Transcript

CHIEF JUSTICE WARREN BURGER: We will hear arguments next in 1105, Herbert against Lando.

Mr. Lubell, I think you can safely proceed now and be heard.

MR. JONATHAN W. LUBELL: Mr. Chief Justice, and may it please the Court:

This is an appeal from a decision of the Court of Appeals for the Second Circuit, reversing a discovery order of the district court and establishing an absolute privilege of nondisclosure of the "editorial process."

This is a Sullivan defamation case. It arises from a CBS "60 Minutes" program produced by Barry Lando and Mike Wallace.

In that program the plaintiff, Colonel Herbert, was portrayed as a liar, as one capable of committing acts of brutality in Vietnam, as an opportunist who had used the war crimes charge to cover up his own relief from command, and as a perpetrator of a hoax on the American public.

Plaintiff, after the broadcast, brought the libel action which is now before this court. During the course of pre-trial, plaintiff sought to discover what the defendants had done and learned in the course of their investigation preparing for the program, and what the defendants' "state of mind" was on the matters which they had investigated and learned about during the investigation.

Questions were posed within that context to Mr. Lando and Mr. Wallace as to what their state of mind was as to matters actually presented on the program as well as matters not presented on the program and contradictory to matters presented on the programs.

JUSTICE WILLIAM H. REHNQUIST: Counsel, you say their state of mind as to matters?

MR. LUBELL: Yes.

JUSTICE REHNQUIST: Could you be a little more precise? What issue were you directing -- would those answers have been relevant?

MR. LUBELL: Yes. The issue, the legal issue we were directed to was the issue of the "subjective state of mind" of the defendants -- whether in fact they entertained serious doubts as to the truth of matters presented on the program.

Specifically, it arose in various contexts. For example, during the deposition of Mr. Lando we ascertained that he had interviewed -- one example -- a group of five different soldiers who had served with Colonel Herbert in Vietnam.

Four of those soldiers told him certain things about Colonel Herbert's treatment in regard to the Vietnamese population. A fifth soldier told him a contrary story.

Mr. Lando presented on the program only the statements of the fifth soldier and failed to include on the program any reference to the statements of the four other soldiers, which indicated the care and concern that Colonel Herbert had shown while he served in Vietnam.

CHIEF JUSTICE BURGER: And the point of this is directed at what, at the presence or absence of malice?

MR. LUBELL: Yes, it is.

CHIEF JUSTICE BURGER: That should be our focus, should it not?

MR. LUBELL: Yes, within the absence of actual -- presence or absence of "actual malice" within the "reckless disregard" branch of that "actual malice" definition. As this Court has developed that --

JUSTICE WILLIAM H. BRENNAN, JR.: You mean there was no inquiry on the other arm of "knowing falsehood"?

MR. LUBELL: Knowing falsehood issues -- we have asked questions of Mr. Lando regarding knowledge of certain things, which were directly contrary to matters presented on the program, which indicate a knowledge of the falsehood of certain matters.

In fact, Mr. Lando has answered those questions. The concrete posture of the questions which have not been answered is -- all of those questions appear to involve the reckless disregard branch; although our same arguments would apply to his state of mind on the knowledge of the falsity --

JUSTICE BRENNAN: Yes, but are you telling us that he did answer questions directed to knowing falsity of some of the things that were shown on the program?

MR. LUBELL: He answered questions --

JUSTICE BRENNAN: But can you illustrate, for example?

MR. LUBELL: He answered questions. For example, on the program Mike Wallace stated that nobody that they interviewed told them that Colonel Herbert had reported any of the war crimes while in Vietnam.

He produced, during the depositions, sworn statements of a Captain Jack Donovan, which stated that Captain Donovan was present at Brigade Headquarters when Colonel Herbert was reporting the killings of the Vietnamese at Cu Loi on February 14, 1969.

He produced these documents; we asked him questions about these documents. We did not specifically ask the question: Did he know that what he stated on the program was false? So that question is not before the Court as such.

In terms of questions that he did answer during the deposition, Mr. Lando as well as Mr. Wallace did not answer a number of questions involving their state of mind.

In addition, I should point out to the Court that --

JUSTICE BRENNAN: Can you illustrate just that? Do you hav one? I don't want to take all your time, but --

MR. LUBELL: Yes, yes. For example, as to the question -- as to the question of whether there was a conflict in the -- in what he had obtained from interviews between a colonel and a major who were in Hawaii in early February --

JUSTICE BRENNAN: Are you speaking now of Mr. Lando?

MR. LUBELL: Yes, Mr. Lando -- in terms of whether he had interviewed a Colonel Nicholson and a major who had been in -- a Major Crouch -- who had been in Hawaii. And one of the questions that was involved is: When did Franklin return from Hawaii to Vietnam?

Questions were asked in his interviews of these two people about -- when Mrs. Franklin had left Hawaii. I asked Mr. Lando whether he thought there was a conflict or contradiction between the information he got from these two interviewees.

He said that he thought their statements regarding Mrs. Franklin's leaving Hawaii were contradictory. So he did give us certain answers regarding his state of mind.

There is no consistency as to which answers he did give regarding his state of mind and which he did not.

Perhaps the only consistency is that, as the deposition proceeded, Mr. Lando's counsel and counsel for CBS decided to take a firm position that they would answer no questions regarding his state of mind.

JUSTICE JOHN PAUL STEVENS: Mr. Lubell, could you give us perhaps the most persuasive example you can think of, of a question that you asked and that he refused to answers? One of the things I have trouble with in this case is, it's awfully general.

MR. LUBELL: Yes, yes. The question, for example -- the example that I posed before: He had interviewed a number of soldiers who had given him detailed information as to Colonel Herbert's treatment of the Vietnamese. He puts none of that information on the program.

He does not refer to the fact that there was information that Colonel Herbert had shown particular care that war crimes not be committed in Vietnam.

We asked him questions as to the basis upon which he did not include any reference to those interviews in his program, and nevertheless included a quote from General Barnes to Colonel Herbert --

JUSTICE STEVENS: Specifically, you question then m-- is this a fair paraphrase: Why did you not include any reference to such and such an interview? And he refused to answer any such questions?

MR. LUBELL: Yes. Actually, we didn't say -- we said: What was the basis for not including any excerpts from these interviews?

JUSTICE STEVENS: And that question he refused to answer?

MR. LUBELL: Yes. In addition, we asked him for his opinions on the creditability and veracity of persons whose statements he did include on the program. We think that was directly relevant to whether he entertained serious doubts as to matters included on the program.

JUSTICE BRENNAN: Those he also refused to answer?

MR. LUBELL: Those he refused to answer too, Your Honor. Now, when the defendants Lando and Wallace refused to answer questions in these areas of state of mind, plaintiff made a Rule 37 motion, which was brought before Judge Haight, the district court judge.

Judge Haight considered the Sullivan principles and specifically considered the burden of proof of clear and convincing evidence which applies in the Sullivan case -- considered the subjective nature of the state of mind that must be proven -- found that the questions which he had -- which Lando in particular and Wallace to some extent, because there were very few questions open around Mike Wallace -- that the questions that they had refused to answer were directly relevant to the subjective state-of-mind issue -- that the issue of the subjective state of mind was a core issue in the case, and that the information as to the defendants' state of mind could only be obtained from the defendants by the very nature of the subject matter.

JUSTICE BRENNAN: Incidentally, Mr. Lubell, at that stage was there any controversy whether some of the matters shown on the "60 Minutes" program was or was not false?

