Category: The Opinionsphere

Categories
Politics The Opinionsphere

Defending Caroline Kennedy

Maureen Dowd defends Caroline Kennedy:

Congress, which abdicated its oversight role as the Bush crew wrecked the globe and the economy, desperately needs fresh faces and new perspectives, an infusion of class, intelligence and guts.

People complain that the 51-year-old Harvard and Columbia Law School grad and author is not a glib, professional pol who knows how to artfully market herself, and is someone who hasn’t spent her life glad-handing, backstabbing and logrolling. I say, thank God.

The press whines that she doesn’t have a pat answer about why she wants the job. I’ve interviewed a score of men running for president; not one had a good answer for why he wanted it…

I know Caroline Kennedy. She’s smart, cultivated, serious and unpretentious. The Senate, shamefully sparse on profiles in courage during Dick Cheney’s reign of terror, would be lucky to get her.

Categories
Law National Security Politics The Opinionsphere

A Double Standard (cont.)

Glenn Greenwald, as always, over-the-top and on point:

That’s America’s justice system in a nutshell:  the President who deliberately and knowingly violated our 30-year-old law making it a felony offense to eavesdrop on Americans without warrants has the entire political and media class eagerly defend him against prosecution.  Those who enabled him – in both parties – block investigations into what was done.  Ruth Marcus and Cass Sunstein and friends offer one excuse after the next to justify this immunity.  But the powerless and defenseless – though definitively courageous – public servant who blew the whistle on this lawbreaking is harassed, investigated, and pursued by the DOJ’s Criminal Division to the point of bankruptcy and depression, while the lawbreakers and their enablers stand by mute and satisfied.

Categories
National Security Politics The Opinionsphere The War on Terrorism

A Double Standard

[digg-reddit-me]From Michael Isikoff’s profile of Thomas Tamm in Newsweek:

Tamm’s story is in part a cautionary tale about the perils that can face all whistleblowers, especially those involved in national-security programs. Some Americans will view him as a hero who (like Daniel Ellsberg and perhaps Mark Felt, the FBI official since identified as Deep Throat) risked his career and livelihood to expose wrongdoing at the highest levels of government. Others—including some of his former colleagues—will deride Tamm as a renegade who took the law into his own hands and violated solemn obligations to protect the nation’s secrets. “You can’t have runoffs deciding they’re going to be the white knight and running to the press,” says Frances Fragos Townsend, who once headed the unit where Tamm worked and later served as President Bush’s chief counterterrorism adviser. Townsend made clear that she had no knowledge of Tamm’s particular case, but added: “There are legal processes in place [for whistle-blowers’ complaints]. This is one where I’m a hawk. It offends me, and I find it incredibly dangerous.”

As Hilzoy points out, Townsend was one of the people responsible for making sure that the whistle-blower process worked for Tamm:

Saying that whistleblowers ought to work within the system without adding “if the system is in fact functional” is odd in itself. But saying that when you are one of the people who could have helped to make it functional amounts to saying: well, I and my colleagues have failed to do our jobs, but never mind that: we should expect whistle-blowers to work within the system, even if our own failure means that they have no reason to believe that doing so will actually accomplish anything other than the destruction of their careers.

In a CNN appearance attacking Scott McClellan when he released his book, Townsend seemed to make the exact opposite point of Hilzoy – suggesting that career destruction is the price you must pay:

You know, if there’s policy issue that you think violates your personal values or your integrity and ethics, you do have an option. You can voice it and if you lose, you leave.

Which is probably why Townsend was relieved to have been deliberately marginalized on sensitive national security issues by Vice President Cheney and his staff while she served as a counter-terrorism adviser. (Her very appointment was also opposed by Scooter Libby and was apparently somehow tied in to the Valerie Plame leaking.)

The great irony is the clear double standard applied by people like Frances Fragos Townsend to condemn only those who politically opposed them for acting as renegades who take the law into their own hands thereby violating solemn obligations to protect the nation and its values while giving other a free pass. Yes – Thomas Tamm, a lone individual with few powers, unable to affect what he believed to be flagrant law-breaking (and what later events have proved to be at minimum felony crimes), took it upon himself to protect the Rule of Law, thus breaking one law to uphold the many. And yes – George W. Bush, the most powerful man in the world, unwilling to concede that his powers had limits when he feared bad things would happen, broke many laws and ordered many more laws to be broken, to such a degree that he challenged the very concept of limits on the executive itself, corrupting the entire system that was designed to check his powers. Both men broke the law to protect America.

