Smolla's Smooth Over 

How suing The New York Times tripped up Rod Smolla, former dean of UR's law school.

An important event of national significance concluded in Richmond only several weeks ago.Aÿ The First Amendment to the U.S. Constitution was at the core. You know, freedom of speech and freedom of the press. These freedoms are cherished by Americans. But there are some limitations. Justice Oliver Wendell Holmes Jr. once said that free speech does not entitle one to yell “fire” in a crowded theater, and the states provide legal remedies to anyone whose reputation has been falsely trampled. If your reputation has been damaged, you may bring a defamation suit seeking compensation.

But if you are a public figure, U.S. Supreme Court decisions hold you must prove that what was said about you was not only false, but that it was said about you with malice. To show malice, you have to prove that the false statements about you were made with knowledge that they were false or with reckless disregard for the truth. This requirement to prove malice means that a person who is a public figure bringing a defamation suit has a more difficult burden of proof than would a person who is not a public figure.Aÿ

The U.S. Supreme Court has reasoned that public figures who are involved in matters of public concern oftentimes have to endure vigorous and contentious debate, and that free discourse over matters of public concern (a good example being politics) is more important in our democracy than the potential damage to the reputations of public figures.

That said, this leads us to the tale of two public figures, which concluded in Richmond in February. There is a third public figure, Sen. John McCain, who is part of the tale but is not one of the two key public figures.

The first key figure is Vicki L. Iseman. She was and is a publicly registered lobbyist who works out of northern Virginia, who has lawfully lobbied Sen. McCain on behalf of her client. The second public figure is Rodney A. Smolla, Iseman's chief counsel, who is well-known to the public as an authority and scholar on the First Amendment. Smolla is former dean of the University of Richmond Law School and is now dean of the Washington and Lee University School of Law. Dean Smolla is also on the board of directors of Media General, which owns The Richmond Times-Dispatch. A board of directors election is to be held on April 23.

On Dec. 30, 2008, Smolla filed a law suit in U.S. District Court in Richmond against The New York Times on behalf of Iseman. The defamation alleged by Iseman in the lawsuit is based on an article published in The New York Times on Feb. 21, 2008, wherein the Times reports that some of McCain's campaign advisers were “convinced the relationship had become romantic” and attempted to block Iseman's access to McCain. In her lawful capacity as a publicly registered lobbyist, Iseman had lawful discussions with McCain who was chairman of the Senate Commerce Committee in 1999 when was a major or leading contender for the Republican Party's nomination for president of the United States.

One of Ms. Iseman's clients, Paxson Communications, was the subject of conversation between McCain and her as a lobbyist for Paxson. In February 1999, both Senator McCain and Ms. Iseman flew to Washington, D.C., on the corporate jet of her client, Paxson Communications.Aÿ

Ms. Iseman alleged in her suit that The New York Times article implied or insinuated an untrue, nonprofessional relationship between her and McCain, causing “damage to Ms. Iseman's reputation [which] lead to a corresponding deterioration of her internal mental, emotional and physical health. …Aÿ Ms. Iseman suffered intense and severe emotional, psychological, and medical distress and damage as she experienced the destruction of her reputation, identity and sense of self-worth,”Aÿ her suit alleged. She sought $27 million in damages.

Dean Smolla took the position for Iseman in her suit that she was a private rather than a public figure, and so she needed to prove only negligent, rather than malicious, reporting by The New York Times to win her defamation claim. The New York Times has steadfastly maintained that she was a public figure, and that her activities as a publicly registered lobbyist were a matter of public interest. And so the stage was set for a mammoth battle between Iseman and The New York Times involving the pivotal issue of whether Iseman was a private or public figure.

Like March, Iseman came in like a lion and went out like a lamb. On Feb. 19, 2009, she dropped her lawsuit against The New York Times. How much money didAÿ Smolla obtain for his client who had sought millions? Apparently not a penny. The New York Times never changed its position that Iseman was a public, not a private figure, and that her professional lobbying activity with McCain was a legitimate matter of public concern.

Smolla has been quoted as saying, “it is always in the public interest when the parties can sit down and reasonably resolve a matter without going through the drain and strain of litigation.”Aÿ A joint statement by Iseman and The New York Times issued on Feb. 20, 2009, said that the Times did not intendAÿ (by implication, insinuation, or otherwise) to conclude that she had engaged in a nonprofessional or unethical conduct with McCain. There is no evidence that either she nor McCain did so.

Could Smolla have reached such a resolution with the Times much earlier?Aÿ Why was it necessary to file a complaint in federal court alleging that she had sustained horrendous damage to the tune of $27 million? Smolla described his efforts as seeking responsible journalism, but responsibility is a two-sided coin. Smolla surely was aware that, as theAÿ Supreme Court has established:Aÿ “More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues …Aÿ such persons assume special prominenceAÿ in the resolution of public questions.”Aÿ

How could Smolla assert that Iseman, as a publicly registered lobbyist in lawful contact with McCain on behalf of one of her clients, was not a public figure engaged in lobbying activity that was of legitimate public interest? Why did she drop her suit when she apparently received not one penny for the alleged damage she sustained?

Iseman has continued in her lawful publicly registered lobbying activities, then and now. The First Amendment remains alive and well, as it was before Dean Smolla made his appearance in the matter.

Jay J. Levit, a Richmond attorney who specializes in labor and employment law, is a graduate of Harvard Law School and is listed in the annual Best Laywers in America peer-review publication.


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