The New York Times Is Sued for Insinuating that John McCain Recently Had a Mistress: How the Defamation Suit Is Likely to Play Out, and Why the Times Should Settle High

By JULIE HILDEN


Monday, Jan. 5, 2009

On December 30, 2008, lobbyist Vicki Iseman filed suit against The New York Times in the U.S. District Court for the Eastern District of Virginia, alleging that the Times had defamed her in a February 2008 article. Iseman's complaint notes that she lives in Virginia; that makes the state a legitimate forum for a defamation case, for Virginia is where her reputation is deemed to reside (though, of course, her professional D.C. reputation counts as well).

Coyly titled "For McCain, Self-Confidence on Ethics Poses Its Own Risk," the article did not say in so many words that Iseman was McCain's mistress. Instead, it said that concerned McCain advisers had tried to separate the two, fearing that others would think she was his mistress.

However, Iseman's complaint references substantial evidence that journalists and the public widely interpreted the article as claiming an affair, noting that even the Times's own public editor mentioned that its readers had interpreted the article this way. The public editor's admission -- and his harsh words about the story, more generally -- are likely to be disastrous for any defense of the suit. Indeed, they were arguably a form of defamation seppuku.

The article also chronicled past ethical issues that McCain had encountered, and implicitly suggested that it was legitimate for the paper to insinuate an affair because McCain had held himself up as a standardbearer for ethical conduct.

Phrased in these defensive ways, the article read as if it had been carefully legally vetted and dialed back from some prior, more aggressive version – or as if a worried editor or writer had phrased it carefully from the beginning, for fear of incurring the risk of the defamation suit. Now, that risk has come to pass. But in my view, the Times did not do enough to protect itself from suit.

Notably, but unsurprisingly, McCain himself did not sue. In a prior column, I explained why presidents (and here, similarly, presidential candidates) generally do not sue for defamation, and would not succeed if they did. But interestingly, Iseman's suit shows a way for public officials to end-run the problems they might have with suing, by suggesting that others who are targeted by an allegedly defamatory story – and who are more likely to be found to be private figures for defamation purposes -- should sue instead. I have no idea if that happened here, but the timing would make sense; Iseman held off on suing until well after the election.

The Times's Reportage of Iseman and McCain's Denials

The article did contain Iseman's denials – but they are near its very end, and they seem strangely partial, as if she had not been made privy to the full claims of the article. Far more prominent than the denials– assuming the original article mirrored the online version – was a photo of Iseman looking glamorous in an evening dress. Jurors will not miss the import of the photo, nor will they miss the slur the piece sought to communicate about Iseman.

McCain's denials – also at the end of the piece – are included, too. Yet as I will explain, the article remains vulnerable to a successful defamation suit and a potential high-dollar verdict -- especially since its key sources supporting the insinuations of a romantic relationship between McCain and Iseman are all confidential sources. Including denials does not insulate a publication from defamation liability; it simply goes to its state of mind, and to the jury's impression (important as a practical matter, but not legally relevant) as to whether the publication acted fairly.

Issues in the Case: The "Statement" Requirement, and the Public Figure/Private Figure Distinction

There are two key ways the Times could try to win this case. One would be to deny that a "statement" – an element of every defamation claim – was made. This strategy might possibly work with respect to the suggestion that an affair occurred, precisely because the article did not say that in so many words. However, it is less likely to work with respect to the broader suggestion (also part of the basis of Iseman's suit), which the Times came closer to saying straight-out, that Iseman had an improper (even if not sexual) relationship with McCain, using her friendship with him to gain political favors.

Importantly, the fact that the Times was reporting what McCain advisers (as confidential sources) said is not a defense: The fact that one is repeating someone else's defamatory statement does not defeat a claim for defamation; it only goes to how much of the plaintiff's damages are traced to the original statement, and how much to the repetition. This principle is widely ignored in practice, especially on the Internet, but won't be ignored in court. (Also, to the extent that reliance on the McCain advisers goes to the Times's and its reporters' states of mind, the Times will have a problem proving that without unmasking its confidential sources.)

The Times could also contend that Iseman is a public figure. If a judge so ruled, the demanding "actual malice" standard would apply, requiring the Times to have had knowledge the story was false, or to have exhibited reckless disregard as to its truth or falsity. By contrast, if Iseman is deemed a private figure, she must only prove negligence.