MR. LUBELL: The defendants take the position that the matters presented --

JUSTICE BRENNAN: No, I'm speaking at that stage of the --

MR. LUBELL: At that stage, no. The issue at that stage before the district court judge -- the issue was whether the questions were privileged in terms of press' --

JUSTICE BRENNAN: But the issue of falsity --

MR. LUBELL: Falsity --

JUSTICE BRENNAN: -- is very much in this case, too, isn't it?

MR. LUBELL: The issue of falsity is in the case, very much in the case, Your Honor.

JUSTICE BRENNAN: It still is.

MR. LUBELL: Yes, I believe it is. I don't think the defendants have conceded that the statements made on the program were false.

JUSTICE BRENNAN: And was there every any suggestion that the issue of falsity should be determined before you got into the question of malice? Because unless something was false, I gather you wouldn't have a case, would you?

MR. LUBELL: Right. There was no suggestion. As a matter of fact the discovery process has proceeded in uncovering -- trying to uncover -- both issues simultaneously.

And I'm sure Your Honors appreciate, both issues are intertwined because as we learned the facts, we also learn what it was that CBS ascertained.

So we also learn what CBS -- we also learn some evidence of CBS' state of mind as we learn the facts, in order to prove that the program contained serious falsehoods.

JUSTICE BRENNAN: But on the issue of so-called "editorial privilege," or whatever you're going to call it -- privilege -- I take it that wouldn't even be in the case unless there was first a finding of falsity of something about this program, would there?

MR. LUBELL: I'm not sure whether that is so because what the circuit court did is take this entire range of media activity, which they call the "editorial process," and immunized it from discovery by a plaintiff. Now, it is possible that in our search for the facts --

JUSTICE BRENNAN: Well, immunized it in the sense that it was privileged in some way.

MR. LUBELL: In the sense of privilege, we could not obtain what happened during that editorial process. And I suggest that it is possible that during the editorial process, certain things may have arisen which relate to the question of truth and falsity as well.

JUSTICE REHNQUIST: Mr. Lubell, in an ordinary lawsuit, in the discovery stage of the case, you have to do your discovery for all of the issues that you think will be necessary to prove at trial before you ever get to trial, don't you?

MR. LUBELL: Yes. Yes, Your Honor. And that is the way we proceeded in this lawsuit -- that we have asked questions of Lando and Wallace and the other persons we've deposed -- directed to the issues of truth and falsity, to the issue of actual malice, both issues.

And I don't -- I might suggest I don't see in this type of case how it is --

JUSTICE BRENNAN How you can avoid it?

MR. LUBELL: -- as a practical matter ever able to be distinguished.

The court of appeals reversed Judge Haight's --

JUSTICE BRENNAN: Forgive me, I shouldn't have taken so much of your time. But I gather you have allegations, I take it, do you not, on which you rely of falsity?

MR. LUBELL: Oh, yes. Oh, yes.

JUSTICE BRENNAN: Now, are they very -- about many, many matters --

MR. LUBELL: Yes, they are.

JUSTICE BRENNAN: -- or only a few, or what?

MR. LUBELL: We maintain that the program as a whole as well as many specific matters presented in the program are false.

And as I indicated in my opening comments, that the falsity concerned whether Herbert was a liar, as to the coverup of war crimes in the 173rd Airborne Brigade, whether Herbert himself was capable of committing acts of brutality against the Vietnamese, whether Herbert had used the war crimes issue as an excuse for his own relief from command, and whether Herbert had perpetrated a hoax upon the American people.

JUSTICE BRENNAN: All of which, as you say -- falsehood.

MR. LUBELL: All of which --

JUSTICE BRENNAN: Are depicted in the "60 Minutes" program?

MR. LUBELL: Yes. Yes, we say they are. Yes, Your Honor.

I wanted to return for a moment to the question of the defendants discussing or disclosing parts of their state of mind. There is another fact in this case which makes it unique in another way, and that is, after the program, Barry Lando wrote an article for Atlantic Monthly.

It is the other cause of action in this case which is not before this Court. However, the article itself is a full discussion of what was the purported editorial process in producing the program.

Not only that, but the article time and time again speaks of Mr. Lando's state of mind on matters that he was looking at while he was preparing the program.

So we have a situation where the press has publicly gotten a shot at saying what its state of mind was and now would prevent a plaintiff from examining the press in a lawsuit in which a district court judge can regulate whether there's any abuse of discovery -- from examining the press as to that state of mind which is critical in a Sullivan defamation action.

CHIEF JUSTICE BURGER: Are you suggesting that the responses were forthcoming as to the state of mind when it helped the defendant's case, but not when conceivably it might harm the defendants' case?

MR. LUBELL: Yes, we are suggesting that.

JUSTICE REHNQUIST: That wouldn't be the first time in a deposition that that sort of thing had happened, would it?

MR. LUBELL: I don't believe so. Now, the heart of our argument before this Court is that the court of appeals, by creating this editorial-process privilege, has upset the balance struck by this Court in Sullivan and its progeny.

Because what -- and succinctly what -- the court appeals has done is deprive the plaintiff of the opportunity of ascertaining direct evidence of this subjective state of mind where the plaintiff has to satisfy a clear and convincing burden of proof.

In substance, what the Second Circuit has done is -- by a rule which creates that privilege -- eliminated substantially all plaintiff's possibilities of recovery under the Sullivan principles.

And we submit that it was not the purpose of this Court in Sullivan and its progeny to preclude public officials or "public figures" from recovering for defamatory statements when those statements were maliciously made.

The court of appeals relies in part on this Court's decision in Branzburg as well as the line of cases concerning confidential-source disclosure.

We submit to the Court that the decision of the court of appeals is in error when it relies on Branzburg and the confidential-sources disclosure cases. The decision of this Court in Branzburg has provoked a great deal of discussion both in lower courts and in learned journals.

But there is one thing that is undisputed: Branzburg did not create an absolute privilege. The decision of the court of appeals, on the other hand, creates an absolute privilege.

In addition, the plurality --

JUSTICE THURGOOD MARSHALL: Mr. Lubell, what is the line that the court of appeals -- not the line that you draw, but where do you see the line?

MR. LUBELL: That they court of appeals drew?

JUSTICE MARSHALL: Yes. You're conducting your questioning -- where did they say you went off?

MR. LUBELL: I think under the court of appeals' decision, I think they would say any inquiry into what the media or the press did after obtaining the interview -- from that time until the time that the finished product is broadcast - we could not inquire into.

We could not find out whether in fact during that time, for example --

JUSTICE MARSHALL: Well, you see it as time and not subject matter?

MR. LUBELL: Well, we see it as both a period of -- I think there are two aspects of the court of appeals' decision, and it is difficult to ascertain which one is the more powerful aspect. We submit both are powerful in terms of upsetting Sullivan completely.

But one is -- you cannot inquire into the subjective state of mind which --

JUSTICE BYRON R. WHITE: Well, Mr. Lubell, would you think that any question that started out, Did you know? would be barred by this ruling?

MR. LUBELL: Yes.

JUSTICE WHITE: Did you know a particular fact?

MR. LUBELL: Yes, we believe that that would pertain to the state of mind of the reporter.

JUSTICE WHITE: So you couldn't inquire whether a particular fact was true or not?

MR. LUBELL: We could inquire as to who he interviewed. We could not inquire as to whether he knew --

JUSTICE WHITE: You could find out what he was told?

MR. LUBELL: What he was told -- but we could not inquire, for example, as to whether he knew that the person he was interviewing had --

JUSTICE WHITE: But you could ask --

MR. LUBELL: I'm sorry.

