Lobbyist libel suit ends with few lessons to draw

March 2, 2009

There’s an old bit of wisdom among lawyers that bad facts make bad law. Drawing lasting lessons from an unusually messy dispute can backfire. You end up distilling unusual circumstances into some bone-headed principles that are then applied elsewhere, compounding the harm, turning today’s idiocy into a curse.

That’s not quite what happened with the libel suit over last year’s New York Times story about Sen. John McCain and the pretty lobbyist. It didn’t make bad law because it settled out of court, and its dubious elements were never reborn as dubious rulings that return to stalk the living.

Still, because it was a prominent dispute there’s danger its resolution may do the same harm as bad law – serve as precedent. That would be a pity, because it has now ended with the Times standing by a position it should have recanted, while handing the lobbyist a soapbox from which to claim protections she doesn’t deserve.

The original sin was a February 2008 front-page inquiry into Sen. McCain’s dealings with special interests. It suggested that despite his image as a reformer, he’d long had cozy relations with lobbyists that had blinded him to apparent conflicts of interest.

Case in point was McCain’s friendship with Vicki Iseman, a telecommunications lobbyist decades younger. During his unsuccessful 2000 presidential campaign his dealings with Iseman were so cordial, the Times reported, that “waves of anxiety swept through” his top aides, who feared the two might be viewed as romantically involved.

The intimation of an affair gave the story unusual punch. Even though it offered no evidence beyond concern among aides that people might talk, a reader couldn’t fail to conclude that the Times had determined there was good reason to suspect romance. That tasty element led the extensive secondary coverage.

Iseman sued for defamation in December, and it’s her suit that was just settled. No money changed hands. Instead, principles were declaimed, and that’s where the analogy to bad law comes in.

For its part, the Times published a one-paragraph statement of lawyerly finesse: “The article did not state, and … did not intend to conclude” that Iseman and McCain had had an affair, the paper said.

True, the story “concluded” nothing. But it plainly implied, suggested and insinuated. Indeed, to turn the question around, if the reporters had not found the suspicions credible, how on earth could they justify reporting them?

Now, as a matter of journalistic practice, was that OK? No. Repeating the whisperings of possibly ill-informed, perhaps overprotective aides was indefensible.

And at a time when evidentiary standards are under pressure online – where increasingly, if a rumor is “out there,” it’s considered reportable – the Times had a chance to reaffirm the principle that verification is at the heart of responsible journalism, and blew it.

Still, while the Times failed to own up, it provided its adversaries a chance to do mischief of their own.

That came in a published statement from Iseman’s attorneys. It’s a long and curious commentary. It ignored the matter of whether the story was true. Instead, it suggested Iseman fell victim to an intrusive press that didn’t respect her rights as a private person. Indeed, in a joint statement, both Iseman and the Times agreed that they “recognize that the article’s publication generated a significant public debate concerning the privacy of people swept up in public matters.”

Nonsense. Now I was big on privacy when I first criticized the Times story a year ago, and argued that if McCain was favoring friends through official acts the press should report that without bothering with whether he slept with any of them. I’m not so sure now.

The real question is whether a public official is on the take, accepting favors and dispensing favoritism. The payoff can be money, but it can also be sex. The issue isn’t adultery or personal morality – it’s corruptibility.

That’s why Iseman’s privacy protest rings hollow. She wasn’t McCain’s neighbor or his real estate agent. She was a major lobbyist heavily involved in the public policy arena; her job was to wield influence. If a lobbyist like her used questionable methods and if a powerful official was susceptible to them, that would not be a private matter, any more than withdrawing money from her personal bank account for a bribe would be.

At least, it’s some consolation that the Iseman-Times matter is over. But if anybody is looking for lasting lessons they’d best look elsewhere.

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