Iseman vs. The New York Times

We haven’t commented yet on the defamation action that Vicki Iseman has brought against the New York Times. Iseman, as you probably recall, is the lobbyist who was accused by the Times of having an improper romantic relationship with John McCain. In an apparent effort to derail McCain’s campaign, the Times printed its story, on the front page above the fold, even though the paper had not been able to gather the facts to verify it. The decision to publish was controversial within the Times, and was later sharply criticized by the paper’s own Public Editor, Clark Hoyt, but the editors’ desire to damage the Republican Presidential candidate apparently won out.

Iseman’s complaint, which you can read here, makes interesting reading. She presents herself in a highly sympathetic light and says the claim that her professional relationship with John McCain was romantic or in any way improper was “entirely false.” She describes herself as “collateral damage” in the Times’ effort to scoop the competition and to harm McCain.

Many people wonder whether Iseman has much chance, given the high barrier posed by American defamation law. I doubt that she does, even assuming that everything she says is true. (I don’t know whether her allegations are true, but they are certainly plausible.) Iseman alleges in her complaint that she is a private figure and thus can recover if the Times negligently printed a false story about her. Her problem, however, is that the story wasn’t just about her, it was about McCain, the ultimate public figure–a Republican Presidential candidate. The courts have never articulated it this way, but there may well be, in effect, a constitutional right to lie about a President or Presidential candidate.

Assuming that Iseman will be required to meet the constitutional “actual malice” standard rather than the common law negligence standard, she can win only if she proves that the Times knew the story was false, or thought it was likely false, and published it anyway. But people don’t normally put such sentiments in writing. Unless Bill Keller was dumb enough to write an email saying something like, “The Iseman story probably isn’t true, but let’s run with it anyway; otherwise, the election will be over and it will be too late to help Obama,” she’ll most likely lose.

For better or worse, “collateral damage” is a pretty fair characterization of how our law regards people like Vicki Iseman who, through no fault of their own, are caught up in a political controversy. The more genteel phrase is “limited purpose public figure.”

Scott is more of an expert on defamation law than I am; Scott, please weigh in if you think my take on the case is off-base.

SCOTT adds: I am not an expert in defamation law, but I agree with John’s assessment. I think the rule of thumb under the relevant Supreme Court cases that constitutionalize the common law of defamation is that it is extremely difficult for an individual who can be characterized as a public figure (even if only for a limited purpose related to the issues raised in the story) to prevail on a defamation claim against journalists or newspapers. The Wall Street Journal posted a fair discussion of the “public figure” issue implicit in the Iseman case yesterday. The characterization of Iseman as a public or private figure is the key to her lawsuit. If Iseman is deemed a limited-purpose public figure in the context of the case, my guess is that the most she can reasonably hope to do is gather enough information in discovery to cause embarrassment or shame to the defendants.

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