JUSTICE WHITE: Couldn't you ask, Did you ever learn that so-and-so?

MR. LUBELL: I believe that when Chief Judge Kaufman talks about any intrusion in to the mental process of the press, I believe that he speaks of --

JUSTICE WHITE: I didn't -- you really read it to mean that you cannot inquire of the reporter the state of his knowledge about whether he knew certain facts or not?

MR. LUBELL: We can inquire as to -- I believe we can inquire as to what he did, but I do not believe we can --

JUSTICE BRENNAN: You interviewed John Jones? I did. What did he tell you? He told me so-and-so. Did you know that John Jones had said not that but this to somebody else? Couldn't you ask that question?

MR. LUBELL: It is my opinion that Chief Judge Kaufman's opinion is not clear as to whether that question is permissible when he states that any intrusion into the mental process of the reporter is precluded.

JUSTICE WHITE: You mean you couldn't say, Were you ever told by anybody else to the contrary?

MR. LUBELL: That you could ask, I believe, Your Honor.

JUSTICE WHITE: Well, couldn't you go on and say, Did you ever learn from any other source to the contrary?

MR. LUBELL: I think, Your Honor, you get closer to an inquiry regarding the state of mind; I must say that I believe Chief Judge Kaufman's decision as it stands now creates several different interpretations on that issue.

CHIEF JUSTICE BURGER: Mr. Lubell, let me interrupt you. You can reflect on that during lunch hour and resume there at 1:00 o'clock.

MR. LUBELL: Thank you.

* * *

CHIEF JUSTICE BURGER: Mr. Lubbel, you may continue.

MR. LUBELL: Thank you, Your Honor. In answer to the open question, so to speak: It's difficult to give a precise answer as to what the court of appeals' decision means in connection with whether questions of whether the defendants knew of certain things would be permitted.

JUSTICE BRENNAN: Well, you don't have any court opinion anyway, do you?

MR. LUBELL: I'm sorry?

JUSTICE BRENNAN: There's no court opinion from the court of appeals.

CHIEF JUSTICE BURGER: No majority.

MR. LUBELL: No, no majority opinion. There's an opinion by Chief Judge Kaufman who seems to indicate that perhaps you can ask questions --

JUSTICE BRENNAN: Now, which opinions are you talking about in what you're about to say? Judge Kaufman's or Judge Oakes'?

MR. LUBELL: Well, I think the chief judge's opinion at page 22a of the appendix describes what plaintiff has already done in the course of discovery and states that he has already discovered what Lando knew, saw, said and wrote during his investigation.

Then subsequently he states, "Now, Herbert wishes to probe further and inquire into Lando's thoughts, opinions, and conclusions."

JUSTICE WHITE: Well, doesn't that imply that you can ask anything -- ask him whether he knew something?

MR. LUBELL: Yes it does. Yes it does. However, when you get into the question of the editorial process issue and look not only to the chief judge's opinion but the concurring opinion of Judge Oakes, where he states at 42a, it is quite another - I'm sorry, it starts off:

Thus it is one thing to tell the press that its end product is subject to the actual malice standard and that a plaintiff is entitled to prove actual malice; it is quite another to say that the editorial process, which produced the end product in question, is itself discoverable.

Now, if during the editorial process --

JUSTICE WHITE: Yes but if either -- if there are only two people supporting the judgment of the court of appeals, and either one of them says that something is discoverable, it's discoverable under that judgment.

MR. LUBELL: However, if it's discoverable in a time period that might be described as the editorial process time period, which both of the opinions say cannot be inquired into -- for example, if we were to ask whether during the --

JUSTICE WHITE: Well, you can ask -- I would think it would be a fair implication from what you read a moment ago that you could say when you went into this process. Did you know it? ANd when you came out of it the process. Did you know it?

MR. LUBELL: What -- I don't -- I think we possibly could ask that. However, what we could not ask is what it is he knew or came to know during that process. For example --

JUSTICE WHITE: Well, I know, but if he came out of it knowing it, he learned it somewhere.

MR. LUBELL: The problem is, we wouldn't know what is is he came out with knowing.

JUSTICE WHITE: Well, you would ask him a particular question: Did you know so-and-so? Or, Did you not know so-and-so?

MR. LUBELL: We would have to ask him every -- knowing every issue under every aspect of the case. We would not be able to--

JUSTICE WHITE: Well, how else do you prove a lawsuit?

MR. LUBELL: But we would not be able to find out what -- how it is that he came to know something. For example, what if during the process Mike Wallace said to Barry Lando, or someone else from CBS said to Barry Lando:

I ran into this person who was involved in your program who you've interviewed, and he tells me something which is contrary to what he told you. This is during the editorial process -- conversation within CBS.

JUSTICE WHITE: Then you think the -- you think that under this judgment you could not ask, Were you ever told something to the contrary?

MR. LUBELL: I think it's possible that the defendant could raise the question that if it was told to the defendant during the editorial process --

JUSTICE WHITE: By somebody on the -- within the editorial process?

MR. LUBELL: In the course of the editorial process, yes, Your Honor -- I think.

JUSTICE WHITE: But if it were told by some outsider, you could inquire into that.

MR. LUBELL: It may well -- I can't -- I would argue -- obviously if it came up in the district court, I would argue that you could.

JUSTICE WHITE: Oh, sure you could.

MR. LUBELL: But I don't -- I cannot say with confidence that that answer is supported by these two decision which form the majority --

CHIEF JUSTICE BURGER: Well, assuming now, Mr. Lubell, that the question suggested by Justice White has been answered, and that he has had two statements made to him which are not consistent.

Under this opinion, or these collective opinions, do you think you can then ask, Why did you publish this, and why did you omit that?

MR. LUBELL: No, I do not think -- and I will be quite clear on this - I don't think we could ask that. What we cannot ask is: What did he think about what he learned or what he knew? For example -- and this is a concrete example from this case --

JUSTICE WHITE: You can't ask whether he thought it was true or false?

MR. LUBELL: That's right. That's right. I don not think we can ask that question. For example, he interviewed --

JUSTICE WHITE: And you can't ask whether he thought some witness was truthful or not, or whether he was telling a falsehood or not.

MR. LUBELL: We can't --that's right. And also we can't answer whether --

JUSTICE WHITE: In other words, you can't say, Did you believe him?

MR. LUBELL: Or , Did you think you had to check it further? For example, he interviewed a witness -- a soldier by the name of Bob Stemmie. Defendant produced notes which say "Have to check with Stemmie further."

JUSTICE BRENNAN: Incidentally, you have no problem about sources here, did you, in this case?

MR. LUBELL: No, in fact there was a question of sources which was then waived by CBS. There is no source problem in this case. I would like to say -- I see that the white light is on. I want to reserve a little time for rebuttal.

But I did want to just focus on the Branzburg analysis by the plurality of this Court, plus Justice Powell's concurrence in Branzburg -- as it was further elucidated by the Justice in footnote 3 in Zurcher-- that the proper approach to question of discovery where the First Amendment is implicated is a case-by-case approach where questions of specificity, relevance, and materiality -- importance to the core issues of that case-- are explored by the district judge.

And District Judge Haight in this case did explore those issues and did attempt to -- and came to conclusions giving due care and consideration for the First Amendment values.

What he did not do -- and apparently what the court -- what the respondents complain of -- he did not establish a privilege by which the defendants can refuse to answer questions involving their subjective state of mind -- the very issue in a Sullivan case.

