Anthony Herbert v. Barry Lando, Mike Wallace, Columbia Broadcasting System, Inc., Atlantic Monthly Company, Barry Lando, Mike Wallace and Cbs Inc.

IRVING R. KAUFMAN, Chief Judge:

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.

I

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 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 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

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 Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) had, a year earlier, presaged the unqualified statement of Tornillo.¹³ In holding that broadcasters were not required by the First Amendment to accept paid political advertisements, the Court observed: “ . For better or worse, editing is what editors are for; and editing is selection and choice of material.” Specifically, in addressing the issue of whether broadcaster’s decisions constituted state action, Chief Justice Burger noted,

. it would be anomalous for us to hold, in the name of promoting the constitutional guarantees of free expression, that the day-to-day editorial decisions of broadcast licensees are subject to the kind of restraints urged by respondents. To do so in the name of the First Amendment would be a contradiction. Id., 412 U.S. at 120-1, 93 S.Ct. at 2095.

It is clear from what we have said that newsgathering and dissemination can be subverted by indirect, as well as direct, restraints. It is equally manifest that the vitality of the editorial process can be sapped too if we are not vigilant. The unambiguous wisdom of Tornillo and CBS is that we must encourage, and protect against encroachment, full and candid discussion within the newsroom itself. In the light of these constitutional imperatives, the issue presented by this case is whether, and to what extent, inquiry into the editorial process, conducted during discovery in a New York Times v. Sullivan type libel action, impermissibly burdens the work of reporters and broadcasters.¹⁴

II

New York Times v. Sullivan, applying constitutional principles to the common law of libel, empowered a public figure to vindicate his reputation in an action if he could establish that the statements at issue were knowingly false, or made in reckless disregard of the truth. New York Times v. Sullivan, 376 U.S. at 279-80, 84 S.Ct. 710 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 at 162-5, 170-2, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Gertz v. Robert Welch, 418 U.S. 323, 335 n.6, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). Later decisions instructed that the Sullivan standard required a subjective inquiry into the defendant’s state of mind. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).¹⁵

While Sullivan left a narrow area for public figures to maintain a libel action, limiting decisions have further refined Sullivan when viewed in the context of the First Amendment.¹⁶ The opinions applying these additional constraints do so in recognition of the constitutional safeguards cloaking the press, and the need to protect editors and broadcasters. They speak with the same voice as do CBS and Tornillo.

For example, in Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977), we held that statements of opinion could not afford a basis for recovery in a libel case. The reason for this circumscription of libel was clear: the expression of personal opinions and views was fundamental to the need for vigorous debate. Indeed, it is part and parcel of the paramount function of the press — the dissemination of information. And, just last term, in Edwards v. New York Times Co., 556 F.2d 113 (2d Cir. 1977), we held that a newspaper could not libel an individual when the reporter engaged in the neutral reportage of newsworthy material. Our concern there, too, was that the press be unhampered in bringing news to the public.¹⁷

These reciprocal developments in the law of libel and in freedom of the press narrowly define our task: we must permit only those procedures in libel actions which least conflict with the principle that debate on public issues should be robust and uninhibited. If we were to allow selective disclosure of how a journalist formulated his judgments on what to print or not to print, we would be condoning judicial review of the editor’s thought processes. Such an inquiry, which on its face would be virtually boundless, endangers a constitutionally protected realm, and unquestionably puts a freeze on the free interchange of ideas within the newsroom. A reporter or editor, aware that his thoughts might have to be justified in a court of law, would often be discouraged and dissuaded from the creative verbal testing, probing, and discussion of hypotheses and alternatives which are the sine qua non of responsible journalism. Indeed, the ratio decidendi for Sullivan’s restraints on libel suits is the concern that the exercise of editorial judgment would be chilled.

III

With these principles set forth, we proceed to traverse the facts before us in some detail. In March 1971, Colonel Anthony Herbert achieved national importance when he formally charged his superior officers, Brigadier General John W. Barnes and Colonel J. Ross Franklin, with covering up war crimes in Vietnam. Herbert claimed, in documents filed with the U.S. Army Criminal Investigation Division (CID), that he had witnessed numerous atrocities while commanding a battalion of the 173rd Airborne Brigade. The most horrifying involved the murder of four prisoners of war by South Vietnamese police in the presence of an American advisor, who callously failed to intervene. Since those killings allegedly occurred on February 14, 1969, Herbert dubbed them the “St. Valentine’s Day Massacre.”

