In Herbert v. Lando et al., 1978, the U.S. Supreme Court ruled that a plaintiff in a defamation case could inquire into the editorial processes of those being sued for libel. The case involved retired Army officer Anthony Herbert who claimed he was defamed by Barry Lando and CBS during an episode of "60 Minutes". He alleged that they knowingly or recklessly aired false information about him, damaging his reputation. The defendants argued their First Amendment rights protected them from having to disclose their thought processes behind creating the story but were overruled by lower courts which allowed Herbert access to this information during discovery phase of trial proceedings. On appeal, the Supreme Court upheld these rulings stating there is no constitutional privilege protecting journalists from inquiry into their editorial process when facing potential liability for defamation.

In the dissenting opinion for Herbert v. Lando, Justice Brennan argued that the majority's decision placed an undue burden on plaintiffs in defamation cases. He contended that requiring a plaintiff to prove actual malice by demonstrating not only that a statement was false but also that it was made with knowledge of its falsity or reckless disregard for the truth would be nearly impossible in many instances. This standard, he believed, could discourage legitimate defamation suits and unduly protect media defendants at the expense of individuals' reputations. Furthermore, he expressed concern about invading editorial processes and chilling press freedom through intrusive discovery into journalists’ thoughts and editing decisions - something which might occur under this new requirement set by the majority ruling.