Herbert v. Lando

Anthony Herbert (plaintiff) was a retired Army officer who became a public figure when he accused Army officers of committing and covering up war crimes. Barry Lando (defendant) produced a broadcast about Herbert for Columbia Broadcasting System, Inc. (defendant) that was narrated by Mike Wallace (defendant). Lando also wrote an article about Herbert in the Atlantic Monthly (defendant). Herbert sued for defamation in federal court, arguing that the broadcast and article falsely and maliciously depicted him as a liar who fabricated his accusations against the Army. Because actual malice was a required element in defamation suits brought by public figures, Herbert deposed Lando seeking evidence to prove actual malice. Herbert asked various questions to Lando during the deposition that Lando refused to answer, claiming the First Amendment protected against questions that inquired into the state of mind of one who edited, produced, or published and against questions delving into the editorial process. Herbert filed a motion to compel. The district court ruled that Lando’s state of mind was an inquiry fundamental to establishing actual malice and ordered Lando to provide responses to the questions. Lando appealed, and the court of appeals reversed. Herbert petitioned for a writ of certiorari. The Supreme Court granted the petition.