I will reserve the rest of my time. Thank you.

CHIEF JUSTICE BURGER: Mr. Abrams.

MR. FLOYD ABRAMS: Mr. Chief Justice and may it please the Court:

I would like to start, if I may, by outlining briefly what we considered at the time, and still consider, the vice of the district court opinion, and then proceed to the opinion of the court of appeals and some of the questions which members of this Court have addressed to Mr. Lubell.

The crux of the district court opinion, Mr. Lubell to the contrary, was not that the questions asked went to the core of the case, and it was not that the questions asked provided information which could only be obtained from the journalists involved.

Those are not findings of the district court, and indeed, as I read the district court opinion, they are inconsistent with the findings of the district court.

The district court concluded as a matter of law that the concept of editorial process which we urged upon him stemming from the cases of this Court, such as the Miami Herald case, had nothing to do with the question of the scope of the pre-trial discovery in the Sullivan case.

CHIEF JUSTICE BURGER: How does Miami Herald bear on this case?

MR. ABRAMS: Our argument, Mr. Chief Justice, is this: We think that what the Court established in the Tornillo case was, at its narrowest, of course, that the right-or-reply statute was unconstitutional.

But broader that that, we think it established a First Amendment proposition that at least too-close inquiry into the editorial process of a newspaper, or in this case a broadcaster, is itself barred -- or at least presumptively barred under the First Amendment.

If I can give you a hypothetical: If Florida had responded to this Court's ruling in the Tornillo case by passing a new statute requiring that a newspaper which did not print an answer had to disclose why it didn't print an answer.

CHIEF JUSTICE BURGER: Yes, but that wasn't involved in the Miami Herald -

MR. ABRAMS: Absolutely not. Your Honor, I'm not urging -

CHIEF JUSTICE BURGER: We're going beyond --

MR. ABRAMS: Without question we're going beyond that case, but what I am saying is that it does seem to use that the underlying theory of that case ought not to be limited to the right of reply statue any more than you would limit, I think, Mills v. Alabama to limitations to what occurs on election day and what can be printed by a newspaper on election day.

We think what the Court should do, what is has not yet done -- and this is the first case since Tornillo in which this is raised -- and what we think the Second Circuit concluded as well, is that the underlying basis of Tornillo is not alone that right-of-reply statutes are unconstitutional, but that the choice of material by editors to go in newspapers or on broadcasts -- the treatment of material to go in, the nature of content -- is at least presumptively protected -- just as I think it would be if in the Florida case, the Florida legislature -- again, a hypothetical -- if the Florida legislature after your ruling had subpoenaed the editor of the Miami Herald and asked him the very questions, the very question, asked of Barry Lando in this case -- in effect, Why did you print this and not that?

What was the nature of your editorial discussion making?

I do not suggest that this is what the Court held in Tornillo. Or course it did not. But we do think that it is consistent with Tornillo, and that the kind of dedication to the notion of editorial process protection, which is embodied in Tornillo itself, ought to be embodied here as well.

I think I can best illustrate it by reference to Mr. Lubell's answer to Mr. Justice Stevens earlier, in which he was asked, What's the best example that you've got? What is it that you're really losing? What kind of questions aren't being answered here?

And Mr. Lubell gave an example, which I think is a fair example, of a situation in which a particular individual was interviewed on the program -- on the page reference, if the Court wishes to see it later, is at 53a of the appendix.

And this person, who had served with Colonel Herbert in the Army - Bruce Potter by name - said on the program that he was in a helicopter with Colonel Herbert, and that in the helicopter next to Colonel Herbert, Colonel Herbert had suggested by thrusting a prisoner of war toward the open door of the helicopter that he might throw him out - and that Colonel Herbert has as well thrown sandbags out to suggest to people on the ground - a prisoner on the ground - that there were people being thrown out of planes, and that therefore, they should talk. That's what Bruce Potter said.

CHIEF JUSTICE BURGER: You think that's an unfair strategem in war?

MR. ABRAMS: Your Honor, I don't think its' defamatory. It is their position that that is defamatory per se. I don't think that it even states a cuase of action to say that Colonel Herbert is, quote, capable of brutality, unquote.

CHIEF JUSTICE BURGER: Well, unless that statement were false and it was known that it was false, then it might be, would it not?

MR. ABRAMS: I don't think it would be defamatory even then in time of war.

JUSTICE WHITE: That's a question of New York law.

MR. ABRAMS: I'm sorry?

JUSTICE WHITE: That's a question of New York law.

MR. ABRAMS: Yes, Yes, that's a question of New York law, and I thin New York law, to some extent at least, has been constitutionalized as to what is defamatory.

This Court hasn't yet ruled on the scope of the First Amendment protection, if any, it terms of a definition of what is defamatory, but there is a Second Circuit ruling which so holds -

CHIEF JUSTICE BURGER: Would you agree, Mr. Abrams, that under New York Times v. Sullivan, malice is a state of mind?

MR. ABRAMS: Your Honor, I fully agree that in order to prevail, a plaintiff in a New York Times v. Sullivan case must either prove that -- in this case -- CBS knew what it was broadcasting was untrue, or broadcasting with reckless disregard of truth of falsity, meaning with serious doubts as to-- I don't dispute that at all.

CHIEF JUSTICE BURGER: The question is -- is -- the question, then in the case is: how the plaintiff finds that out? Is that not so?

MR. ABRAMS: I think the plaintiff find it out, Your Honor, first of all by the kinds of materials he was given. He was -- there was an extraordinary amount of production in this case.

I don't want to limit our argument today just to this case, but I think Judge Kaufman's opinion is clearly informed by what it is that the plaintiff had in this case.

And if I may say so, there's no suggestion at all in any opinion of any court in this case that there was a selective production for the purpose of making CBS look any better.

And what Judge Kaufman said --

JUSTICE WHITE: I gather from that -- from what Judge Kaufman said, that he wasn't indicating that the plaintiff would be limited in finding out what information the newspaper had?

MR. ABRAMS: Exactly, Mr Justice White.

JUSTICE WHITE: Except perhaps what the individual reporter might have learned during the process.

MR. ABRAMS: Perhaps that, and even that was not --

JUSTICE WHITE: But in terms of what information he had from outside ?

MR. ABRAMS: All questions that were asked --

JUSTICE WHITE: What did you learn? Or what did you know?

MR. ABRAMS: Yes. What did you learn? Or what did you know? Who did you talk to? Who did you interview? Judge Kaufman said the form and frequency of communications with sources, including transcripts of interviews.

JUSTICE REHNQUIST: What about - a question: What did you believe, as Mr. Justice Brennan said a moment ago, when you were told that? Or what was your reaction?

MR. ABRAMS: Well that, I think, Mr. Justice Rehnquist, gets a lot closer to what answers were not given in this case.

JUSTICE REHNQUIST: Well, but that's a real problem for plaintiffs in cases like this, having in my own practice been a party on both sides of fraud cases and defamation cases. You don't get admissions out of defendants' mouths that they have lied.

You have to be -- go after them in tangential ways.

MR. ABRAMS: Your Honor, if to refer to the questions involved here, i will assert to you, at least, that they are set-up questions for our side. These are not difficult questions to ask.

We may be right or wrong on the principle that we assert to you today about First Amendment protections. But these are not difficult questions to answer.

These are questions where, quote, were you interested in showing a balance viewpoint of Colonel Herbert's treatment of the Vietnamese? Now, no -- at least in my experience, Your Honor, I don't know anybody who would have much trouble responding to that kind of question.