One man corrupted the system designed to check him; the other took on that corrupted system. Yet Townsend – and many like her – argue that the petty criminal who broke the law (for the common good) should be prosecuted while the master criminals who broke many laws (for the common good) should not be. This demonstrably creates two classes under the law – those above it and those subject to it.

John Adams described the definition of a republic as “a government of laws and not of men.” Thomas Paine declared in Common Sense that “in absolute governments the king is law, [while] in free countries the law ought to be king; and there ought to be no other.” It is this fundamental American principle which Frances Fragos Townsend and other Bush administration apologists attack when they insist that only the dissenters and the powerless be punished for breaking the law.

Categories
Israel Politics The Opinionsphere

The Dynamics of Moral Outrage, Group Hatred, and Violence

[digg-reddit-me]Reem Al Ghussain, an English teacher at Al-Azhar University in Gaza in the Guardian:

[My children] ask me: “Why are the Israelis doing this to us?” My child in fifth grade asks me: “What did we do to them?” I tell them that they want to take our land and they want all Palestinians to die.

It is this attitude, this indoctrination that passes down hatred and a sense of the ‘Otherness’ of the enemy from parent to child, that is at the root of so many long-simmering conflicts. As Glenn Greenwald wrote, channeling George Orwell:

If you see Palestinians as something less than civilized human beings:  as “barbarians” – just as if you see Americans as infidels warring with God or Jews as sub-human rats — then it naturally follows that civilian deaths are irrelevant, perhaps even something to cheer.  For people who think that way, arguments about “proportionality” won’t even begin to resonate – such concepts can’t even be understood – because the core premise, that excessive civilian deaths are horrible and should be avoided at all costs, isn’t accepted.  Why should a superior, civilized, peaceful society allow the welfare of violent, hateful barbarians to interfere with its objectives?  How can the deaths or suffering of thousands of barbarians ever be weighed against the death of even a single civilized person?

So many of these conflicts – one might say almost all of them – end up shaped by the same virtually universal deficiency:  excessive tribalistic identification (i.e.:  the group with which I was trained to identify is right and good and just and my group’s enemy is bad and wrong and violent), which causes people to view the world only from the perspective of their side, to believe that X is good when they do it and evil when it’s done to them.  X can be torture, or the killing of civilians in order to “send a message” (i.e., Terrorism), or invading and occupying other people’s land, or using massive lethal force against defenseless populations, or seeing one’s own side as composed of real humans and the other side as sub-human, evil barbarians.

As Bill Bishop described in Slate the tendency of groups to polarize towards extremes (in the context of the Palin rallies in the news then):

We are constantly comparing our beliefs and opinions to those of the group. There are advantages to being slightly more extreme than the group average. It’s a way to stand out, to ensure others will see us as righteous group members.

“It’s an image-maintenance kind of thing,” explained social psychologist Robert Baron. Everybody wants to be a member in good standing, and though it sounds counterintuitive, the safest way to conform is to be slightly more extreme than the average of the group.

Cass Sunstein, a law professor and adviser to Barack Obama, described how this dynamic works in a social setting as a preface to his discussion of “leaderless jihad“:

A few years ago, Daniel Kahneman, David Schkade, and I were involved in several studies of punitive damage awards by juries. We began by asking one thousand or so demographically diverse people to register their judgments about misconduct by various wrongdoers. We asked them to rate their moral outrage on a scale of zero to six, where zero meant “not at all outrageous” and six meant “exceptionally outrageous.” We also asked them to come up with an appropriate dollar award…

[As our] goal is to understand how juries really behave – or more ambitiously, how outrage develops in the real world…we conducted a follow-up study, involving about three thousand jury-eligible citizens and five hundred deliberating juries, each consisting of six people. Here is how the experiment worked. Every juror read about a personal injury case, including the arguments made by both sides. Jurors were also asked to record, in advance of deliberation, their individual judgments on a bounded numerical scale, and also in terms of dollars. Next they were asked to deliberate together to reach a verdict, both on the bounded scale and on the dollar scale. Our goal was to discover the relationship between people’s individual judgments, in advance of deliberation, and the ultimate views and actions of group members who have discussed the matter.

