dissenting.
It seems to me that both the Court of Appeals and this Court have addressed a question that is not presented by the case before us. As I understand the constitutional rule of New York Times Co. v. Sullivan, 376 U. S. 254, inquiry into' the broad “editorial process” is simply not relevant in a libel suit brought by a public figure against a publisher. And if such an inquiry is not relevant, it is not permissible. Fed. Rule Civ. Proc. 26 (b).
Although I joined the Court’s opinion in New York Times, I have come greatly to regret the use in that opinion of the phrase “actual malice.” For the fact of the matter is that “malice” as used in the New York Times opinion simply does not mean malice as that word is commonly understood. In common understanding, malice means ill will or hostility,1 and the most relevant question in determining whether a person’s action was motivated by actual malice is to ask “why.” As part of the constitutional standard enunciated in the New York Times case, however, “actual malice” has nothing to do with hostility or ill will, and the question “why” is totally irrelevant.
Under the constitutional restrictions imposed by New York Times and its progeny, a plaintiff who is a public official or public figure can recover from a publisher for a defamatory statement upon convincingly clear proof of the following elements:
(1) the statement was published by the defendant,
(2) the statement defamed the plaintiff,
(3) the defamation was untrue, and
(4) the defendant knew the defamatory statement was untrue, or published it in reckless disregard of its truth or *200falsity. Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (plurality opinion); Ocala Star-Banner Co. v. Damron, 401 U. S. 295; Time, Inc. v. Pape, 401 U. S. 279; Monitor Patriot Co. v. Roy, 401 U. S. 265; Greenbelt Coop. Pub. Assn. v. Bresler, 398 U. S. 6; St. Amant v. Thompson, 390 U. S. 727; Beckley Newspapers Corp. v. Hanks, 389 U. S. 81; Curtis Publishing Co. v. Butts, 388 U. S. 130; Rosenblatt v. Baer, 383 U. S. 75; New York Times Co. v. Sullivan, supra. Cf. Time, Inc. v. Firestone, 424 U. S. 448; Gertz v. Robert Welch, Inc., 418 U. S. 323; Letter Carriers v. Austin, 418 U. S. 264; Time, Inc. v. Hill, 385 U. S. 374; Linn v. Plant Guard Workers, 383 U. S. 53.
The gravamen of such a lawsuit thus concerns that which was in fact published. What was not published has nothing to do with the case. And liability ultimately depends upon the publisher’s state of knowledge of the falsity of what he published, not at all upon his motivation in publishing it — ■ not at all, in other words, upon actual malice as those words are ordinarily understood.
This is not the first time that judges and lawyers have been led astray by the phrase “actual malice” in the New York Times opinion. In Greenbelt Coop. Pub. Assn. v. Bresler, supra, another defamation suit brought by a public figure against a publisher, the trial judge instructed the jury that the plaintiff could recover if the defendant’s publication had been made with malice, and that malice means “spite, hostility, or deliberate intention to harm.” In reversing the judgment for the plaintiff, we said that this jury instruction constituted “error of constitutional magnitude.” 398 U. S., at 10. Cf. Letter Carriers v. Austin, supra, at 281; Rosenblatt v. Baer, supra, at 83-84.
In the present case, of course, neither the Court of Appeals nor this Court has overtly committed the egregious error manifested in Bresler. Both courts have carefully enunciated the correct New York Times test. See 568 F. 2d 974, 985 *201(opinion of Oakes, J.), and ante, at 156-157. But each has then followed a false trail, explainable only by an unstated misapprehension of the meaning of New York Times “actual malice,” to arrive at the issue of “editorial process” privilege. This misapprehension is reflected by numerous phrases in the prevailing Court of Appeals opinions: “a journalist’s exercise of editorial control and judgment,” “how a journalist formulated his judgments,” “the editorial selection process of the press,” “the heart of the editorial process,” “reasons for the inclusion or exclusion of certain material.” See 568 P. 2d 974, passim. Similar misapprehension is reflected in this Court’s opinion by such phrases as “improper motive,” “intent or purpose with which the publication was made,” “ill will,” and by lengthy footnote discussion about the spite or hostility required to constitute malice at common law. See ante, at 162 and 164.
Once our correct bearings are taken, however, and it is firmly recognized that a publisher’s motivation in a case such as this is irrelevant, there is clearly no occasion for inquiry into the editorial process as conceptualized in this case. I shall not burden this opinion with a list of the 84 discovery questions at issue.2 Suffice it to say that few if any of them *202seem to me to come within even the most liberal construction of Fed. Rule Civ. Proc. 26 (b).3
By the time this case went to the Court of Appeals, the deposition of the respondent Lando alone had lasted intermittently for over a year and had filled 2,903 pages of transcript, with an additional 240 exhibits. The plaintiff had, in Chief Judge Kaufman’s words, “already discovered what Lando knew, saw, said and wrote during his investigation.” 568 F. 2d, at 984. That, it seems to me, was already more than sufficient.
In a system of federal procedure whose prime goal is “the just, speedy, and inexpensive determination of every action,” 4 time-consuming and expensive pretrial discovery is burdensome enough, even when within the arguable bounds of Rule 26 (b). But totally irrelevant pretrial discovery is intolerable.
Like the Court of Appeals, I would remand this case to the District Court, but with directions to measure each of the proposed questions strictly against the constitutional criteria of New York Times and its progeny. Only then can it be determined whether invasion of the editorial process is truly threatened.
See Webster’s New International Dictionary 1367 (2d ed. 1961).
The following are some random samples:
“Did you ever come to a conclusion that it was unnecessary to talk to Capt. Laurence Potter prior to the presentation of the program on February 4th?”
“Did you come to the conclusion that you did not want to have a filmed interview with Sgt. Carmon for the program?”
“When you prepared the final draft of the program to be aired, did you form any conclusion as to whether one of the matters presented by that program was Col. Herbert’s view of the treatment of the Vietnamese?” “Do you have any recollection of discussing with anybody at CBS whether that sequence should be excluded from the program as broadcast?”
“Prior to the publication of the Atlantic Monthly article, Mr. Lando, did you discuss that article or the preparation of that article with any representative of CBS?”
Rule 26 (b) (1) provides in relevant part:
“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 admissible evidence.”
Fed. Rule Civ. Proc. 1.