Iseman v. NYT

Not to pick on the NYT, but Vicki Iseman’s defamation suit against the Grey Lady (HT Law Blog) makes fascinating reading.

This is no fly-by hit job – it’s a careful and persuasive piece of work. The complaint is co-authored by W & L Dean Rodney Smolla, former Richmond dean, expert on the press, whose books include Suing the Press (Oxford 1986).

The complaint alleges that the Times story, though not containing direct allegations of an Iseman-McCain affair, was in fact defamatory because of its intended and conveyed meaning; that Iseman is a private figure, not having been outed prior to the story in question; and that the NYT acted not only with negligence (the Gertz standard for private figures), but actual malice.

The private figure issue might get this case some legal attention. Iseman may not have assumed the risk of attention under Gertz, but she did have media access.  I'm not sure where the current private figure case law stands.

With respect to actual malice, the complaint notes that the Times had been working on the story for a long time, was widely known to have been doing so, had not gotten evidence to back its allegations, feared that its failed pursuit of the story would be the subject of a New Republic story, and buckled to the pressure by publishing an innuendo-laden hatchet job.

It’s been a bunch of years since I’ve taught defamation, so I won’t try to go deep on this right now. But I do have a few quick thoughts.

• The complaint pretty strongly supports plaintiff’s interpretation of the story. So did they (Iseman and McCain) or didn't they? If they didn't, did the Times have a credible enough source to go with the story? 
• If the plaintiff’s side holds up, the only difference between the Times and the average political blogger is that the Times’s reputation protected its story from the skepticism it deserved. A blog post would have been ignored or picked to shreds in the blogosphere.
• I wonder if the Times would have killed this story in its salad days, before current death throes, when it really did deem some news not fit to print.
• Would it have killed an equivalent story about Obama? 
• Though the complaint alleges only $27 million in damages, probably insured, I should think that the risk this suit poses to the reputation of the Times and the reporter-defendants is incalculable.

Comments

[FJP]

Call me a skeptic, but the complaint doesn't convince me. Overall I read the story as addressing the APPEARANCE of impropriety, even if unintended by either party, in the dealings between Senator McCain and the plaintiff. The only part that gives me a bit of pause is the passage discussed at paragraphs 23-24, wherein the NYT indicates McCain acknowledged some inappropriate behavior. But even that is reasonably understood as being an acknowledgement that he did things that created an appearance of impropriety, if you have been reading the story all along to be about appearances of impropriety.

I am concerned that is this story is found to be libelous, that it will have a strong chilling effect on the ability to report about precisely that, i.e. the APPEARANCE of impropriety in matters of public importance, which a senator's dealings with lobbyists surely are. Also, the complaint seems to advocate for a sort of blogger's veto; in that if enough Internet commenters interpret the story salaciously, as asserting an affair occurred, then it is defamatory. If that is the standard, there will always be enough bloggers for any plaintiff to cite.

[Ismone]

I'm with the first commenter. In addition, as a lobbyist, the propriety of her actions is a matter of public concern. So even if she is not a public figure of any stripe, she still has to prove actual malice.

I think the complaint, at times, misreads the article. Consider the following two examples.

1) The article stated that "Mr. McCain acknowledged behaving inappropriately and pledged to keep his distance from Ms. Iseman." p. 15, para. 23 (italics omitted). According to the complaint, this means that Mr. McCain acknowledged behaving inappropriately with Ms. Iseman (emphasis on with) and that this statement suggests a romantic relationship. First, the sentence refers only to Mr. McCain's behavior. It could be his behavior toward Ms. Iseman, or with regard to Ms. Iseman. Regarding the suggestion of a romantic relationship, I really don't see it in that sentence. At all. The way to deal with any kind of improper relationship, or one that created an appearance of impropriety, as suggested by FJP above, is to avoid the other person. I won't even touch its batty interpretation of the word "pledge." For pity's sake, they might as well say that NY Times was comparing McCain to an alcoholic. (They take pledges too).

2) Same paragraph--the discussion of "details that were corroborated by others." The complaint takes this to mean salacious details. I take this to mean details about Mr. McCain's interactions with Ms. Iseman, and what the staff said and did about it. I think the complaint suffers from sexual repression and has a dirty mind, much like many of the commentators who jumped on the oooh! sex! angle (Buchanan? Tucker Carlson? O'Reilly? C'mon, these guys can make any story about a woman into a story about her attractiveness/who she's banging.)

That's all she wrote, for now.

[Ben Lester]

I'm with the first two commenters. Dean Smolla has signed his name to a painfully rough first draft. The federal pleading standards, which were opened up 70 years ago to allow the poor and half-literate to assert their legal rights, will permit a complaint with no citations, at least half a dozen errors in punctuation, and three misspelled names (Pat "Buchannan," Punch "Shulzberger," "Garry" Hart). But it's not a piece of legal writing that makes a good impression. It even contains its own refutation:

"Ms. Iseman's relationship with Senator McCain was not different in kind from the cordial yet professional relationship that hundreds of lobbyists have with hundreds of members of Congress."

In other words, John McCain is like everybody else in Congress. Not newsworthy -- unless, of course, he had said the exact opposite:

"Everybody says that they’re against the special interests. I’m the only one the special interests don’t give any money to."

So the Times can cite Dean Smolla's complaint for the proposition that they were just calling Vicki Iseman a lobbyist, and John McCain a liar.