Now, that may or may not implicate editorial process. Editorial process may or may not be protected. We think it is, and we think that's it. But I think it's very important -- and I've just been asked as well - How does a plaintiff prove his case?

Well, what is the plaintiff to do? What kind of evidence can he have? And our answer to that question is that the plaintiff is to prove his case first by all the facts, all the objective facts: What happened? Who did he interview? What did he know? And what was really happening?

If that program was wrong, if there are people on the outside who will come in and testify that it is not true that certain things occurred, and for some reason CBS knew it wasn't true, what could be more probative that that? And that's the way you prove a securities case.

CHIEF JUSTICE BURGER: How do they find out? How do they find out what CBS knew except by asking them?

MR. ABRAMS: Those question have all been answered, Your Honor. There is really dispute in this case --

CHIEF JUSTICE BURGER:: You concede, then --

MR. ABRAMS: Yes, sir, that there is --

CHIEF JUSTICE BURGER:: -- that when you ask the CBS representative, When you said this, did you know A, B, C, D?

MR. ABRAMS: All the questions about what CBS knew have been answered. What has not been answered are questions that Judge Kaufman characterized as a small number of questions relating to his beliefs, opinions, intent, and conclusions in preparing the program.

JUSTICE WHITE: Well, then you would say he shouldn't be asked -- he shouldn't be required to answer, Do you know he was a liar?

MR. ABRAMS: That's right, Mr. Justice White.

JUSTICE WHITE: Or did you know he was telling a falsehood?

MR. ABRAMS: Let me say that if he were asked a question, and he was not, Did you believe what was on the program? -- there are no such questions at issue here - we would not have objected, and I do not read the opinion --

JUSTICE WHITE: Would you have objected --

MR. ABRAMS: No, sir.

JUSTICE WHITE: -- to a question. At the time you have this interview with this particular source, did you believe him?

MR. ABRAMS: I think that that falls within the area of protected information, Your Honor. Let me say that I think one could make, rather easily make, some gradations of protection here.

To the extent that one takes as one's lodestar here a notion of --and I appreciate the fact that it is necessarily an amorphous, developing concept of editorial process -- what is most important is what was on the program and what was off the program.

And it seems to me the single most protected thing in this area are questions such as Mr. Lubell referred to earlier, which is, Why didn't you put the four people on who had good things to say about Colonel Herbert?

Now that, it seems to me, goes to the absolute core of what should be protected in this area.

JUSTICE BRENNAN: Well, why --if you believe him, why does that also go to the absolute core?

MR. ABRAMS: I'm sorry, Mr. Justice Brennan?

JUSTICE BRENNAN: Why does that go to the absolute core?

MR. ABRAMS: It--let me say--

JUSTICE BRENNAN: Did you believe him?

MR. ABRAMS: I meant to distinguish between the example I just posed, and the "did you believe" question, which it seems to me is necessarily a step away. As I said, we have not urged--

JUSTICE BRENNAN: No, but didn't I understand you to answer my Brother White that, "Did you believe him?" would be--

MR. ABRAMS: We think that should fall as well--

JUSTICE BRENNAN: Why?

MR. ABRAMS: --within the area.

JUSTICE BRENNAN: Why?

MR. ABRAMS: Because it seems to me that to probe that deeply into the mind of the journalist is first of all not necessary in order to allow the plaintiff to prove its case.

It is not the kind of question which has historically led, so far as I know, any plaintiff to win a libel case governed by New York Times against Sullivan.

And I think that -- and this question before you --I think to make the journalist answer the question, not, Did you believe what was on the program--

JUSTICE BRENNAN: Well, how about the question, Mr. Abrams, not "Did you believe him?" Didn't you know that he had told a different story to John Smith? How about that?

MR. ABRAMS: The question wasn't asked.

JUSTICE BRENNAN: No, I say, what about it? Is that within or outside the protected clause?

MR. ABRAMS: I would think that questions as to what the journalist knew are protected --are questions which he ought to answer.

JUSTICE WHITE: Even though "knew" involves some sort of cognition.

MR. ABRAMS: Some sort. But it seems to me that on any kind of graded scale, as you go down that road, at the end of it at least is, Why didn't you put these four people on who said something good about Colonel Herbert?

JUSTICE WHITE: But at least you think --I gather you would think that he could be asked, well, Were you told something to the contrary by somebody?

MR. ABRAMS: Yes, and there would be no objection to any such question.

JUSTICE WHITE: And you could say, And you did not put this on the program?

MR. ABRAMS: Yes, and there was no objection to any such question.

JUSTICE MARSHALL: Mr. Abrams, assume this went to trial. You couldn't then ask him whether he believed it or not?

MR. ABRAMS: If an objection were made, Mr. Justice Marshall, by the defendant in this case, any question that was objected to, it seems to me, could not testified affirmatively to by the press.

JUSTICE MARSHALL: I'm talking about at the trial. You say, Did you believe it when he told you that?

MR. ABRAMS: I think that if we object to any question on this basis at pre-trial, we could hardly be the ones to introduce evidence to that effect at the trial.

JUSTICE MARSHALL: I didn't say -- I said, this same man -

MR. ABRAMS: Yes.

JUSTICE MARSHALL: Mike Wallace is on the witness stand.

MR. ABRAMS: Yes.

JUSTICE MARSHALL: And he's answering a particular phase in your program: Did you believe that man to tell the truth?

MR. ABRAMS: We have taken the position, Mr. Justice Marshall, that all questions are proper as to what was on the program; that is to say, Did you believe so-and-so insofar as what he said on the program? We think is a proper question, and we would not have objected to such a questions --

JUSTICE MARSHALL: No, but I'm talking about, Did you believe it when he told you? I can't get this line between the two.

MR. ABRAMS: If it was broadcast on the program, my answer to you is yes.

JUSTICE MARSHALL: For example, I know what the answer would be, but I assume you say he couldn't answer a question, Did you do this with "reckless disregard"?

MR. ABRAMS: Well -

JUSTICE MARSHALL: You'd have to say you couldn't ask him that question.

MR. ABRAMS: We think, Mr. Justice Marshall -

JUSTICE MARSHALL: You wouldn't object because you know what the answer could be.

MR. ABRAMS: I know what the answers would be to all these questions.

JUSTICE REHNQUIST: Well, but that's the ultimate issue in the case in New York against Sullivan, what Justice Marshall said, isn't it? One of the ultimate facts the jury has to determine is whether he did it with "reckless disregard" of the truth.

MR. ABRAMS: That's right, and what I said is that we have not -- Mr. Lubell has not asked these questions, but we would not have objected, and we do not maintain that the privilege we seek here protects against a response to the question about whether anything that was on the program was believed by the journalist or was known by the journalist to be untrue.

That, it seems to me, if nothing else, is waived by the very fact of putting it on the program. What we are concerned with here are questions as to the selective process of inclusion and exclusion -- and particularly, the material that was excluded from the program.

JUSTICE REHNQUIST: I thought a moment ago you said a question about belief was the truth of something could not be asked.

MR. ABRAMS: What I excluded from that, Mr. Justice Rehnquist, was a question as to the belief of material which was actually broadcast on the program.

And what I said is that that which broadcast on the program, or printed in a newspaper, it seems to us, is material which the journalists ought to be prepared to respond to.

Where we start to differ is that material that was either not broadcast on the program or beliefs, conclusions about witnesses in general -- not about particular material --

JUSTICE REHNQUIST: Well, what that amounts to is the soft pitches you can hit, and the hard ones you can duck.

