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An unlikely weapon in the libel arsenal

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From the Winter 2009 issue of The News Media & The Law, page 29. It may be buried now in…

From the Winter 2009 issue of The News Media & The Law, page 29.

It may be buried now in the recesses of our collective 2008 presidential election memory, but at the time — mid-February, just as Sen. John McCain was wrapping up the Republican nomination — a New York Times article on the Arizona senator’s evolving ethical reputation created a media maelstrom.

At issue for many critics of the 3,026-word piece, “For McCain Self-Confidence on Ethics Poses Its Own Risk,” was the revelation, reported in the lede paragraph, that during McCain’s 2000 bid for the presidency several unnamed aides became “convinced” that his relationship with a lobbyist had “become romantic.”

McCain and the lobbyist, Vicki Iseman, adamantly denied they’d had an affair. The Times said as much in the fourth paragraph of the article. From there, it moved into a nuanced report on McCain’s political growth, and perceived pitfalls, as a self-identified champion of ethics in government.

But it was the information about Iseman that dominated the evening news, after McCain called a press conference to excoriate the paper. Three days later, in what would eventually become an unusual nugget in Iseman’s libel lawsuit against the paper, the Times’ own public editor weighed in:

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.

Iseman claimed in her Dec. 30 lawsuit that she had been defamed “through the literal words of the article and also by [its] implication.” To bolster her contention that the article held defamatory meaning, Iseman pointed to “how the article was in fact received and understood by readers, other news organizations, and commentators.” Chief among them, she said, was Times public editor Clark Hoyt.

It is far from clear how much Iseman might try to rely on Hoyt’s column in court, or should the case go to trial and Hoyt be called to testify, just how useful his words could be for her. Perhaps, as Clay Calvert, who is a First Amendment Scholar at Pennsylvania State University, says, Iseman’s inclusion of the column in her complaint will have its real impact in the court of public opinion. But by attempting to use against the paper its public editor, a uniquely positioned insider-outsider, Iseman raises unusual questions about the role of an ombudsman in critiquing and at times protecting the publication that pays him.

Hoyt categorizes himself as an independently contracted outsider, not a newspaper employee. “I am not privy to editorial decisions. I don’t have the authority to tell anyone at the Times what to do. . . . I read stories the same way any other reader reads stories and that’s when they appear in a newspaper, and not before.”

And yet, as Calvert said, “It’s very damning in the court of public opinion for a New York Times person to say that the paper owes more proof than it was able to provide.” Even if an ombudsman gets a libel plaintiff no where in court, his column can still come back to haunt the paper.

Inside the lawsuit

The 2008 presidential election was over, with McCain settling back into his longtime role as a Capitol Hill heavyweight, when Iseman filed her libel lawsuit in the U.S. District Court for the Eastern District of Virginia. She sought $27 million in damages. Iseman named as defendants the paper, executive editor Bill Keller, editor Dean Baquet, and the four reporters who put the article together: James Rutenberg, Marilyn Thompson, David Kirkpatrick and Stephen Labaton. Labaton is on the Reporters Committee’s steering committee.

Iseman enlisted First Amendment attorney Rodney Smolla, dean of the Washington and Lee University School of Law (see sidebar), and Richmond litigator W. Coleman Allen Jr., as her attorneys.

Iseman alleged that the article had two central false and defamatory meanings: First, that Iseman “exploited an alleged personal and social friendship” with McCain, creating “a conflict of interest and a violation of professional and ethical norms in breach of the public trust.” The second dealt with the reportedly alleged affair.

Hoyt, the Times’ third public editor, is drawn into Iseman’s lawsuit in a section elaborating on her assessment of how readers broadly understood the article.

“Most significantly of all,” the complaint says, “The New York Times’ own public editor, Clark Hoyt, interpreted the article as communicating that Ms. Iseman and Senator McCain had engaged in an inappropriate romantic relationship.” To substantiate that assertion, Iseman quotes from Hoyt’s column, including his comment that most readers “saw it as a story about illicit sex.”

Then again later, in alleging that the Times’ “pounding incessantly on the sensational allegation. . . was ‘actual malice’ at its worst”, the complaint references the column for support again.

But no where in that column does Hoyt divulge precisely how he interpreted the article — whether he saw it as meaningfully saying there was an affair, or as simply raising the McCain aides’ concerns about the appearance of their relationship. Rather, he chides the paper for running a piece he felt raised an explosive allegation, made by unnamed sources, without offering adequate evidence to support it.

In what ways Hoyt might shore up the plaintiff’s argument is less clear. As Hoyt himself was quick to point out in an interview, he works largely independently of the newspaper. (Times general counsel George Freeman said the whole point of having an ombudsman is that he or she operates independently of the newspaper — and pegging Hoyt as a Times insider “is a misnomer.”) As Hoyt said, he had no part in the preparation of the article; everything he learned about the newsgathering process, he drew from post-publication interviews.

All of this could become relevant if Iseman attempts to establish negligence or actual malice on the Times’ part in an examination of the reporters’ methods and state of mind during the build-up to publication. But, Calvert cautioned, if Hoyt knew nothing of their process until after the story hit newsstands, it would diminish the value of what he could speak to in court.

Alternatively, how a newspaper handles a controversial story in the hours and days after it is printed can come up when damages are assessed. But even if Iseman’s case were ever to reach that point, Calvert said there again it’s unlikely Hoyt’s column would carry any particular weight. After all, his column isn’t a published correction or an editor’s note; the ombudsman does not speak for the paper but, in a way, to it. He is a critic and a reporter whose beat is the paper that pays him.

“It’s the editor’s job to defend against a lawsuit,” said Derek Donovan, who is the ombudsman for the Kansas City Star. Although he is mindful of the potential legal ramifications of his words, he said, “A public editor is not in the place to make a statement on behalf of a paper.”

Indeed, in a discussion on whether the Iseman lawsuit has had an impact on his approach to his work, Hoyt was asked if it is ever a public editor’s job to help ward off lawsuits by explaining a paper’s side of a situation. “I don’t think about it that way and I don’t want to have to start thinking about it that way,” he said.

Anticipating the fallout

According to the Organization of News Ombudsmen, only 35 of the nation’s roughly 1,600 daily newspapers have an ombudsman.

Hoyt says he hopes the Iseman lawsuit doesn’t strain his several-dozen counterparts across the country by making them fear a legal ripple effect for their words: “I think that newspapers would be reluctant to retain someone who could wind up being a potential witness against them,” he said. “I think an ombudsman, whether consciously or unconsciously, could start looking over their shoulders worrying that anything they might write could be turned into courtroom evidence and they into witnesses. It puts the whole role in danger, I think.”

But it’s worth noting that on its Web site the ombudsman organization says that one of the reasons a newspaper should have an ombudsman is “to resolve some complaints that might otherwise be sent to attorneys and become costly lawsuits.” And that raises one of the core benefits Hoyt and others see an ombudsman bringing to a newspaper and journalism overall: facilitating dialogue so that readers may better understand the process behind the paper, and so that the paper may more clearly and publicly see its strengths and weaknesses.

For now, Hoyt said he hoped that the Times’ willingness to engage in such open discussion would not be “chilled” by the thought or fear that he “could wind up being some kind of witness against them.”

He added, “I think something would be lost in that, something very important for our readers.”

This article was reported by Dana Liebelson and Ahnalese Rushmann, and was written by Kathleen Cullinan.