{"id":53731,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/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.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"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","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/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.html","title":{"rendered":"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"},"content":{"rendered":"\n<div class=\"wp-container-core-columns-is-layout-9d6595d7  fl-block-columns fl-sectionWithSidebar fl-container fl-flex fl-flex-wrap fl-gap30\">\n    \n    <div class=\"fl-page-articles   fl-block-column fl-section-main fl-section-main-full-width\">\n        <div class=\"yui-g\" id=\"leftcol-module\">\n      <!-- Right Line of Links Section -->\n      <!-- BEGIN PICTURE INSERTION -->\n      <!-- BEGIN TITLE AND AUTHOR INSERTION -->\n      <table>\n        <tr>\n\n          <td width=\"100\" rowspan=\"3\" class=\"wiauthor\"><a href=\"\/legal-commentary\/julie-hilden-archive\"><img decoding=\"async\" src=\"https://supreme.findlaw.com/static/f/images\/writ\/julie.hilden.jpg\" border=\"0\"><\/a><\/td>\n          <td class=\"wititle\"><h1><em>The New York  Times<\/em> Is Sued for Insinuating that John McCain Recently Had a Mistress: How the Defamation Suit Is Likely to Play Out, and  Why the <em>Times<\/em> Should Settle High<\/h1><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"wiauthor\"><a href=\"\/legal-commentary\/julie-hilden-archive\" class=\"graybold\"><h2>By JULIE HILDEN <\/h2><br><\/a><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"widate\">Monday, Jan. 5, 2009<\/td>\n\n        <\/tr>\n      <\/table>\n\n<span class=\"smalltext\">\n\n\n<p>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 <em>Times<\/em> had defamed her in <a href=\"http:\/\/www.nytimes.com\/2008\/02\/21\/us\/politics\/21mccain.html?_r=1&amp;scp=1&amp;sq=iseman&amp;st=cse\" target=\"_blank\" rel=\"noopener\">a  February 2008 article<\/a>.  Iseman&#8217;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). <\/p>\n<p>Coyly titled &#8220;For McCain, Self-Confidence on Ethics  Poses Its Own Risk,&#8221; the article did not say in so many words that Iseman was  McCain&#8217;s mistress. Instead, it said that  concerned McCain advisers had tried to separate the two, fearing that others  would <em>think<\/em> she was his mistress.<\/p>\n\n<div id=\"writthreetwenty\">\n          <script language=\"JavaScript\" type=\"text\/javascript\">dart_call(\"300x250\", \"ptile=2\", 0); <\/script>\n  \n  <\/div>\n  \n<p>However, <a href=\"http:\/\/online.wsj.com\/public\/resources\/documents\/iseman.pdf\" target=\"_blank\" rel=\"noopener\">Iseman&#8217;s complaint<\/a> references substantial evidence that journalists and the public widely  interpreted the article as claiming an affair, noting that even the <em>Times<\/em>&#8216;s  own public editor mentioned that its readers had interpreted the article this  way. The public editor&#8217;s admission &#8212;  and his harsh words about the story, more generally &#8212; are likely to be  disastrous for any defense of the suit.  Indeed, they were arguably a form of defamation seppuku. <\/p>\n\n<p>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. <\/p>\n<p>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 \u2013 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 <em>Times<\/em> did not do enough to protect itself from suit. <\/p>\n<p>Notably, but unsurprisingly, McCain himself did not  sue. In <a href=\"\/legal-commentary\/if-the-president-is-libeled-can-he-sue-should-he.html\">a prior column<\/a>,  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&#8217;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 \u2013 and  who are more likely to be found to be private figures for defamation purposes  &#8212; 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. <\/p>\n<p><strong>The <em>Times<\/em>&#8216;s  Reportage of Iseman and McCain&#8217;s Denials<\/strong><\/p>\n<p>The article did contain Iseman&#8217;s denials \u2013 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\u2013 assuming the original article  mirrored <a href=\"http:\/\/www.nytimes.com\/2008\/02\/21\/us\/politics\/21mccain.html?_r=1&amp;scp=1&amp;sq=iseman&amp;st=cse\" rel=\"noopener\">the  online version<\/a> \u2013 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. <\/p>\n<p>McCain&#8217;s denials \u2013 also at the end of the piece \u2013 are  included, too. Yet as I will explain,  the article remains vulnerable to a successful defamation suit and a potential  high-dollar verdict &#8212; 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&#8217;s impression (important as a practical  matter, but not legally relevant) as to whether the publication acted  fairly. <\/p>\n<p><strong>Issues in the Case: The &#8220;Statement&#8221; Requirement, and the Public  Figure\/Private Figure Distinction<\/strong><\/p>\n<p>There are two key ways the <em>Times <\/em>could  try to win this case. One would be to  deny that a &#8220;statement&#8221; \u2013 an element of every defamation claim \u2013 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&#8217;s suit), which the <em>Times<\/em> 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. <\/p>\n<p>Importantly, the fact that the <em>Times<\/em> was reporting what McCain advisers (as confidential sources) said is not a  defense: The fact that one is repeating  someone else&#8217;s defamatory statement does not defeat a claim for defamation; it  only goes to how much of the plaintiff&#8217;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&#8217;t  be ignored in court. (Also, to the  extent that reliance on the McCain advisers goes to the <em>Times<\/em>&#8216;s  and its reporters&#8217; states of mind, the <em>Times<\/em> will have a problem  proving that without unmasking its confidential sources.) <\/p>\n<p>The <em>Times<\/em> could also contend  that Iseman is a public figure. If a  judge so ruled, the demanding &#8220;actual malice&#8221; standard would apply, requiring  the <em>Times<\/em> 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.