Commentary From Iseman’s Lawyers
Published: February 19, 2009
Today our client Ms. Vicki Iseman settled the defamation action that we filed on her behalf against The New York Times, and a number of its editors and reporters, resulting from an article published by the Times on February 21, 2008.
The suit alleged that the published article communicated by carefully drawn implication that Ms. Iseman and Senator John McCain had an illicit romantic relationship in 1999. Senator McCain was at that time Chairman of the United States Senate Committee on Commerce, Science, and Transportation, and Ms. Iseman was representing clients as a lobbyist on matters relating to the business of the Committee. The suit further alleged that the article also communicated by implication that Ms. Iseman had unethically capitalized on the implied illicit relationship to obtain favorable action by Senator McCain on behalf of clients she represented.
When originally published in the midst of a hard fought presidential campaign, the article triggered an avalanche of criticism from readers, public commentators, and even The New York Times’ Public Editor. This case is now ended, on the basis of an agreed settlement that includes a Note to Readers, a Joint Statement, the publication of this Commentary, as well as the accompanying response on behalf of The New York Times. As the two lawyers who represented Ms. Iseman in this matter, we offer these thoughts in the spirit of prompting meaningful debate concerning the vital importance of drawing the proper balance between the need for free and open public disclosure and the privacy rights of individuals.
As her attorneys, we came to know Ms. Iseman as a strong, hard-working, diligent and effective professional, held in high esteem by others in her field. We also witnessed, first-hand, the tremendous harm that was caused by an article that we believe cut to the heart of our client’s personal as well as public identity.
Defamation suits such as this serve three essential purposes: to redress the injury to reputation and human dignity, to demarcate the line between public and private life, and to advance the integrity of the public record and the quality of political discourse.
Words have extraordinary power to wreak havoc on the life of a human being. Shakespeare, writing in Othello that “Good name in man and woman, dear my lord, Is the immediate jewel of their souls” marked this essential link between our reputation and our humanity. United States Supreme Court Justice Potter Stewart, writing centuries later, asserted this same fundamental truth when he wrote that the individual’s right to protection of his or her good name “reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.”
In a manner perhaps unique in the history of nations, we as Americans have embraced cherished First Amendment principles to strike a delicate balance between the need to protect freedom of speech and the need to protect individual worth, dignity and humanity. These principles trace a proud legacy that includes The New York Times itself, in the landmark 1964 decision New York Times v. Sullivan, wherein the United States Supreme Court justly proclaimed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Ms. Iseman, however, is not a government or public official, and in our view, not even a public figure. Had this case proceeded to trial, the judicial determination of whether she is entitled to the protections afforded a private citizen would have been the subject of a ferocious, pivotal battle, with Ms. Iseman insisting on her status as a private person and The New York Times asserting that she had entered the public arena, and was therefore fair game. That judicial contest has now been concluded in this instance, but the issue deserves ongoing scrutiny, certainly in our schools of law and journalism, but also in the arena of public debate.
Indeed, the essential quality of our public discourse, even the very character of our national culture, will be heavily influenced by why, where, and how we draw this line. The rules of engagement ought not be the same for public figures and private persons. To disregard this important distinction, or to draw the line of demarcation in the wrong place, will degrade our political discourse, and diminish both the dignity of individuals whose private lives are reported upon, as well as the dignity of the journalists and news organizations who report upon them. It does not lessen the harm done in the life of a private individual, merely because that harm is viewed as collateral damage in an article whose focus is a public official.
We accept that there are circumstances wherein it is appropriate to probe into the private lives of individuals, because private matters can in some instances bear a palpable nexus to matters of public concern. With the settlement of this case, it will now be for others to carry on the debate as to whether that nexus was properly established in the article that prompted this litigation. We believe passionately, however, in this basic proposition: To abandon, in law or in social convention, the division between public and private life, does not serve to advance the free exchange of ideas, but does coarsen our culture, cheapen our public discourse, and diminish our respect for human dignity.
To their credit, the parties have settled the present case through negotiation, a rational process that has led to a civilized resolution. It is our hope that this resolution will now help to spur a civilized national debate.
Rodney A. Smolla is an attorney, and Dean of the Washington and Lee University School of Law. W. Coleman Allen, Jr. is a trial lawyer with Allen, Allen, Allen, and Allen, based in Richmond, Virginia.