Julie Hilden is a strong believer in the First Amendment, including in matters involving sexual subject matter. Therefore, it was striking for her to argue the NYT had a weak case, and therefore should settle high, in a case that allegedly implied lobbyist Vicki Iseman had a sexual relationship with John McCain. I personally saw it as more as a matter of his lax concern for appearance of impropriety. It turns out that she has dropped her lawsuit, the paper providing a brief statement and allowing her lawyers to make a statement as well.
A statement to the staff:
In Friday's paper we are publishing a note to readers that repeats what we had already said in countless interviews, that the article did not state or intend to conclude that Ms. Iseman had engaged in a romantic relationship with Mr. McCain.
We let Ms. Iseman's lawyers have their say in a commentary on the Web, with a response from Bill Keller. Why? Because that's what we do. We let people we write about have their say.
Actually, the paper does not generally promise to publish op-eds by the lawyers of subjects of stories in this fashion. It might be a useful to device to regularly do something like this, but it isn't common practice. The lawyers' (including top First Amendment lawyer Rod Smolla) statement summarized the facts, but focused on the reasons for the suit in the first place. Some key excerpts:
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. ...
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. ...
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.
A 1970s ruling entitled Gertz v. Robert Welch, Inc. is basic to this arena. The case allowed a much lower standard of fault to be shown in libel cases when a public official or figure is not involved. There was some suggestion earlier that the true test was "all discussion and communication involving matters of public or general concern," but this was deemed too broad to secure the essential interest of personal privacy and good name, the "essential dignity and worth of every human being." Freedom of speech even in the case of private persons require some breathing room, but there is a balance.
I am wary about opening up the press to expensive litigation, especially in cases like this where (Hilden aside) we are dealing more with debatable implication than clear allegations of fact, especially when matters of public concern are involved. Looking at her own lawyers' summary of the facts, this surely is such a case, concerns about the close (not in that way) relationship between politicians and lobbyists surely an essential public matter to investigate. Hilden is doubtful that Iseman is a public figure:
Did Iseman inject herself into the controversy about lobbyists' influence? Most limited-purpose public figures gain their status by what they say: They join a debate. One reason courts deem them public figures, and afford them less defamation protection, is that even when they bring suit, it's clear that they already have access to the First-Amendment forum in which they need to defend themselves; after all they've used it before.
But the only way Iseman could be deemed to have injected herself into this controversy is through her friendship with McCain – that is, by what she did by spending time with him, not by anything she said to the press. Can a plaintiff inject herself into a debate with actions, not words? It's not completely clear from the law, but the justification that the plaintiff plainly has access to a forum (other than the court itself) because she has already used it, is not present here.
Using the negative, as the SC did in the case, can we say (changing the pronouns): "He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome." Not enough to let her off. Iseman is a lobbyist. She opened herself up to criticism and reporting of this nature by making it her business to have a special role with a public figure. The case does not only focus upon the nature of the individual in all contexts, but also "for the purpose of this litigation." And, here particularly, she has a significant role to play.
She did "thrust [herself] to the forefront of particular public controversies in order to influence the resolution of the issues involved." What does lobbyists do if not try to influence things? A lobbyist also has some means that more private individuals do not have to provide their side of the story, to respond to the press coverage. The combination of influence and perils of the job (put yourself out there, you will sometimes get burned) provides enough that her lawyers might have found the judge was leaning toward making her a "public figure." The discovery might have gone badly or some other factor might have been involved in her decision too.
Either way, it is a tad absurd to suggest the influence of lobbyists, including the appearance of impropriety as a result of meetings in public locales (not a private dinner), is for First Amendment purposes "private." But, yes, politicians are involved with totally private individuals as much as the next person, and some connection does not suddenly make the person (let's say a baker who sells him bread, who turns out to have a sister allegedly with a drinking problem) a public figure. Nor, per Gertz, would some sort of public role in the community alone do the trick.
BTW, Justice White's Gertz dissent (fearing the lack of protection for private figures) is well worth reading. He is not really known for his opinions, but he has some gems, including those providing a point of view not accepted by the majority. White's look at the historical background of libel law belies some of the doctrinal simplicity that Douglas and Black argued history compelled. A complexity that as a general principle can apply across the board.
I prefer Brennan's take, see particularly his footnotes, but White provides useful input.