Unfair sexual intimations


A noteworthy item appears today on page four of The New York Times:

"An article published on February 21, 2008, about Senator John McCain and his record as an ethics reformer who was at times blind to potential conflicts of interest included references to Vicki Iseman, a Washington lobbyist. The article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust."

Translation: On virtually the one-year anniversary of its original story - a story that was rightly assailed by liberals and conservatives alike - The Times has settled a defamation lawsuit filed by Vicki Iseman, and has published a statement that allows it to save face. Sort of.

You may not remember this Times story, which detonated during the latter stages of John McCain's march to the GOP nomination. It was, in my humble estimation, manifestly unfair to McCain - and particularly unfair to lobbyist Iseman, since it definitely left the impression (even if it did not "intend to conclude") that in 1999 she may have sought to serve the interests of her corporate clients by sleeping with Chairman McCain of the Senate Commerce Committee.

The Times, in the strictest sense, did not report errors of fact - the aforementioned "Note to Readers" did not contain a retraction - but its story did insinuate, powerfully so. To tease the reader, the 3000-word piece opened with the unmistakable intimation of sex:

"Early in Senator John McCain's first run for the White House eight years ago, waves of anxiety swept through his small circle of advisers. A female lobbyist had been turning up with him at fundraisers, visiting his offices and accompanying him on a client's corporate jet. Convinced the relationship had become romantic, some of his top advisers intervened to protect the candidate from himself..."

My translation: Back in 1999, some McCain aides (all unnamed) were "convinced the relationship had become romantic" (but we never learn what specific evidence, if any, led them to believe this).

Elsewhere in the story, these unnamed aides were reportedly worried about "the appearance of a close bond," and the possibility of "potentially embarrassing conflicts of interest," because Iseman's telecommunications clients had business with McCain's committee. But there was no evidence in the story that "the appearance" ever led to any actual conflicts of interest - beyond the fact that McCain once sent two letters to the Federal Communications Commission, asking that it rule soon on whether a key Iseman client, Lowell Paxson, should be granted a TV license.

Big deal. McCain himself has mentioned that episode in his memoirs, and it's old news anyway, because the press reported on it 10 years ago - noting at the time that while the FCC rebuked McCain for writing those letters, there was no evidence that McCain had tried to muscle the agency into ruling a certain way. And The Times story offered no fresh evidence of any actual muscling.

Anyway, back to those tantalizing hints of sex: The story said that the unnamed McCain aides got him to admit that he had been "behaving inappropriately" with Iseman. However, from reading the story, there was no way to know whether that phrase referred to the behavior of lovers; or the behavior of platonic pals plotting to help a lobbying client in violation of the public interest; or the behavior of two friendly flirts whose political dealings were legit, but who were imprudently making themselves grist for gossip.

The Times has insisted that the story intended to highlight what it viewed as McCain's willingness to risk "the appearance of impropriety," despite his own carefully crafted image of propriety. But even the newspaper's resident ombudsman, Clark Hoyt, publicly voiced his own discomfort with the story. Shortly after publication, Hoyt smartly wrote: "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 it is the central point or not, it owes readers more proof than The Times was able to provide."

Iseman told the The Times in writing that she had not conducted any kind of liaison with McCain; her denial appeared in the article. She elaborated on her denial last autumn, during lengthy interviews with the nonpartisan National Journal - which, in its own reporting on Capitol Hill, found no evidence that Iseman had ever enjoyed any kind of personal relationship with McCain. Iseman sued The Times two months ago, saying that she wanted to restore her professional reputation "as an honest broker in the political arena."

As part of the settlement, The Times agreed to run a statement, on its website, from Iseman's lawyers (one of whom is a First Amendment scholar). It appears today. The lawyers are on strong ground with their complaint that the article "communicated by implication that Ms. Iseman had unethically capitalized on the implicit illicit relationship to obtain favorable action by Senator McCain on behalf of clients she represented," and that Iseman wound up as "collateral damage" since McCain was the prime focus.

More dubiously, Iseman's lawyers argue that she is a "private individual" as opposed to a "public figure." (In libel law, it's much tougher for a public figure to win a defamation lawsuit.) But, in an online response to the lawyers, The Times pointed out: "A publicly registered lobbyist is hired to influence public officials on matters of public policy." If this case had gone to trial, The Times would have made that argument, and, in all likelihood, the paper would have prevailed.

Needless to say, however, this is not an ideal time for newspapers to be spending money on libel cases. (And why risk an adverse ruling on the "public figure" argument?) Hence this settlement. The Times can say that it retracted nothing; Iseman can say that she won a measure of justice. I think she came out ahead.

It remains imperative that newspapers take risks and report assertively, and The Times is one of the few remaining outfits with the requisite resources. But in this brutal economic climate, and with critics on the left and right always baying for blood, it's also imperative that if investigative reporters take aim, they had better squarely hit the target. These days, there is precious little margin for inexactitude.