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Herbert (P) was a retired and distinguished army officer who brought allegations that his superior officers covered up reports of atrocities and wartime crimes during Vietnam. Lando (D) broadcast a report on P on CBS narrated by Mike Wallace. D later published an article in the Atlantic Monthly. P sued D for defamation in that the report called him a liar and that he falsely accused his superiors to explain his relief from command. P conceded that he was a public figure. Malice was the burden of proof. D was deposed and refused to answer certain state of mind questions. The district court ordered D to answer and rejected a claim of constitutional privilege. D appealed.

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