[digg-reddit-me]Yesterday, Vicki Iseman – the lobbyist whose attentions may have had an undue influence on Senator McCain – filed a complaint in the United States District Court for the Eastern District of Virginia, Richmond Division against The New York Times Company, Bill Keller (editor of the Times), Dean Baqet (the Times‘s Washington editor), and the reporters over the allegedly defamatory story published in the Times on February 21, 2008. I’ve posted her complaint (PDF) for your full perusal.

There are a few assertions in the piece which are questionable. One is that lobbyists have no personal relationships with the people they are lobbying:

The defamatory statements, express and implied, that Ms. Iseman exploited an alleged personal or social relationship with Senator McCain to seek favorable outcomes or improper influence on behalf of clients, are entirely false…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. [¶ 24]

Yet the job of a lobbyist does consist of using personal and social relationships with people of influence to push an agenda. The ISEA for one believes so – as it describes several tips on how to lobby successfully:

The most effective member-lobbyists are those who have developed a personal relationship with their legislators.

Jeff Kros, a legislative director in Arizona, describes why lobbying works in another how-to guide for lobbying:

Personal relationships take the anonymity out of the process.

Kurt Wise writing a scholarly piece analyzing the effect of interpersonal relationships on lobbying efforts suggests that many lobbyists consider these relationships to be “essential” to their success. It is precisely this fact – that to lobby means to use personal relationships and social skills to push an agenda – that has led an informal synonym of lobbyist to be “corporate whore.”

Iseman’s attorneys would be making a more truthful argument if they explained that if Iseman used her personal relationship to push her clients’ agenda, then that isn’t news – as such whoring is the essence of lobbying. The Complaint virtually acknowledges this in ¶27 as it almost concedes that most of the facts cited in the news article are actually true:

Setting aside the heavy emphasis on the allegedly inappropriate romantic relationship between Ms. Iseman and Senator McCain, the article contained no reporting that was new or newly newsworthy.

As the Complaint lists no complaints of the previous coverage – and in fact cites approvingly some of the coverage – it would seem that Iseman isn’t disputing these accounts of how she wooed McCain on behalf of her clients. The legal argument here is that – no one wants to see how politics is played, how influence is wielded, how sausages are made – but that doesn’t make any of the three newsworthy. It may be unsavory to describe all the perks McCain and other influentials are given by lobbyists – but it’s unfair to portray that as a news story, because it’s so common. I think this is one of the stronger points Iseman can make – but as it is demeaning to her profession, she wisely refrains from doing so.

If this piece seems a bit snarkier than usual, then it may be that I’m bitter at the numerous barbs directed against bloggers in the Complaint. For one, the Complaint calls Matt Drudge, the tabloid purveyor of right-wing trash and master of the political universe, a “blogger” and his website The Drudge Report, an “on-line blog” – despite the fact that neither meets any of the basic definitions of either word. Then in ¶42, the Complaint turns poetic – and implicitly defames all bloggers – with this passage:

As days and weeks went by, and the cruel gossip, whispers, blogs, rumors, confrontations, and innuendo about her continued, her despondency over the publication of the article and its impact on her life grew.

There are two issues of law at stake here aside from the basic facts which don’t seem as if they will be substantially disputed:

whether or not Vicki Iseman will be considered a private or public individual for the purposes of imposing a standard for defamation;

(A public individual has a much higher standard to meet when alleging defamation; the public individual must prove “actual malice” on the part of the publisher of the controversial statement.)

(A public individual has a much higher standard to meet when alleging defamation; the public individual must prove “actual malice” on the part of the publisher of the controversial statement.) whether a defense of the truth of every individual statement can hold up against what Iseman considers “defamation by insinuation” and “defamation by lack of complete context.”

Public versus Private

Iseman maintains that she must be considered a private rather than a public person as she “never sought to enter the arena of general public debate” (¶48). Of course, Iseman was attempting to influence the general public debate using her private relationships with public officials, making her actions of considerable interest to the public at large. But even further, it is my opinion that all people who are paid to consort with public officials – prostitutes, hookers, whores, lobbyists, and escorts – should be considered public figures to the extent of their relationship with the public figure.This applies doubly to those who with “private” debate and use of their personal relationships attempt to affect the public debate rather than just serve as a “companion.” In other words, if Ashley Dupree‘s and Monica Lewinsky’s “companionship” with public figures can be mentioned in a news story, so can Vicki Iseman’s undisputed companionship. We can even call them “voluntary, limited-purpose public figures.”