Herbert claimed to have reported all atrocities immediately to Colonel Franklin, deputy commander of the 173rd Airborne, at Brigade Headquarters in Vietnam, and to have brought several to the attention of the Brigade’s commander, General Barnes. But, Herbert alleged, neither was interested in investigating the incidents. When Herbert persisted in pressing his charges, he said that he was abruptly relieved of his command, a determination that was subsequently affirmed by a military appeals tribunal. His removal as battalion commander was attributed to a poor efficiency report authored by Colonel Franklin, which accused Herbert of having “no ambition, integrity, loyalty or will for self-improvement.”

Herbert’s sudden fall from grace surprised many observers. His long career in the military had been exemplary, under his strong leadership, the second battalion had exhibited extraordinary prowess in battle. His military acumen had earned Herbert one Silver and three Bronze stars, and he had recently been recommended to receive the Distinguished Service Cross.

Herbert’s story fascinated an American public that was increasingly becoming disenchanted with the Vietnam War. In July 1971, he was interviewed by Life Magazine; that September, James Wooten of the New York Times wrote an article favorable to Herbert titled “How a Supersoldier Was Fired From His Command.” Interviews with the television personality Dick Cavett followed which, according to Cavett, elicited a level of viewer response unmatched by any other single program. In October 1971, Congress became embroiled in the “Herbert affair” when Rep. F. Edward Heber, Chairman of the Armed Services Committee, convinced the Army to remove Herbert’s poor efficiency report from his military record.

The Army also thoroughly investigated Herbert's charges of war crimes and, in October 1971, exonerated General Barnes. Armed with this new information, reporters began for the first time to critically examine the veracity of Herbert’s story. During this period of intense public interest, Herbert announced his retirement from the service. He cited, as the reason for his decision, incessant harassment by the military because of his disclosures.

■Barry Lando, an associated producer of the CBS Weekend News, was one of the many individuals interested in the Herbert story. He interviewed Herbert in June 1971 and later produced a laudatory report which was televised on July 4,1971 over the CBS network. A year later, Lando had become a producer for CBS’s documentary news program, “60 Minutes.” He decided to investigate both Herbert’s military career and his charges of cover-up for a comprehensive broadcast on the ensuing controversy. Lando interviewed not only Herbert, Franklin and Barnes, but questioned others, both in and out of the military, who could corroborate Herbert’s claims that he had reported war crimes, and that the military had engaged in a systematic whitewash. Indeed, some of the leads which Lando pursued may have been supplied by Herbert himself during their repeated and extensive conversations. Lando focused on particular allegations. He spent some time in attempting to assay whether Herbert had, in fact, reported the St. Valentine’s Day Massacre to Franklin in Vietnam on February 14, 1969. Since Franklin protested that he was returning from Hawaii on that date, Lando concentrated on this point. Lando obtained Franklin’s hotel bill and a cancelled check in payment of that bill, and interviewed others who could verify Franklin’s activities on the crucial days. Lando also questioned Captain Bill Hill, upon whom Herbert relied to substantiate his story. When Hill recalled that Herbert reported war crimes to someone, he could not say with total certainty that Franklin was the individual.

Other allegations were also considered. Lando investigated Herbert’s activities during the eighteen-month period between his relief from command and the filing of formal war crimes charges to determine whether Herbert had apprised other officers in Vietnam of his accusations. In particular, Lando interviewed the highest ranking military lawyer and judge in Vietnam at the time, Colonel John Douglass, who emphatically controverted Herbert’s assertion that war crimes had been brought to his attention. Lando also elicited from Kenneth Rosenbloom, the military attorney and investigator who conducted the Army’s inquiry into Herbert’s allegations, the view that the military’s handling of the charges was beyond reproach.

Lando also questioned soldiers who had served under Herbert to determine his qualities as commander. One of these, Sergeant Bruce Potter, reported occasions upon which Herbert had countenanced the commission of war crimes. Potter recounted, for example, an incident in which Herbert had thrown a sand bag out of a helicopter to frighten a war prisoner on the ground into thinking it was a fellow prisoner who had been ejected.

During this period, Lando received an uncorrected proof of “Soldier,” a book written by Herbert in collaboration with James Wooten of the New York Times. Although several of those interviewed by Lando attested to the verity of many of Herbert’s reports, others did not. Thus, Herbert wrote that Captain James Grimshaw had once attempted to drive certain Viet Cong soldiers from a cave without injuring female civilians and children by valiantly entering their hiding place alone. Grimshaw, however, denied the incident had occurred.

