Tuesday, December 30, 2008

Vicki Iseman sues the New York Times 

Remember back last spring when the Grey "Lady" ran a front page story that all but accused John McCain, on the basis of no evidence, of having an extra-marital affair with a Washington lobbyist? Well, the lobbyist in question, one Vicki Iseman, is suing the New York Times for all it is worth, more or less. OK, $27 million, but that's metaphorically "all it is worth."

Bloggers are having fun with the schadenfreude -- "GO TO TRIAL QUICK, WHILE THEY STILL HAVE SOME MONEY" -- but I wonder about the discovery. Truth is a defense to libel, so you can bet your bottom dollar that the NYT is going to do what it can to prove that Iseman and McCain did have an affair. Surely Iseman knows that, which means either that there was no affair or there was, but she figures that the Times cannot prove it. Since they can certainly depose her and ask her the question under oath, if she and McCain did have an affair she would have to perjure herself to sustain her case, which would be insane in a lawsuit of this profile. I'm with Jules (that either Iseman or the Times is insane), with one caveat:

Given that a lot of people are looking at being deposed under oath, and a discovery process is about to take place, it looks like someone, on one side or the other, is out of someone’s mind. Either that or Iseman just figures they will pay her a lot of money to drop the matter.

Agreed, so under what circumstances would the New York Times pay a lot of money it does not have in abundance to make Iseman go away? There are three scenarios.

First, its management learns during discovery that there was no affair and the story was wrong.

Second, the anonymous sources of the story are the only witnesses, and the Times cannot serve up those sources now to prove the truth of the story without breaking its promise of anonymity.

Third, there is some sort of hideous smoking gun email or other evidence that reveals that the editors of the Times were particularly out to take down McCain, and the NYT would rather pay a few million bucks than have that evidence surface.

My favorite theory is that there was no affair, and there is at least some evidence that Iseman's laweyers believe might cause the jury to see the story as an intentional smear. Any other answer would seem to require Iseman to perjure herself, always a bad idea.


By Anonymous Anonymous, at Tue Dec 30, 11:16:00 PM:

FWIW, a friend who is a private detective in D.C. says the Times spent a lot of time and money (after the fact) trying to find proof of the allegations they made. He thinks they did not find proof of this allegation, but he also thinks there is proof of other, similar allegations about McCain. In other words, the Times wrote about a story that they perhaps cannot prove while missing stories they possibly could have proven.

This is all low gossip, including my own comments, and it was and is ridiculous that the NYT would prostitute themselves in such an obvious attempt to manipulate the election. Just another reason to not buy the NYT!  

By Blogger DEC, at Wed Dec 31, 12:10:00 AM:

I expect the case to go all the way to the U.S. Supreme Court.

For starters, see New York Times Co. v. Sullivan.

Wiki (for quick reference):

"New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases—when they involve public figures—rarely prevail."

Personally I think the decision in that case went to far. Before that decision, the news media was much more careful about allegations.

P.S. I'm not a lawyer, so don't expect me to debate the details.

Wiki link:

By Blogger DEC, at Wed Dec 31, 12:15:00 AM:

P.P.S. Make that "too far," not "to far."  

By Blogger chuckchuck, at Wed Dec 31, 12:42:00 AM:

People with too much time on their hands, too much money in their pockets all the while they naval gaze. The whole episode sounds like a Hollywood soap opera. Yes isn’t it ridiculous!  

By Blogger apex, at Wed Dec 31, 01:37:00 AM:

I think it's a good idea from an incentives standpoint. It appears to me that a mindset of "run the story and retract if proven wrong" has become commonplace in media, IMHO mostly because there's no downside risk. Taking the Times to court over 27 million and winning will do much to change that attitude improve the quality of the journalistic process. Think of it as "putting your money where your mouth is".


By Blogger TigerHawk, at Wed Dec 31, 07:49:00 AM:

DEC: I actually think New York Times v. Sullivan is a good case, good policy, and rightly decided, but to each his own. It does, however, point to the biggest problem for the Times, which is the "public figure" analysis. Under Sullivan and related law (relying on memory here, so all the better lawyers should pick at me if I am wrong), there is a different standard for libeling "public figures" and ordinary people. With regard to ordinary people, the old tort standard applies. With regard to "public figures" -- people who have thrust themselves into the public eye more or less on purpose or by choice and usually for some benefit (politicians, celebrities, big businesses, and such), the plaintiff public figure must show that the supposedly libelous statements were both wrong and that the "speaker" or publisher demonstrated a "reckless disregard" for the truth (more or less) or "actual malice", which is basically a direct intent to harm the plaintiff. That is why a smoking gun email could hurt the Times, because it could show "actual malice."

Now, I suspect that the real fight in the Iseman case will be over whether she is a "public figure." Tough question, especially since the law allows otherwise private people to be "public figures" for a specific reason. She is a Washington lobbyist trying to influence legislation, and the claim is that she was sleeping with a Senator. Arguably, she was a public figure for the purpose of the story published in the NYT, even if she would not have been a public figure for the purpose of an article alleging (say) that she was defrauding investors.

Anyway, this will be a very interesting case. I hope to get through the complaint today.  

By Anonymous Anonymous, at Wed Dec 31, 08:40:00 AM:

The Times started out wanting to write a story about McCain having an affair with a lobbyist, but when the facts weren't there they still ran it, pretending it was a story about "McCain aides are worried about rumors of an affair." I was shocked when they ran this story back in February ... and that was before I learned of their later non-reporting on Tony Rezko and John Edwards' two-headed love child.