MR. ABRAMS: Your Honor, there are no -- I ask you to look at the questions here. There's not a question I couldn't answer.

JUSTICE REHNQUIST: I know, but in -- but the kind of questions that you say are not answerable, the ones that go further back in the process. Certainly no producer is going to say, I didn't believe what I put on the program.

But if you go further back in the process -- What did you think after you learned that X had said such and such? -- you may get a string of answers that may permit a jury to infer that he didn't believe it.

MR. ABRAMS: Well, it seems to me, Mr. Justice Rehnquist, that it would be a very rare libel case indeed that the kind of answers you would get to the kinds of question that you rise, or the kind of questions asked here, Did you consider doing something that you didn't do?

-- these are not difficult questions, at least in my experience.

I think in the St. Amant case, this court indicated by way of illustration, I think, but indicated the kinds of ways to prove "reckless disregard."

And the kind of examples that the Court gave there were where the "story is fabricated" where the story is a "product" or the reporter's "imagination," where the story is "based... on an unverified, anonymous telephone call," where "the publisher's allegations is so inherently improbable that only a reckless man would have put them in circulation," where "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."

We are providing all the objective information from which those kinds of things, and more, can be determined.

CHIEF JUSTICE BURGER: Now you've emphasized -- you've emphasized objective, Mr. Abrams, on a number of your responses. At least three places I observed in the Sullivan case, the Court refers to "malice" as a "state of mind."

And I gathered earlier you did not -- you have no quarrel with that, that malice is a state of mind.

MR. ABRAMS: That's correct.

CHIEF JUSTICE BURGER: How do you probe for the presence or absence of malice if you can't ask what was the state of mind at the time this or that was done?

MR. ABRAMS: It seems to me, Your Honor, that the way is has been done in libel cases, and the way it is routinely done in criminal cases, and security act cases, and antitrust cases, is for a jury to infer a particular state of mind from a particular set of facts.

CHIEF JUSTICE BURGER: Well, let's take a criminal case for example, and the defense is self-defense.

You wouldn't suggest, would you, that you can't ask the prosecutor -- once the defendant has taken the stand asserting self-defense -- that he can't cross-examine without limit on his state of mind with respect to --

MR. ABRAMS: I think once the defendant takes the stand in that type situation, and to the extend that that's a relevant issue, he certainly can. But the fact --

CHIEF JUSTICE BURGER: Wouldn't the state of mind be relevant to self-defense?

MR. ABRAMS: Yes, sir, it would. What I'm saying is that in a more standard -- another criminal example would be where the defendant doesn't take the stand --

CHIEF JUSTICE BURGER: Well, or course, you can't prove his state of mind if he isn't there.

MR. ABRAMS: But the question before you is: Are we entitled not to respond to certain questions? And I think that that is the analogy to the defendant who has respect to -- does not make a self-defense argument, but simply puts the prosecution to its proof.

And in that type of situation --

CHIEF JUSTICE BURGER: But in a civil case, you can't do that, can you? You must take the stand.

MR. ABRAMS: Unless you are -- you must take the stand. But unless you are privileged not to respond to certain questions -- and that indeed is the question before you.

CHIEF JUSTICE BURGER: Well, do you suggest that privilege of a reporter is different from the privilege of some other witness?

MR. ABRAMS: Well, it seems to me, Your Honor, that this will take a moment or two, because it seems to me that the Court is yet to rule on whether the Gertz case, first of all, applies alone to the press and the media, or to other entities.

And so that would be a threshold ruling for the Court to make as to whether there is any different treatment under libel law, or under slander law.

If the treatment is the same, it seems to me, Your Honor, that there are special reasons why reporters need this protection. I do not take the position that individual speakers cannot get the protection. I don't think that's before you.

But it does seem to me that in fact the only people that engage in the kind of process we're talking about here tend to be journalists. I suppose I could conceive a situation where that were not true. But certainly on a regular basis --

CHIEF JUSTICE BURGER: But there are many libel case brought against people who have nothing to do with journalism, aren't there?

MR. ABRAMS: There are manly libel cases, and Your Honor, it is our position that only open question is whether this protection ought to go to the quote, press, unquote -- including a lot more than journalists -- or to the press and speakers as well.

CHIEF JUSTICE BURGER: Well, narrow it down - let's narrow it down on two different kinds of defendants in libel cases: One is a media reporter and one is just another taxpayer who happened to -

MR. ABRAMS: Write a book?

CHIEF JUSTICE BURGER: No, just make some bad statement about someone. Not a writer.

MR. ABRAMS: Oh, I'm sorry.

CHIEF JUSTICE BURGER: Just another citizen who is not - doesn't purport to be a professional writer.

MR. ABRAMS: Right.

CHIEF JUSTICE BURGER: Do you think there is a difference in the scope of probing the mind of the one from the other?

MR. ABRAMS: I'm saying the first thing I would have to know, Your Honor, is whether New York Times against Sullivan protects the individual in that type situation.

And what I was observing is that I don't think this Court has yet ruled on the question of whether the Sullivan case does afford such protection.

If it does, it seems to me that there are particular reasons why the press needs this protection because of the nature of the processes it is engaged in, the regularity of it, and the like -- but that I certainly wouldn't oppose if for anyone else.

It seems to me that you often get cases before you which have peculiar applicability to one or another body of life in the country. The Tornillo case is one.

It may not be just a press case, but it is unlikely to arise in the context of a statute requiring individuals to speak in reply to things that other people have said.

And I think that that's the same proposition here. You need not say, and we don't urge you to say, that the First Amendment protection that we think exists here, and should exist here, is limited to the press.

But in all candor, I have to tell you, I don't know that it will often arise in situations which don't involve the press or writers or people who engage in the kind of process which CBS News, in this case, has in fact engaged in.

CHIEF JUSTICE BURGER: Do you know of any case -- none in this Court of course - but any case in any court which has put a limit on the cross-examination of the witness when the issue is malice, whether its a murder case or whatever kind of case it may be?

MR. ABRAMS: Well, the only type situation that - I mean, I'm trying to think of cases where malice is in fact at issue. Our case here is the first libel on one side or another which relates to this question.

Insofar as criminal cases are involved, they wouldn't really involve malice. I can't think offhand of an answer --

JUSTICE WHITE: Well any kind where intent -- any kind of a fraud case -- civil fraud case.

MR. ABRAMS: Yes.

JUSTICE WHITE: A 10(b)(5) case, now, how about that?

MR. ABRAMS: Well, a 10(b) --) was limiting my answer to a question of malice. But in terms of intent -

JUSTICE WHITE: Well, state of mind.

MR. ABRAMS: State of mind or intent is routinely proved in 10(b)(5) cases by reference to what the person did and what the person knew.

JUSTICE WHITE: But you wouldn't suggest that there shouldn't be cross-examination about his state of mind?

MR. ABRAMS: No, I would not suggest that. And I have no reason to think that that is constitutionally protected.

JUSTICE WHITE: Mr. Abrams - while I've got you interrupted - I take it that your submission here is not just that the state -- that there should be no inquiry into state of mind, but there shouldn't be any inquiry into the editorial process, the decision-making process.

And for example, you would say it would be an improper question to say, What did another one of your editors tell you.

MR. ABRAMS: I think as a general matter, certainly.

JUSTICE WHITE: Or, What did you tell one of your senior editors? Any conversations in the process. It's sort of similar to an "executive-privilege" claim.

MR. ABRAMS: Yes, it is indeed; one of the analogies that we urge on you in our brief is that of "executive privilege" -- is that indeed, as the Court observed in the Nixon case, that "human experience teaches "us that people will speak less freely in that type of situation if they know that what they're going to say is going to be exposed to "public dissemination."

And there are similar rulings with respect to far lower-level people in the Executive Branch, the mental processes of which are at least generally barred from disclosure. Similar rulings under that speech and debate clause -

JUSTICE WHITE: Well, sometimes what happens with the Government when they claim the privilege is what the Government's interest -- if they want to claim the privilege, they must give the interest. In a criminal case, for example --

MR. ABRAMS: In a criminal case, that is correct.

JUSTICE WHITE: -- if they claim -- they want to claim a privilege, they may have to dismiss the prosecution. And if the Government wants to pursue someone civilly and still claim a privilege for some information that they have, they may not be able to press their claim very far.

MR. ABRAMS: I appreciate that. I think that would be a high price to put on this privilege, if you should sustain the privilege.

CHIEF JUSTICE BURGER: It's true in civil cases, is it not, in Federal tort claims cases against the Government, one of the classic cases in this Court?

The Government said it could not respond about all the gadgetry and things that were in the experimental plane because this would give away national secrets.

And so the courts said, If you can't respond, then the Court will presume the worst and enter judgment against the Government.

MR. ABRAMS: Our position here, Mr. Chief Justice, is not that we cannot respond, but that you ought to rule that we need not respond, and --

CHIEF JUSTICE BURGER: Well, or course, theoretically, the United States could have told the court in Philadelphia in the case that, No, we will not respond because this is a national security matter, which is about what it did.

Then the court said, if you don't respond, we'll enter judgment against you. We'll presume the worst. That's the effect of it.

MR. ABRAMS: If that were the nature of any privilege granted by the Court in this area, it would not be very expansive.

JUSTICE MARSHALL: Mr. Abrams, let's get way away from this case. The reporter has a transcript of a trial in California, and he selects out of it portions to read on his television show.

Could you ask him about what discussions he had with people about which one of those portions he should read?

MR. ABRAMS: You can certainly have the whole transcript at the outset, in order to make judgments about that.

JUSTICE MARSHALL: Right, and he picks and chooses.

MR. ABRAMS: Yes, and if the process --

JUSTICE MARSHALL: And he does that with discussion with other people in his office.

MR. ABRAMS: It seems to me, Mr. Justice Marshall, that those kinds of discussions in the office, as opposed to the facts of what he had, what he knew, and what he did, should indeed be protected.

And it seems to me that the precise analogy to that is, in fact, executive privilege cases and the variety of other cases about the nature of discussions in situations like that.

At the very least, it is our view that they should presumptively be protected, and that if they're to be overcome, they should be overcome in very rare circumstances. One of the worst problems with this case is that the effect of it is --

JUSTICE MARSHALL: Well, where do you get the "chilling" there? Who gets chilled?

MR. ABRAMS: Well, it seems to me that what is --

JUSTICE MARSHALL: Who gets chilled?

MR. ABRAMS: What is chilled are the people who speak to each other in the newsroom, aware --

JUSTICE MARSHALL: They get chilled? Reporters get chilled?

MR. ABRAMS: Oh, Mr. Justice Marshall, I am not suggesting that this has happened. On the other hand, I know of no case in which discovery has gone on for 26 days and 2900 pages in a libel case.

If this case is lost, Mr. Justice Marshall, or if I may say so, if there is no protection at all here, I think it fair to predict that question like this will, for the first time, become routine -- that public officials and pubic figures, the very people set out by this Court in Sullivan as being, for a variety of societal reasons, people who will receive less protection against defamatory falsehoods than other people, will be able to commence libel actions and immediately plunge into the core questions at issue here: Why did you write these bad things about me? Why didn't you put on the good things about me?

JUSTICE WHITE: Of course, this never happened under the old libel law.

MR. ABRAMS: It never did, I don't want to follow that up, but it never did.

JUSTICE REHNQUIST: Well, before 1965, it happened all the time -- before New York Times v. Sullivan.

MR. ABRAMS: Not state of mind inquiry. At that point was wholly truth or falsity -- was it privileged --

JUSTICE REHNQUIST: How about under punitive damages?

MR. ABRAMS: For punitive damages it sometimes came up in very specific and narrow circumstances -- not question as to why certain material was included and excluded. Punitive damage questions were historically the questions about, What did you think of him? What was your --

JUSTICE REHNQUIST: Was there actual malice?

MR. ABRAMS: Yes. Actual malice in non-constitutional terms.

JUSTICE BRENNAN: Mr. Abrams, what of Mr. Lubell's comment on editorial process? All of that's been revealed in Mr. Lando's article in the Atlantic Monthly.

MR. ABRAMS: Well, first -

JUSTICE BRENNAN: As it applies to this case.

MR. ABRAMS: -- I don't think it's so, Your Honor. I have read the article.

JUSTICE MARSHALL: I haven't seen it. Is it in the record here?

MR. ABRAMS: Yes, sir. There's been no finding by any lower court that that is the case. If there is a waiver problem here at all, either by virtue of the Atlantic Monthly article, or by virtue of any answers which were inadvertently given in the course of the 26 days which this was spread, it seems to me that that's something for the district court to deal with. We are not taking position that there is no such thing as waiver.

CHIEF JUSTICE BURGER: Let me ask you just one more question about your reference to discussions within the publisher's establishment. I was just focusing on the language of the opinion in New York Times against Sullivan, and let me read it to you.

Finally, there is evidence that the Times published without checking its accuracy against the news stories in the Times own files. Remember that was an ad, not a news story.

The mere presence of the stories in the files does not, of course, establish that the times "knew" -- and the Court put that word in quotation -- "knew" that the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times organization having responsibility for the publication. Now how would you get at that if you couldn't ask these people what was in their minds at the time?

MR. ABRAMS: You would ask the person in charge of advertising acceptability at the New York Times, What did you know? Did you look at the files? What was in the files?

CHIEF JUSTICE BURGER: How about the editor, to ask him what was in the files?

MR. ABRAMS: Well, let me first say, Your Honor, that the files here have been turned over. So insofar as the files as such are concerned -- and they objectively reflect what is at issue -- that can be obtained.

What cannot be obtained directly by way of questions, in our view -- and I think in view of both Judge Kaufman and Judge Oakes -- are the individualistic, tentative, probing, conclusions, musings, whatever, of journalists as they go about their job.

But all the objective questions as to what was there, what happened, what happened next, what didn't they look at, what did they look at -- that's what was lacking in New York Times against Sullivan. But for the plaintiffs to have --

JUSTICE WHITE: Or any conversations whatsoever in the editorial process.

MR. ABRAMS: Are what? I'm sorry.

JUSTICE WHITE: Or any conversations in the editorial process may not be inquired into.

MR. ABRAMS: It seems to use that conversations -

JUSTICE WHITE: That's a considerably different kettle of fish than just talking about state of mind.

MR. ABRAMS: Well, that -- it is a different area, Your Honor -- it is. And it seems to us that that also should be privileged, but that the policy bases for some of these are somewhat different as I tried to set forth but they are.

CHIEF JUSTICE BURGER: I get a hint from some of the things - just between the lines of your argument, Mr. Abrams - that perhaps some misreading of the opinions has taken place. Is that a reasonable conjecture on my part?

MR. ABRAMS: Misreading of the opinions by -

CHIEF JUSTICE BURGER: Of the opinions of the Second Circuit. That some people may be misreading them.

