How tough is it to prove malice?

Matthew Hoy
By Matthew Hoy on December 30, 2008

Washington lobbyist Vicki Iseman filed suit today against The New York Times over the February 21 hit piece that alleged she was carrying on an extramarital affair with GOP presidential candidate John McCain.

The 36-page complaint charges that the story implies an “unprofessional relationship” between Iseman and McCain.

Both Iseman and McCain denied any improper relationship. However, the public viewed the story as being about an affair, according to the suit, which cites the post-publication remarks of 10 different commentators across the political spectrum. In each case, their comments about the story assumed it was about an alleged affair, the lawyers noted.

The Times’ own public editor, Clark Hoyt, published what Allen called a “blistering attack” on the Times’ decision to publish the original Iseman article.


“In their attack on Senator McCain, the [defendants] were willing to sacrifice Ms. Iseman as acceptable collateral damage, recklessly indifferent to the avalanche of scorn, derision and ridicule Ms. Iseman would suffer,” the suit charges.

Hoyt was indeed critical of the article at the time.

But in the absence of a smoking gun, I asked Keller why he decided to run what he had.

“If the point of the story was to allege that McCain had an affair with a lobbyist, we’d have owed readers more compelling evidence than the conviction of senior staff members,” he replied. “But that was not the point of the story. The point of the story was that he behaved in such a way that his close aides felt the relationship constituted reckless behavior and feared it would ruin his career.”

I think that ignores the scarlet elephant in the room. A newspaper cannot begin a story about the all-but-certain Republican presidential nominee with the suggestion of an extramarital affair with an attractive lobbyist 31 years his junior and expect readers to focus on anything other than what most of them did. And if a newspaper is going to suggest an improper sexual affair, whether editors think that is the central point or not, it owes readers more proof than The Times was able to provide.

Unsurprisingly, the Times is standing behind its reporting.

I am not a lawyer, but with the journalism degree comes some practical, layman's knowledge about what can get you sued. A major part of that is addressed in the AP report on the suit.

Keith Werhan, a constitutional law professor at Tulane University, said key to Iseman's case will be how the court defines her — as a public figure or a private figure. Public figures have to meet a higher standard of proof, and show malice by a news outlet.

Werhan also said the Times could be protected if it accurately quoted McCain's former aides about their perceptions of his relationship with Iseman.

"If all those statements are true, then it seems to me the Times is not at fault for reporting that," Werhan said.

"It's essentially hard to win a defamation suit," Werhan added. "The idea is the First Amendment has its thumb on the press' side of scales."

I've no doubt that the Times will do everything in it's power to get Iseman labeled a public figure. I don't believe that she is one. If she is one, then every lobbyist is a public figure. And no, the mere fact that the Times made her a major part of a front page story doesn't in and of itself make her a public figure.

If the Times can't get the judge to use the public figure standard, then I'm going to predict that the paper settles the case.

But let's take the best case scenario for the Times. Let's assume she's tagged a public figure and that her lawyers have to prove either "malice" or "reckless disregard for the truth." I still think she's got a good chance at prevailing because Times executive editor Bill Keller is stupid enough to say things like this publicly when his newspaper's coverage is called into question by the McCain campaign:

"My first tendency when they do that is to find the toughest McCain story we've got and put it on the front page."

... and who gives a d*mn if some woman finds herself in the line of fire! Expect Iseman's lawyers to have a field day with that statement.

Not to mention the fact that it seems unlikely that the two unnamed former McCain aides are going to waive the confidentiality that the Times bestowed upon them in order to testify in open court on behalf of the Times. Without the two unnamed aides themselves testifying, all you've got is the reporters' assurances that what they reported was accurate -- good luck with that.

If you're someone who's still holding on to Times stock, I think yesterday would've been a good time to unload it.

0 comments on “How tough is it to prove malice?”

  1. At one time the press might have been given the benfit of the doubt in such a matter, with people simply believing that the press intentions were honorable, and if mistakes were made, they were unintentional. I don't believe that is the case any longer.

  2. Karma.
    Love it when it finally shows up. Patience. Just be patient.
    Also, have some spare time to watch.
    It would be hard to find anybody who thinks the NYT is honest. The difference will be between thinking lying and making stuff up is honorable if it serves a (the right) purpose, and those who don't.

  3. Uh, if Lohrenz v Donnelly (DC Circuit 2003), a case that actually favored the head of a right-wing group, is any indicator, the NYT can claim Vicki Iseman is a "limited purpose public figure." Donnelly claimed Lohrenz was, and thus could avoid a defamation lawsuit. The DC Circuit agreed with Donnelly.

    This suit is going nowhere.

    1. The Times could've claimed Iseman is a "limited purpose public figure," before the Lohrenz case. You can find the ruling here. I've read it, and must confess that I disagree with the court's finding. (That apparently puts me in good company. Apparently, Justice Scalia has expressed skepticism over the entire "public figure" construction of the court which started in the famous New York Times v. Sullivan case.)

      The D.C. Circuit's reasoning in the Lohrenz case is that she became a "limited public figure" simply because she was one of the first women fighter pilots in the Navy. I think that is a stretch. As the author in the second link above notes, logic would then dictate that any woman who ever broke a proverbial glass ceiling would also automatically become a "limited public figure." Another part of the court's justification is that newspapers and TV stations did feature stories on the fact that she was one of the Navy's first F-14 pilots -- that she thrust herself into the spotlight by doing these interviews and opened herself up to the criticism she eventually sued over.

      I think the courts would have to stretch the "limited public figure" definition even further to cover Iseman. She is far from the first female lobbyist on Capitol Hill and, as far as I can tell, never put herself out in the press in any manner as an expert, pundit or spokesperson before her name appeared in the Times hit piece on McCain. I'm not saying the court won't do it or that the Times won't try, but the Lohrenz case doesn't match the facts closely enough for me to rely on it.

      Finally Brad, can you address the Keller quote and how the attitude and mindset it displays would make it much easier for Iseman's lawyers to prove malice -- limited public figure or no?

  4. Had Iseman's lawyers truly thought they had a shot, they wouldn't have settled for 0 dollars. The Time could have won -- public figure or not.


[custom-twitter-feeds headertext="Hoystory On Twitter"]


December 2008



linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram