A Washington, D.C., lobbyist's defamation suit against The New York Times includes an extraordinary attack on the newspaper's publication of her denial that she had a romantic relationship with Sen. John McCain.

The Times reported on the relationship between McCain and Vicki Iseman in a front-page article published Feb. 21. “Mr. McCain, 71, and the lobbyist, Vicki Iseman, 40, both say they never had a romantic relationship,” the article said.

McCain, who also denied showing any favoritism toward Iseman or her clients, made his statements in a call to The Times' executive editor to complain about the paper's inquiries into their relationship.

The publication of such denials commonly helps protect journalists from libel suits by showing good-faith reporting and an absence of malice. But in a complaint filed last week, Iseman not only alleges The Times defamed her by “clearly implying” she was romantically involved with McCain, but also suggests the publication of their denials is additional evidence of liability.

“These denials, which most readers would understand as 'obligatory,' and therefore precisely what Ms. Iseman and Mr. McCain would be expected to say, did not negate the defamatory meanings that otherwise pervaded the article ...,” she says.

“Indeed,” Iseman continues,

that The New York Times would make such aggressive and sensational allegations and insinuations in the face of on-the-record denials by Ms. Iseman and Sen. McCain only reinforced the message to readers that The New York Times in fact believed that Ms. Iseman and Sen. McCain had engaged in an 'inappropriate relationship,' a relationship that was romantic, unethical, and a conflict of interest. Otherwise, reasonable readers would conclude The New York Times would never have printed the story at all.

Iseman's lawyers include First Amendment expert Rodney A. Smolla, dean of the Washington and Lee School of Law in Virginia. The case, he said, offers a chance to “reinforce the core principles of what is legally protected journalism.”

But it's not clear how Smolla can show that a reasonable reader would take The Times' publication of denials at anything more than face value. And top media attorney Douglas E. Mirell (Loeb & Loeb, Santa Monica) tells On Point he has “never heard it argued -- much less seen any court approve the notion -- that a published denial somehow exacerbates the alleged defamatory injury.”

“If a publisher were imperiled by the inclusion of such a denial,” he adds, “one wonders what stories Bob Woodward and Carl Bernstein would have been able to convince The Washington Post to publish as the Watergate scandal unfolded.”

Indeed, if Iseman's notion was approved, journalists would be damned if they did publish a denial and damned if they didn't.

By Matthew Heller
1/5/09