MR. ABRAMS: I think that to the extent -- yes. Yes, I think that this is true. That it is certainly misread if it is read as an end to libel law, and it is misread if it is read as a total, absolute privilege in every case which could conceivably be characterized as, quote, editorial process, end quote. I don't think that's what it says, and I don't think that's what either Judge Kaufman or Judge Oakes have to say.

JUSTICE STEVENS: Mr. Abrams, before you sit down, when you started, you called my attention to page 53a of the appendix.

MR. ABRAMS: Yes.

JUSTICE STEVENS: Why did you do that?

MR. ABRAMS: I started to respond to a question you had asked Mr. Lubell.

JUSTICE STEVENS: I'd be interested in your response.

MR. ABRAMS: Starting about halfway down on page 53a there was an interview on the program with Bruce Potter, and that was, I think what Mr. Lubell was adverting to earlier.

And I described it briefly about how Mr. Potter said that in his presence Colonel Herbert had thrown a sandbag out and as well had made threatening gestures towards a prisoner of war.

Mr. Lubell's examples what that example, and what he said to you was there were four people on the other side.

What I wanted to say in response to that was, first as a matter of fact, the four people were not on the helicopter and had nothing to say as such about what happened there.

But what they did say where good things about Colonel Herbert in terms of his desire to care for, to be compassionate towards, prisoners of war.

And they were not on the program; although what was on the program was a statement of Mr. Wallace, saying in so many words, that there are people who they had interviewed - who CBS had interviewed - who took the position that Colonel Herbert was not capable of brutality.

The point that I was going to make was only this: it seems to me that that is a very, very dangerous line for libel law to go down, either substantively or procedurally, if we're talking about procedure today, and allowing questions about that because the nature of those questions is nothing less than, Why didn't you put the good material on?

JUSTICE STEVENS: Well, do you think that the question would be proper if it were asked this way: In light of what these other four persons had to say, did you have any doubt about the credibility of Mr. Potter?

MR. ABRAMS: We certainly wouldn't have objected to a question asking whether he had any doubt about the credibility of what Mr. Potter had to say on the program.

JUSTICE STEVENS: No, in -

MR. ABRAMS: I'm sorry?

JUSTICE STEVENS: -- your opinion, was Mr. Potter telling the truth?

MR. ABRAMS: In what he said on the program? We-

JUSTICE STEVENS: Well, supposing this wasn't on the program but it was just one that was slightly different - you'd say that could be not inquired into.

MR. ABRAMS: Then it seems to me that that is a further step away. It seems to me that journalists ought to be responsible for what they put on.

JUSTICE STEVENS: Why does one involve editorial process any more than other?

MR. ABRAMS: Because it seems to me that when you put it -- I think they both involve, conceptually, the editorial process. But when the process is broadcast, it's out.

JUSTICE STEVENS: The process wasn't broadcast - the product of the process.

MR. ABRAMS: When the segment at page 53 and 54a is on the program, it seems to me, even though that is a result of a process, the journalist has to respond to the question as to whether he believed it or not.

JUSTICE STEVENS: It's permissible to ask why he put Potter's statement on, but it is not permissible to ask, Why did you not put the other four statements on?

MR. ABRAMS: No, Your Honor, It is our position that it is permissible to ask, Did you believe the statement of Mr. Potter which you broadcast? And it is our position that the questions ought not to be allowed to the effect of, Why did you put it on -

JUSTICE STEVENS: But if there were a second statement by Mr. Potter - I just want to be sure I -

MR. ABRAMS: Yes.

JUSTICE STEVENS: A second statement by Mr. Potter was somewhat similar, but was not put on the air, it would not be permissible to say, Did you believe that statement by Mr. Potter?

MR. ABRAMS: Yes, Your Honor, that is our position that should not be permissible. We think that the product broadcast ought to be what is at issue, and that that can be inquired into, but not the process by which other things did not get put on. Thank you, Your Honor.

CHIEF JUSTICE BURGER: We have a few minutes left, Mr. Lubell.

MR. LUBELL: Very briefly, in regard to reference to the Sullivan decision itself, the reference to the looking at the files:

The issue that gets raised now by the Second Circuit decision is, suppose an editor, at the time that the work product was being worked up - the editorial process was going on - went to the files and looked at the files during that editorial process.

The question is: Could we ask a question about what was done during the editorial process? I think that question is a serious question in light of the decision of the Second Circuit which appears to say that we can't inquire as to what was done during that process.

In addition, in the Sullivan case itself, in reference to whether the media are the only group of people that are protected under the Sullivan principles, I'm sure, needless to say, the Court is aware that individuals were as well petitioners before this Court in Sullivan - the ministers themselves ? and they were afforded the protection of the Sullivan principles, as well as the New York Times.

So I think from Sullivan on, there has been at least an implied recognition that the Sullivan principles protect anyone who exercises his First Amendment rights, first in regard to public officials, and subsequently in the decisions of this Court in regard to public figures.

JUSTICE STEVENS: Mr. Lubell, let me ask you just one question. At the end of Judge Oakes' opinion - his last sentence - he concurs in the general answer of Chief Justice Kaufman to the certified question. Was there a single question certified to the court? That's on page 46a of the -

MR. LUBELL: Yes, yes.

JUSTICE STEVENS: There was a single question? Where is it in the papers that have been filed?

MR. LUBELL: I believe what he is referring to, Your Honor, is the certification memorandum opinion and order because - as to whether you can specify and focus upon a specific certified question - I don't find it.

JUSTICE STEVENS: The only certificate of the district judge would be under 1292(b) saying an interlocutory appeal is ordered. Is that what he's talking about?

MR. LUBELL: I believe so, and that is in the appendix to the petition -- the second memorandum opinion and order of Judge Haight, beginning at 90a, to the petition in which he certifies under 1292(b).

JUSTICE STEVENS: I see.

JUSTICE REHNQUIST: Well, at the very beginning of the court or appeal's opinion it says, "Appeal pursuant to 28 U.S.C. 1292(b)."

MR. LUBELL: Yes, yes. Yes, Your Honor. It came up on a certified - on a certification procedure.

And the certified question involved the same question that Judge Haight said was a question of first impression, which had to do with the state of mind, or whether there was a privilege for the editorial process of the press.

Further, in regard to the question that the Chief Justice pose to Mr. Abrams as to criminal cases where defendant does take the stand - or any civil case where defendant does take the stand - and the issue of state of mind is an issue, whether it would be because malice or intent require, obviously the defendant must answer those questions unless a testimonial privilege against self-incrimination or one of the recognized testimonial privileges is asserted.

In this case, in fact, the defendant, in a pre-trial sense, took the stand; he submitted himself to a deposition.

And questions were asked of him about his state of mind within concrete, factual contexts only because, by the decisions of this Court, the subjective state of mind has become the critical Sullivan issue.

In regard to the - again, back to the question of what question appeared to be allowable, or would not appear to be allowable, I would not that the defendants have objected at the deposition stage, and have contended throughout the appeals here, that questions as to the defendants' view of the credibility and veracity of person who appeared on the program, as well as persons who did not appear on the program, were not proper - so that it's not limited to somebody who did not appear on the program.

I see both my lights are on. And in conclusion, we contend that by precluding a plaintiff from obtaining any direct evidence of state of mind in a Sullivan case, or obtaining any evidence of what happened in the editorial process - whichever way you interpret the two aspects of the court of appeals decision - completely unbalances the accommodation struck by this Court in Sullivan and its progeny. Thank you.

CHIEF JUSTICE BURGER: Than you, gentlemen. The case is submitted.