<\/p>\n<p>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. <\/p>\n<p>Did Iseman inject herself into the controversy about  lobbyists&#8217; 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&#8217;s clear that they already have access to the First-Amendment forum in which they need to defend  themselves; after all they&#8217;ve used it before. <\/p>\n<p>But the only way Iseman could be deemed to have injected  herself into this controversy is through her friendship with McCain \u2013 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&#8217;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. <\/p>\n<p><strong>The Confidential Source Issue<\/strong><\/p>\n<p>As if the <em>Times<\/em> did not have enough  trouble on its hands, its article is also rife with confidential sources \u2013 the  kind of sources that some reporters, such as former <em>Times<\/em> 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. <\/p>\n<p>Will the suit get to that point? Before the issue is directly reached, the  court will very likely send Iseman&#8217;s lawyers off to depose a large set of  McCain advisers, to try to figure out who the <em>Times<\/em>&#8216;s  campaign sources were. This kind of  &#8220;exhaustion&#8221; requirement is meant to protect First Amendment values, but it  doesn&#8217;t always work: If no one cops to  being a source (or if not all the multiple confidential sources the <em>Times<\/em> 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. <\/p>\n<p>If I had to guess, I would guess that perjury from the  McCain camp at depositions may be likely \u2013 assuming McCain campaign sources do,  in fact, exist. Which source will want  to confess selling out the McCain campaign to the liberal <em>Times<\/em>,  and doing so in order to out an affair that even the sources weren&#8217;t sure  existed? <\/p>\n<p>Did someone in the campaign believe a <em>Times<\/em> piece would scare the candidate away from going further down the road to a  possible affair? If so, that source  verged perilously close \u2013 as an ethical, not a legal, matter &#8212; to  election-tampering, seeking to exert a manipulative form of control over a man  who was one of two contenders for the Presidency. <\/p>\n<p><strong>What Should the <em>New  York Times<\/em>&#8216;s Settlement Offer Be? <\/strong><\/p>\n<p>The <em>New York Times<\/em> 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&#8217;t  help that the <em>Times<\/em> already had to retract  part of its story \u2013 one that overstated McCain&#8217;s official reprimands over the  Keating Five scandal \u2013 and faced a blast of criticism from its own public  editor. Before settling, the <em>Times<\/em> will doubtless will file a motion to dismiss (probably based predominantly on  the &#8220;statement&#8221; 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 <em>Times<\/em> has some chance of  winning on the &#8220;no statement of fact&#8221; argument, but little chance of winning on  summary judgment without either outing confidential sources or having them  voluntarily emerge, which seems incredibly unlikely. <\/p>\n<p>Iseman seeks $27 million.  She won&#8217;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 \u2013 depending  on how much it hews to party lines \u2013 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 <em>Times<\/em> to offer $1 million  now and attempt to be done with this. <\/p>\n<p>Jurors are likely to see the bottom line here: <em>The New York Times<\/em> did not have the &#8220;McCain mistress&#8221; story it wanted to run \u2013 so it figured out a  way to run it anyway. To see how ugly  the story is, imagine if the <em>Times<\/em> 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&#8217;s role will be commensurately  limited. When the <em>Times<\/em> 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&#8217;s plight.<\/p>\n\n<p><\/p>\n<p class=\"authorfoot\">\n\n<!-- BEGIN AUTHORS FOOTNOTE -->\n<a name=\"bio\"><\/a><em>Julie Hilden, who graduated from Yale Law School,  practiced First Amendment law at the D.C. law firm of Williams &amp; Connolly  from 1996-99 and has been writing about First Amendment issues for a decade.  Hilden is also a novelist. In reviewing Hilden&#8217;s novel, <i>3<\/i>, Kirkus Reviews praised Hilden&#8217;s &#8220;rather uncanny abilities,&#8221; and Counterpunch called it &#8220;a must read&#8230;. a work of art.&#8221; Hilden&#8217;s  website, <a href=\"http:\/\/www.juliehilden.com\/\" rel=\"noopener\">www.juliehilden.com<\/a>,  includes free MP3 and text downloads of the novel&#8217;s first chapter.<\/em>\n<\/p><p class=\"authorfoot\"><br>\n    <br>\n  \n<\/p>\n\n\n\n\n    <\/span><\/div><div class=\"was-this-helpful\">\n    <div\n            class=\"was-this-helpful__question-container\"\n            aria-labelledby=\"was-this-helpful__question\"\n            role=\"group\"\n    >\n        <span\n                id=\"was-this-helpful__question\"\n                class=\"was-this-helpful__question fl-text-lg-bold\"\n        >Was this helpful?<\/span>\n        <button\n                class=\"was-this-helpful__button fl-text-sm\"\n                aria-label=\"Yes\"\n                value=\"yes\"\n        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class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--complicated\"\n                        >Too complicated \/ too many steps<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--dated\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"negative-feedback\"\n                                value=\"Out of date\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--dated\"\n                        >Out of 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