The article implied that McCain had been corrupted, not just that he was a philanderer. To see how contrived the article was, it implied that in exchange for sexual favors McCain had improperly acted on behalf of an Iseman client by using his muscle as Chairman of the Senate Commerce Committee to strong-arm the head of the FCC ... when all McCain actually did was write a letter to the FCC to politely ask that they make a decision on an application that had been languishing at the FCC for over two years.

There's a reason Iseman is suing in Richmond Virginia, not in New York. Bad as this story is as to McCain, an obvious "public figure," Iseman was an innocent victim dragged into this. The Times called her a whore, and ruined her career. In New York, The Times' lawyers could argue that she was only collateral damage ... that they only meant to libel McCain, not her. That won't fly in Richmond. The $27 million she's asking for isn't enough.

The Times will say that the individual sentences in the article were carefully written and lawyerly accurate, but the overall message impression of the article was that Keating FIve McCain was hopelessly corrupt after years in Washington, and that Iseman put out to get results for her clients. Every other news organization picked up on the Times story that way, as detailed in the complaint.

Can Iseman show that she wasn't a public figure by using Google hits? ... a paltry few before ... 82,700 as of today.

A Virginia court may allow her to get some interesting discovery. She should be able to show how the story morphed and expose the Times internal debate about it. The reporters and editors will all look like incompetent assholes. For fun, Iseman's lawyers could show it was a story that the National Enquirer had heard the Times was working on but refused to run itself. You might be able to get into their editorial decision making ... "Why did you run this story, but not this" ... as it goes to malice. What could come out is that some at the Times were intent on running an anti-McCain story for their own personal political reasons, something many of us already suspect.

At this point, the Times can't back down and settle, so I bet this has legs. This could be the final nail in the coffin of the Times, as their reputation as the premier paper of record is on the line ... the last asset they have.

I'm following this with interest, because I believe that 2008 was the year that our traditional media died as responsible political reporters.


By Blogger TigerHawk, at Wed Dec 31, 08:55:00 AM:

Well said, Link.  

By Anonymous Anonymous, at Wed Dec 31, 09:55:00 AM:

"Second, the anonymous sources of the story are the only witnesses, and the Times cannot serve up those sources now to prove the truth of the story without breaking its promise of anonymity."
I believe this is the dumbest thing I've ever read on this blog. The NYT will identify the sources in a, well, New York minute and blame them loudly, to avoid liability jhere. This is not about "journalistic integrity," it is about cash an can, therefore, be rationalized to allow identification. I see an editorial that says, "We relied on sources believed at the time to have been accurate and if there is a problem, contact them. Their names and numbers are as follows...." This editorial comes much sooner if the sources are McCain people or Republicans.  

By Anonymous Anonymous, at Wed Dec 31, 10:03:00 AM:

It's been a while since I read the article, but I recall it being pretty slippery-- noting the concerns of aides that something was going on. So one issue will be whether, notwithstanding the fact that the Times was undoubtedly trying to smear McCain, what was printed was factually accurate. I suspect the risk here for the Times is, as TH noted, that if one of the "concerned" aides was a source, they may have promised not to identify him/her. Interesting side issue is what would happen if, say, Iseman's lawyers take the deposition of an aide who spoke with the Times and that person denies having done so. Would the Times keep a promise to a source it knew commited perjury (and injured the Times in doing so)? This could be fun. Goody  

By Blogger DEC, at Wed Dec 31, 10:26:00 AM:

Excellent comments, TH and Link.  

By Blogger Dawnfire82, at Wed Dec 31, 12:42:00 PM:

"I see an editorial that says, "We relied on sources believed at the time to have been accurate and if there is a problem, contact them. Their names and numbers are as follows...."

And so what happens when those sources don't exist, or refuse to admit their role in the story?

The NYT printed the story, they are responsible for the effects. Theoretically, that's why they have layers of fact checkers and multiple sources who corroborate one another. Blaming their 'sources' (I've long suspected that many, if not most, 'anonymous sources' do not exist as represented by newspapers) is facile, but wrong.  

By Anonymous Anonymous, at Wed Dec 31, 01:14:00 PM:

because she's radioactive.

Whatever we may think of lobbyists, no one deserves to be treated this way. If this isn't defamation, what is.

It's telling that Times in all its arrogance looks on Iseman as nothing more than collateral damage ... a little person not worth caring about nor apologizing to.

By Anonymous Anonymous, at Wed Dec 31, 01:15:00 PM:

Ignore prior post ... I lost text

This story isn't getting picked up by MSM, but I expect it will re-surface as the lawsuit progresses.

I'd bet the ranch that Iseman didn't have an affair with McCain and that the Times knew that it couldn't prove that she had. That didn't stop the Times from using innuendo to imply that she did, because they needed a hot blonde Cindy McCain look-alike to sex up their flimsy story. As a result, Vicki Iseman was ruined both personally and professionally. Many of the people she meets now assume she "put out" for profit ... that she was a whore. No one will hire her as a lobbyist because she's radioactive.

Whatever we may think of lobbyists, no one deserves to be treated this way. If this isn't defamation, what is.

It's telling that Times in all its arrogance looks on Iseman as nothing more than collateral damage ... a little person not worth caring about nor apologizing to.  

By Blogger Georgfelis, at Fri Jan 02, 11:20:00 AM:

From the Times POV, there seems to be only two kinds of people: Unimportant schlubs who can be beaten with impunity (R), and Important People who must be kissed up to (D).

News for Pinch: Some of us schlubs have lawyers.  

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