You might predict (as I did) that deliberation would lead to compromise, and hence that the verdicts of juries would be pretty close to the median of punishment judgments of jurors; but your prediction would be badly wrong. It turned out that the effect of deliberation was to create a “severity shift.” When people began with a lot of outrage, their interactions made them significantly more outraged than they were before they started to talk. And with dollar awards, the severity shift was especially large. The ultimate award of juries was usually higher than the award favored by the median juror in advance of deliberation. In many cases, the jury ended up with an award at least as high as the highest award favored, in advance, by any of the jury’s members.

Sunstein connects this experiment of moral outrage and social dynamics to Marc Sageman’s “Leaderless Jihad”:

Drawing on the data, Sageman offers an arresting conclusion, which is that a major explanation of Islamic terrorism lies in patterns of social interaction that transform moral outrage into extremism. In his account, terrorists are not mentally ill, poor, uneducated, sociopathic, or victims of trauma. In the main, they are ordinary individuals who move to radical positions as a result of discussions with like-minded others. Sageman focuses in particular on the rise of what he calls “global Islamist terrorism” – a large and loosely organized social movement that is subject to no command-and-control structure and has prospered in the wake of the invasion of Iraq. What makes Sageman’s account distinctive is his emphasis on the crucial role of social networks – in the real world and on the Internet – and his effort to show that an understanding of those networks has significant and sometimes counterintuitive implications for how to safeguard national security. At the same time, Sageman offers general lessons about how enclosed enclaves of like-minded types help produce political beliefs and action of many kinds, including violence.

This same dynamic plays out on many different scales in our society and in societies around the world, with differing levels of ferocity. How a society deals with this dynamic helps determine it’s stability, or lack. One of the ways to address this issue seems to be dialogue and communication among polarizing groups – and friendships between these groups – a principle which Obama, to his credit, has often stood for. As Americans increasingly clustering and moving into areas in which they are ideologically comfortable, as they tend to find media outlets that cater to their ideological preferences and ignore as biased those media sources that do not, we are moving away from those aspects of American society that have tamped down extremism and encouraging this dynamic of polarization.

At the same time, we shouldn’t overstate things about American polarization. It’s hard to believe we are close to the point that Russian academic Igor Panarin is predicting – that America will break into six seperate parts [map]. Much more significant is the extent to which this dynamic plays out amongst Muslim populations that are trending towards extremism and in the Israeli-Palestinian conflict – as these situations demonstrate extremely heightened forms of this dynamic. Without understanding this dynamic, we can never address the root of these issues – and we will be tempted to respond without adequate reflection.

Categories
Domestic issues Economics Energy Independence Financial Crisis Green Energy Humor Politics The Opinionsphere

Eliot Spitzer v. Sarah Connor

Eliot Spitzer has some good ideas about how to spend the stimulus money, including this technology which I’d heard of but not understood until reading:

[Smart meters] would permit, with a smart grid, time-of-day pricing for all consumers, with potentially double-digit reductions in peak demand, significant cost savings, and consequential remarkable energy and environmental impacts. These declines in peak demand would translate into dramatic reduction in the number of new power plants. The problem with installation of smart meters has been both the cost and, often, state-by-state regulatory hurdles. Now is the moment to sweep both aside and transform our entire electricity market into a smart market.

However, Spitzer has another more controversial proposal which Matt Yglesias fears will lead to the end of the human race, “Provide funding for robotics teams at every school. Yglesias:

After the human race is enslaved by robots, there are going to be small rebel groups hiding out somewhere and Elliot Spitzer’s going to be writing op-eds about how “no one could have predicted” that the robots would rebel and overthrow their masters. And it’ll be left to DFH bloggers to observe that this is in fact one of the most widely predicted scenarios in all of science fiction. From the proto-SF of Mary Shelly’s Frankenstein through to Karel Capek’s R.U.R. and The War Against the Newts all the way up through Terminator and The Matrix. Yes, yes, yes eventually the Butlerian Jihad will allow us to re-overthrow the Thinking Machines and establish human rule but do we really want to fall into that trap?

Just say no to robots. And certainly say no to robots in our schools.