Defamation by Insinuation

Iseman attempts to charge the Times with defamation based on “what was intentionally suggested and implied “between the lines” (¶16) of the news story. The Complaint later explains that the Times should be held responsible for “how the article was in fact received and understood by readers” (¶18). It strikes me that this is an incredibly slippery slope. The facts cited in the Times article aren’t substantially disputed in the Complaint – only the impression the article left on readers. As the Complaint tries to nail down a defamatory comment from the Times, you can see Iseman stretching, as in this example from ¶20:

The article then engaged in the classic phrasing of gossip and innuendo that two people are having an inappropriate romantic relationship, with the passage: “But in 1999 she began showing up so frequently in his offices and at campaign events that staff members took notice. One recalled asking, “Why is she always around?” [my emphasis]

Notice that in explaining this specific, the Complaint tries to sidestep the issue it supposedly is trying to prove. While I’ll grant Iseman that the facts cited by the Times piece do suggest she was in an inappropriate romantic relationship with Senator McCain, that’s not the point she’s trying to make with this. Instead, she suggests that the Times is using “classic phrasing of gossip and innuendo” suggesting that they are using some form of commonly understood coded language to convey a clear meaning. This neatly sidesteps the issue of whether or not the facts reported by the Times are true and tries to assert they are instead a form of code. The problem is that this isn’t a “classic phrasing” of any sort – and seems determined by the facts as understood by the Times reporters. The reporters may have been wrong in what they were implying, but I would think the truth of their statements should be a defense. If the Times reported there was smoke, and strongly insinuated there was a fire, but never stated so – and there was smoke – I don’t think they can be fairly faulted.

All this being said, Courts have recognized defamation by insinuation as a cause of action – although the focus in the jurisprudence has been what a passage was intended to convey rather than how it was “in fact received and understood by readers” as this Complaint discusses. As discussed in White v. Fraternal Order of Police:

[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.

Iseman’s Complaint fails to make this argument, focusing instead on how it was received.

Defamation by Lack of Complete Context

The Complaint also argues that even if Iseman is considered a public figure, the Times was “deliberately and recklessly misleading” indicating “actual malice,” thus meeting the much higher standard of defamation required for a public figure, or a voluntary, limited-purpose public figure. Iseman alleges here that the Times demonstrates actual malice because it failed to place “the statements of the principal source for the article” “in truthful context” (¶44.) This seems to be a higher bar than defamation by insinuation – which considered unstated implications to be actual defamation. In ¶44, the Complaint alleges that a failure to provide an appropriate context for factual statements also consists of defamation. Under this standard, the McCain ad which deceptively uses video of Obama mocking the idea that he is “The One” without contextualizing it to demonstrate Obama’s intent could be considered defamation as well.

Using this extraordinarily high bar, Iseman states that even printing her denial of the unstated allegations didn’t negate entirely the impression readers might have based on the facts reported:

The article did print the fact that Ms. Iseman and Senator McCain had denied any romantic relationship or other inappropriate conduct. These denials, which most readers would understand as “obligatory,” and therefore precisely what Ms. Iseman and Senator McCain would be expected to say, did not negate the defamatory meanings that otherwise pervaded the article…(¶26)

Which again leads this Complaint to be blaming the Times for actions entirely out of it’s control.

Conclusion

Altogether, the Complaint is troubling in how it attempts to hold the Times to an unreasonable standard. If the Complaint’s legal arguments were accepted by a Court, it would have a substantially chilling effect on freedom of the press and free speech. If some magazine or newspaper reported that the President had signed off on a memorandum changing the definition of torture, and American military and paramilitary personnel subsequently tortured prisoners – this could be understood to imply that the President had responsibility for the torture, opening up the reporters and media sources to a possible defamation lawsuit. But the Courts have enough established precedents in this area that I’m not worried yet. Clay Calvert, interviewed by The Wall Street Journal Law Blog, suggests that the case is unlikely to get to a jury and will probably be settled.

NB – I should give a shout-out to Matt Yglesias for what I think is his first time being cited in a Complaint in Federal Court (¶32) for this blog entry. Congrats Matt!

Also, I’m not trying to defend the Times story here. I tend to agree with Yglesias’s follow-ups to his original post cited in the Complaint. But I think the theme of the Times piece – the insight into McCain’s character that it revealed – stands up:

Even as he has vowed to hold himself to the highest ethical standards, his confidence in his own integrity has sometimes seemed to blind him to potentially embarrassing conflicts of interest.

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