Lando’s research culminated in the telecast of “The Selling of Colonel Herbert” on February 4,1973. That evening, the American people were presented with a fallen hero. The presentation on the air initially juxtaposed Herbert’s claims and the denials of Franklin and Barnes that Herbert ever reported war crimes, and then considered in detail five aspects of the Herbert affair:

(1) Lando’s doubts that Franklin was even present in Vietnam to hear of the St. Valentine’s Day Massacre;

(2) Colonel Douglass’s adamant denial that war crimes had been reported to him;

(3) Kenneth Rosenbloom’s defense of the Army’s investigation;

(4) Bruce Potter’s recount of the helicopter incident; and

(5) James Grimshaw’s flat contradiction of his alleged heroism in the cave.

While the existence of information corroborative of Herbert’s claims was alluded to on the broadcast, the program as a whole clearly cast doubt upon all of Herbert’s allegations. The telecast concluded with a plea that the Army make its records public to the end of conclusively settling the imbroglio.

Lando subsequently recounted his research in an Atlantic Monthly article titled “The Herbert Affair.” The article, like the broadcast, cast serious doubts upon Herbert’s veracity and concluded that the American press had been deluded by Herbert’s story.

Herbert responded to the CBS broadcast and Lando’s article by instituting a defamation action against CBS, Barry Lando, Mike Wallace, the correspondent for the program, and Atlantic magazine, alleging $44,-725,000 in damages for injury to his reputation and impairment of his book “Soldier” as a literary property. Herbert contended that Lando deliberately distorted the record through selective investigation, “skillful” editing, and one-sided interviewing, and that he was deliberately depicted as evasive in the interview. In addition, Herbert claimed Atlantic republished Lando’s statements knowing that they were false. Lando, Wallace and CBS countered that the publications represented a fair and accurate report of public proceedings, broadcast in good faith without malice¡ and, in addition, that the program and article were protected by the First and Fourteenth Amendments.

Once the issue was joined, Herbert commenced discovery of Lando, Wallace and CBS. The deposition of Lando required twenty-six sessions and lasted for over a year. The sheer volume of the transcript— 2903 pages and 240 exhibits — is staggering. Lando answered innumerable questions about what he knew, or had seen; whom he interviewed; intimate details of his discussions with interviewees; and the form and frequency of his communications with sources.¹⁸ The exhibits produced included transcripts of his interviews; volumes of reporters notes; videotapes of interviews; and a series of drafts of the “60 Minutes” telecast. Herbert also discovered the contents of pre-telecast conversations between Lando and Wallace as well as reactions to documents considered by both. In fact, our close examination of the twenty-six volumes of Lando’s testimony reveals a degree of helpfulness and cooperation between the parties and counsel that is to be commended in a day when procedural skirmishing is the norm. Lando, however, balked when asked a small number of questions relating to his beliefs, opinions, intent and conclusions in preparing the program.¹⁹ He claimed that any response would be inconsistent with the protections afforded the editorial process by the First Amendment. These assertedly objectionable inquiries can be grouped into five categories:

1. Lando’s conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the ‘60 Minutes’ segment and the Atlantic Monthly article;

2. Lando’s conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;

3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;

4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and

5. Lando’s intentions as manifested by his decision to include or exclude certain material.

Faced with Lando’s claim that the constitution immunized his mental process from discovery, Herbert sought an order, pursuant to Rule 37(a)(2) of the Federal Rules of Civil Procedure, compelling Lando to respond to his inquiries.²⁰ Judge Haight, after observing that the case was one of first impression, concluded that Herbert’s discovery of the journalist’s state of mind should be broad and unrestricted. He reasoned that a public figure bore a heavy burden of proving that an alleged libeler acted with actual malice or in reckless disregard of the truth, and that the necessarily subjective nature of the libel standard fully justified inquiry into Lando’s thought processes.

Judge Haight dismissed Lando’s contention that the machinations of the editorial mind were constitutionally sacrosanct and immune from the probing of a libel plaintiff²¹ The critical importance of the issue, whether the First Amendment erects any barriers to discovery of the editorial process, compelled this court to permit the instant interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the district court’s order that Lando answer Herbert’s inquiries.

IV

We have undertaken this extensive review of the facts to underscore that the lifeblood of the editorial process is human judgment. The journalist must constantly probe and investigate; he must formulate his views and, at every step, question his conclusions, tentative or otherwise. This is the process in which Barry Lando was engaged and his efforts suggest the nature and scope of the reporter’s task in shaping and refining a mass of facts into a finished product.²²

Herbert seeks to scrutinize this very process. Of course, he has already discovered what Lando knew, saw, said and wrote during his investigation. As we noted before, the deposition of Lando produced a massive transcript documenting in minute detail the course of Lando’s research. The jury is free to infer from Lando’s use and application of the extensive materials discovered and, equally important, from the failure to heed certain contradictory information. If it chooses to do so (and as we have indicated in footnote 22, we express no views on the merits of the controversy), it can find that Lando acted with actual malice or in reckless disregard of the truth.

Now, Herbert wishes to probe further and inquire into Lando’s thoughts, opinions and conclusions. The answers he seeks strike to the heart of the vital human component of the editorial process. Faced with the possibility of such an inquisition, reporters and journalists would be reluctant to express their doubts. Indeed, they would be chilled in the very process of thought. As we expressed above, the tendency would be to follow the safe course of avoiding contention and controversy — the antithesis of the values fostered by the First Amendment.

We cannot permit inquiry into Lando’s thoughts, opinions and conclusions to consume the very values which the Sullivan landmark decision sought to safeguard.²³ It cannot be gainsaid that were a legislative body to require a journalist to justify his decisions in this matter, such an intrusion would not be condoned. That this invasion on First Amendment rights is about to be effected by an allegedly libelled plaintiff does not reduce the grave implications for the vitality of the editorial process which the Supreme Court and this court have recognized must be guarded zealously. It makes little sense to afford protection with one hand and take it away with the other. Accordingly, we remand to the district court for an evaluation of the interrogatories in light of the principles articulated in this opinion.

1 . VI Writings of James Madison, 1790-1802, p. 335 (Hunt ed. 1906).

2 . The notion that the free exchange of information is vital to a democracy is a longstanding principle of the First Amendment. See Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). See also A. Meiklejohn, Free Speech and Its Relation to Self-Government, 88-9 (1948).

3 . The support given by the press to the passage of “right to know" and “open meeting” statutes is based on its vital need to acquire information. See Note, Freedom of Information: The Statute and the Regulations, 56 Georgetown L.J. 56 (1967); Note, Open Meeting Statutes: The Press Fights for the Right to Know, 75 Harv.L.Rev. 1199 (1962).

4 . See generally Note, The Rights of the Public and the Press to Gather Information, 87 Harv. L.Rev. 1505 (1974).

5 . The First Amendment cases which protect picketing exhibit like concern with the need to disseminate information. In a landmark case, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) Justice Murphy wrote,

In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution . . . Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion on matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Id. at 98-99, 60 S.Ct. at 744-755.

See also Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 1242 (1938) (an ordinance prohibiting the distribution of “circulars, handbills, advertising, or literature of any kind” without the prior permission of city official invalid on its face); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (prohibition of door-to-door canvassing for purposes of disseminating religious literature invalid as a prior restraint).

6 . See also Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). See, for a historical overview of the prior restraint doctrine, Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648 (1955).

7 . Of course, the court can exercise its authority to maintain an atmosphere of impartiality and calm in the courtroom. See Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). The exercise of such control however, in no way implies a right to abridge expression itself.

8 . The Supreme Court unanimously held the statute invalid. Justice Sutherland, writing for the Court, analogized the statute to pre-Revolutionary “taxes on knowledge” designed to “prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect to their governmental affairs.” 297 U.S. 247, 56 S.Ct. 448.

9 . For a collection of materials on the problem of taxation of the press, see T. Emerson, Political and Civil Rights in the United States, 602-4 (3d ed. 1967). Many state court decisions have followed Grosjean. See, e. g., Mayor of Baltimore v. A. S. Abell Co., 218 Md. 273, 287, 145 A.2d 111, 118 (1958).

10 . While we discuss only the articulation of this right to gather information as it pertains to the press, the Supreme Court has acknowledged a similar right with respect to free speech. In Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), the Court invalidated a municipal ordinance forbidding door-to-door distribution of handbills as violative of the First Amendment rights of both the recipients and the distributors.

11 . Although the Court in Branzburg expressed the need to protect journalists’ sources, it did not suggest that the press enjoyed a special right of access to information not generally available. See also Saxbe v. The Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974) (press does not have a constitutional right to interview prison inmates). However, Justice Stewart, who wrote the opinion for the Court in Saxbe, subsequently noted that the freedom of the press is a structural provision of the Constitution, and therefore unique. Stewart, “Or of the Press," 26 Hastings L.J. 631 (1975).