Plainly, it would be hard to argue that, as a lobbyist, Iseman was a public figure in the same sense McCain was, and is. Yet defamation law recognizes a category of plaintiffs deemed limited-purpose public figures, who inject themselves into a public controversy.

Did Iseman inject herself into the controversy about lobbyists' influence? Most limited-purpose public figures gain their status by what they say: They join a debate. One reason courts deem them public figures, and afford them less defamation protection, is that even when they bring suit, it's clear that they already have access to the First-Amendment forum in which they need to defend themselves; after all they've used it before.

But the only way Iseman could be deemed to have injected herself into this controversy is through her friendship with McCain – that is, by what she did by spending time with him, not by anything she said to the press. Can a plaintiff inject herself into a debate with actions, not words? It's not completely clear from the law, but the justification that the plaintiff plainly has access to a forum (other than the court itself) because she has already used it, is not present here.

The Confidential Source Issue

As if the Times did not have enough trouble on its hands, its article is also rife with confidential sources – the kind of sources that some reporters, such as former Times reporter Judith Miller, will go to jail rather than name. There were four bylines on the Iseman story; all four reporters are named defendants in her complaint.

Will the suit get to that point? Before the issue is directly reached, the court will very likely send Iseman's lawyers off to depose a large set of McCain advisers, to try to figure out who the Times's campaign sources were. This kind of "exhaustion" requirement is meant to protect First Amendment values, but it doesn't always work: If no one cops to being a source (or if not all the multiple confidential sources the Times suggests it consulted are outed), then the reporters at issue may plausibly face contempt citations, as Miller did, and be sent to jail until they talk.

If I had to guess, I would guess that perjury from the McCain camp at depositions may be likely – assuming McCain campaign sources do, in fact, exist. Which source will want to confess selling out the McCain campaign to the liberal Times, and doing so in order to out an affair that even the sources weren't sure existed?

Did someone in the campaign believe a Times piece would scare the candidate away from going further down the road to a possible affair? If so, that source verged perilously close – as an ethical, not a legal, matter -- to election-tampering, seeking to exert a manipulative form of control over a man who was one of two contenders for the Presidency.

What Should the New York Times's Settlement Offer Be?

The New York Times would be wise to settle the suit for a high amount, especially since the Eastern District of Virginia boasts some conservative judges and draws quite a few conservative jurors. And conservative jurors will likely see the article as a liberal hit piece. If so, even as a strong liberal (and enthusiastic Obama supporter), I would not disagree with them. It won't help that the Times already had to retract part of its story – one that overstated McCain's official reprimands over the Keating Five scandal – and faced a blast of criticism from its own public editor. Before settling, the Times will doubtless will file a motion to dismiss (probably based predominantly on the "statement" issue), and will ideally want to file a motion for summary judgment (but getting there will mean it must somehow get through the confidential-source issues cited above). My sense is that the Times has some chance of winning on the "no statement of fact" argument, but little chance of winning on summary judgment without either outing confidential sources or having them voluntarily emerge, which seems incredibly unlikely.

Iseman seeks $27 million. She won't get that, but she might get $5 or even $10 million from a jury. The district judge might reduce that figure, but the conservative U.S. Court of Appeals for the Fourth Circuit is likely to be the ultimate arbiter here (unless the Supreme Court takes an interest in better defining what it means to be a limited-purpose public figure). Thus, it is questionable whether, on appeal, the verdict would be reduced to a more reasonable $1-$3 million, as I would predict would surely be the case in a more liberal Circuit. The Fourth Circuit – depending on how much it hews to party lines – might let a record-high verdict stand to send a message, or if the panel proves to include pro-First Amendment conservatives, it might reduce the verdict. There is an argument for the Times to offer $1 million now and attempt to be done with this.

Jurors are likely to see the bottom line here: The New York Times did not have the "McCain mistress" story it wanted to run – so it figured out a way to run it anyway. To see how ugly the story is, imagine if the Times had instead reported that unnamed Obama advisers were concerned that Obama was spending too much time with adviser Valerie Jarrett in private. Granted, Jarrett is a formal adviser; Iseman is not, and as a lobbyist, should not act as an informal one. But who is to say Iseman did so? Underlying the story is the suggestion that neither friendship nor advice, but only sex, can pass between political men and attractive women when they meet in private. As long as such stereotypes persist, women's role will be commensurately limited. When the Times was willing to stretch so little, so far, for such an unworthy purpose, even strong First Amendment aficionados may find it difficult to feel sorry for the paper's plight.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.



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