentially sensitive information editors may well make publication judgments reflect less risk liability expense vindication although acknowledging problem discovery abuse suggests remedy lies elsewhere major changes present rules civil procedure ante somewhat inconsistently asserts district judges already fact law ample powers prevent abuse ibid agree first amendment rights critically implicated incumbent safeguard effective exercise leaving directives hickman schlagenhauf unqualified respect libel litigation abdicated responsibility judgment constitutional concerns impelled us sullivan confine circumstances defamation liability attach also mandate constraints roving discovery hold broad discovery principles enunciated hickman schlagenhauf inapposite defamation cases specifically require district courts superintend pretrial disclosure litigation protect press unnecessarily protracted tangential inquiry end discovery requests measured strict standard relevance threat disclosure may intrude special force certain aspects editorial process believe additional protection form evidentiary privilege warranted iii appeals extended privilege subsuming essentially two kinds discovery requests first included questions concerning state mind individual journalist principally conclusions bases conclusions accuracy information compiled investigation second encompassed communications journalists matter included broadcast reasoning discovery forms material intrusive intrusion inhibiting inhibition inconsistent editorial autonomy recognized miami herald publishing tornillo columbia broadcasting system democratic national committee appeals concluded privilege disclosure essential respect inquiry syllogism withstand analysis although discovery may well intrusive unclear journalists faced possibility questions chilled process thought regardless whether strictures placed discovery reporters editors must continue think form opinions conclusions veracity sources accuracy information best argued failure insulate press form disclosure inhibit editing process final product specter questions concerning opinion belief induce journalists refrain publishing material thought accurate brother brennan notes ante inhibition emanate principally sullivan substantive standard incremental effect discovery long sullivan makes state mind dispositive inquiry manner editorial decisions made inevitable simply implausible suppose asking reporter certain material included given publication likely stifle incisive journalism compelling disclosure objective evidence regarding decision mean suggest district tornillo columbia broadcasting nothing case sdny contrary values editorial autonomy given recognition decisions inform district courts monitor discovery phase defamation cases assuming trial judge discharged obligation prevent unduly protracted inessential disclosure see supra unpersuaded impact inquiry threaten journalistic endeavor beyond threshold contemplated sullivan external evidence editorial decisionmaking however stands different footing concern simply ultimate product may inhibited process chilled journalists stop forming tentative hypotheses cease articulating openly prepublication dialogue freely discoverable editors reporters may well prove reluctant air reservations explore means presenting information comment threat unchecked discovery may well stifle collegial discussion essential sound editorial dynamics recognized nixon hose expect public dissemination remarks may well temper candor concern appearances detriment decisionmaking process omitted cf nlrb sears roebuck society interest enhancing accuracy coverage public events procedures tending muffle expression uncertainty preserve climate free interchange among journalists confidentiality conversation must guaranteed enough believe accord discovery privilege yield plaintiff make prima facie showing falsity see ante opinion brennan unless journalist knows certitude misgivings enjoy protection may remain unexpressed see oakes concurring full disclosure available whenever plaintiff establish press erred particular editorial communication demonstrably less inhibited approach hypothesis precisely instances risk error significant frank discussion valuable accordingly foreclose discovery defamation cases substance editorial conversation shielding limited category evidence disclosure unlikely preclude recovery plaintiffs valid defamation claims variety means establish deliberate reckless disregard truth absence verification inherent implausibility obvious reasons doubt veracity accuracy information concessions inconsistent statements defendant see amant thompson extent limited privilege might deny recovery marginal cases view acceptable price pay preserving climate conducive considered editorial judgment therefore direct appeals remand case district determination first whether questions concerning lando state mind satisfy criteria set forth part ii opinion second whether respondents waived privilege defined part iii prepublication discussions see bell pound conference response department justice erikson pound conference recommendations blueprint justice system century lasker crunch view bench litigation section report special committee study discovery abuse stanley president page burger agenda need systematic anticipation moore federal practice ed see anderson libel press texas rev facts instant case illustrate expense considerable deposition lando alone consumed days close pages transcript see although separate opinions brothers powell stewart display greater solicitude first amendment values opinion believe elide critical issue presented case broad liberal standard hickman surely disclosure known journalist published ante opinion stewart often germane whether individual proceeded deliberate reckless disregard truth admonishing district courts monitor discovery interest justice ante opinion powell prevent undue burden expense adds little guidance already afforded rule adequately mitigate burdens press long hickman directive remains force moreover neither opinion directly responsive effect discovery editorial discussion see infra respondents case produced considerable amount evidence regarding preparation broadcast lando answered innumerable questions knew seen interviewed intimate details discussions interviewees form frequency communications sources exhibits produced included transcripts interviews volumes reporters notes videotapes interviews series drafts minutes telecast herbert also discovered contents conversations lando wallace well reactions documents considered omitted thus seriously doubt questions substantially increase likelihood large damages judgments libel actions ante opinion brennan neither disputed questions might occasion generate answers useful plaintiffs defamation suits see davis schuchat app goldwater ginzburg cert denied varnish best medium publishing cert denied contrary intimation ante first instance protection apart sullivan malice standard extended safeguard constitutional interests implicated libel suits example lower courts displayed sensitivity first amendment values assessing motions compel disclosure confidential sources see cervantes time cert denied motions defendants summary judgment see washington post keogh app cert denied different considerations course obtain privilege editorial communications sought conjunction criminal proceedings cf new york times jascalevich marshall chambers nixon branzburg hayes stewart dissenting