12 . Of course, our holding in Baker did not depend upon either the New York or Illinois statutes regarding newsmens’ privilege. There, as in Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958), the First Amendment compelled our conclusion. Under similar circumstances, the disclosure of confidential sources 'has been privileged. In Cervantes v. Time, Inc., 464 F.2d 986, 992-93 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973), the court held that a publisher was not required to disclose his sources since the plaintiff’s libel action was not likely to succeed. See also Apicella v. Mac Neil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.) (court refused to order the editors of a medical newsletter to disclose their confidential sources, although those sources possessed information relevant to plaintiffs’ allegations of adverse drug effects). But see Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631 (1974), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974) (court ordered disclosure of a confidential source where the allegedly libelous statement was based entirely on confidential sources and the plaintiff had no way of proving falsity or reckless disregard without knowledge of the identity of those sources). See generally Comment, Newsmen's Privilege Against Compulsory Disclosure of Sources in Civil Suits — Toward an Absolute Privilege?, 45 U.Colo.L.Rev. 173 (1973).

13 . The Court’s active consideration of the broadcast medium began, of course, with Red Lion Broadcasting v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). There, the Supreme Court rejected the broadcaster’s challenge, on conventional First Amendment grounds, to the fairness doctrine and to the FCC’s “right of reply” rules. The rationale for the Court’s holding is strikingly similar to that used in upholding the application of the antitrust laws to the press. Justice White observed,

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. . It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which the truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. ... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. Id. at 388-90, 89 S.Ct. at 1806-07.

14 . Appellants, in their brief, succinctly frame the issue before us:

What effect should be given to the First Amendment protection of the press with respect to its exercise of editorial judgment in pretrial discovery in a libel case governed by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)?

On this appeal, appellants do not ask that we review the specific discovery rulings of the District Court. They seek only that we articulate a general principle delineating the First Amendment considerations applicable to discovery of editorial judgment under Sullivan. Brief for Appellants at 7-8.

15 . Appellees concede that the instant libel action is governed by Sullivan. Brief for appellee at 16. Hence, the question which the Supreme Court has recently found so troublesome, the characterization of ‘public figure’ in libel suits, is not before us. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (Sullivan standard extended to private individual involved in event of public or general interest); but see Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (Chicago attorney engaged in prominent trial not deemed to be a public figure).

16 . Sullivan has been further refined, substantively and procedurally. For example, where it is unlikely that the plaintiff will succeed on the merits of his claim, courts have been more willing, within the area of libel than elsewhere, to grant summary judgment. See, e. g., Guitar v. Westinghouse Electric Corp., 396 F.Supp. 1042, 1053 fn.16 (S.D.N.Y.), and cases cited therein.

17 . In Edwards, we stated,

We believe that the interest of a public figure in the purity of his reputation cannot be allowed to obstruct that vital pulse of ideas and intelligence on which an informed and self-governing people depend. It is unfortunate that the exercise of liberties so precious as freedom of speech and of the press may sometimes do harm that the state is powerless to recompense; but this is the price that must be paid for the blessings of a democratic way of life. Id. at 122.

18 . Much of Lando’s testimony concerned the volumes of his notes which were produced. Lando painstakingly deciphered and explained the short, and often cryptic, remarks taken down during interviews. Lando’s explanations frequently led to lengthy discussions regarding the subject matter of his discussions with third persons.

19 . Here, too, counsel exhibited a remarkable degree of cooperation. In advance of Herbert’s Rule 37 motion to compel discovery, Judge Haight suggested that the parties might voluntarily reach agreement concerning many of the objectionable questions. A substantial number of questions were withdrawn as a result, as were objections to a large number of others.

20 . Rule 37(a) provides that

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery .

A motion under Rule 37(a) implements the provisions of Rule 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissable evidence.

Further, Rule 26(c) protects the party against whom discovery is sought by empowering the district court to issue a protective order to:

protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense •.

In compelling discovery, Judge Haight applied these rules but did not consider whether inquiry into editorial process would be oppressive or unduly burdensome.

21 . Judge Haight concluded that Sullivan had already struck the balance between First Amendment rights and the protection of reputation. He argued that, since Sullivan allowed for a libel recovery upon a showing of actual malice or reckless disregard, all discovery leading to admissible evidence was proper. He dismissed out of hand appellants’ contention that Tornillo and CBS mandated additional First Amendment protections:

I find no substance in the argument defendants based upon the “editorial judgment” concept. . . These cases (CBS, Tornillo, Branzburg) have nothing to do with the proper boundaries of pretrial discovery in a defamation suit alleging malicious prosecution.

22 . In so characterizing Lando’s research, we do not mean to express any view as to the merits of the controversy.

23 . Selective inquiry into the reporter’s thoughts can be far worse than the discovery of all aspects of his mental process. In plumbing only particular facets of the reporter’s mind, the libel plaintiff is more likely to distort the nature of the editorial process.