You just know that Spitzer – for promoting this idea – would be on Sarah Connor’s hitlist.

Categories
Foreign Policy Israel Politics The Opinionsphere The War on Terrorism

Israel and Hamas

The furious positions of many people on this issue leave me with the feeling that I should take a definitive side. Sometimes, you must stand up and be counted – or become irrelevant. But on this issue, I have yet to hear any passionate argument that is convincing. The best arguments are microarguments, winning some small points. The best writers on this issue are reflective and nuanced, avoiding becoming apologists for either side. I have entered into arguments in which I have felt myself being alternately tugged to justify the worst actions of either Israel or the Palestinians – which I don’t want to do. Neither side has clean hands – but it is also not fair to create some kind of moral equivalence. What is needed is that rarely appreciated virtue, nuance.

In that spirit, here’s a selection of reflective takes on the current situation:

Yglesias:

By somewhat the same token, I do read in the comments section what I would regard as a disproportionate level of shock and appalledness from some quarters about Israeli activities as if this action is some kind of unprecedented outrage in human history. The real outrage is how common and banal, how unsurprising and thoroughly precedented it is.

Andrew Sullivan:

In the history of the West, the laws of war are clear enough. You do not launch a just war if it leads to greater evils than the status quo ante. There must be a reasonable proportion between means and ends. Both sides should be able to acknowledge common human values, even as they fight over territory or ideology. And yet Hamas has never done this; has no capacity for abiding by even minimal moral norms, believes it has a moral responsibility to eradicate the Jewish state, and certainly finds the universalist and liberal moral law embedded in Western and largely Christian culture meaningless outside Islamic hegemony. Israel, for its part, is on a different moral plane than Hamas. Its internal critics write op-eds; they are not taken out and shot. But, in the face of what is, essentially, a 60 year war against enemies on all sides and within, it has long since disappeared down the self-reflecting mirrors of survivalist logic and existential panic. It looks to me like a society in danger of losing its sense of restraint to the logic of violence. It is lashing out because it feels it can do no other and senses its long-term survival at stake. Even if violence does not solve the problem and may make it worse, war can seem a better option now than disappearing passively in the next couple of decades. The stunning near-unanimity of Israelis behind the Gaza attack is proof of this. In Israel, it seems, it is always America in 2002.

Carlo Stenger:

I have been a very outspoken critic of Israeli policies for many years. Nevertheless, those who…go into endless diatribes to ascribe sole responsibility to Israel for the current situation are hypocritical at worst and ignorant at best. In this age of political correctness it is always sexy to support the underdog. But political correctness does not always yield wise political judgment

Categories
Economics Financial Crisis The Opinionsphere

The Financial Crisis as a Bawling Baby

Adam Gopnik in The New Yorker:

Far from adjusting our expenditures to the needs of the moment, it seems, we tend to wildly overswing, according to our mood. The difference between the provident ant, who cautiously saves up for winter, and the carefree grasshopper, dancing and hopping, is a matter of what Keynes called “animal spirits.” It is better for the common lot if each of us is a hopper (and a shopper) rather than a hoarder. Being a nation of grasshoppers is allied to being a nation of hope.

That bit reminds me of one of the most insightful things written in the midst of the opening panic in September, this blog post by Megan McCardle about some cognitive errors that contributed to the crisis. But then Gopnik takes a very different route than McCardle, bringing the financial crisis to life by invoking a holiday classic:

In “It’s a Wonderful Life,” George Bailey’s Building & Loan is, let us recall, the reckless banker of Bedford Falls, giving what would now be called subprime mortgages to people like Mr. Martini, who would be better off renting. And it is mean, miserable old Mr. Potter who berates Bailey for the practice. “And what does that get us?” Potter asks. “A discontented, lazy rabble instead of a thrifty working class.”

Gopnik sees value in both George Bailey’s and Mr. Potter’s views – with George calling on people to sacrifice for the greater good and Potter acting in his own selfish interest and assuming others will as well. (Another recent column I read – somewhere – pointed out that the dystopia of Pottersville would have survived the industrial decline of upstate New York much better than the Bedford Falls George Bailey protected.)

But for Gopnik – as for Caldwell, and as for most observers – the crisis demonstrates the fickleness of the market itself, and the extent to which it is dominated by what an economist might have once called “animal spirits”:

An economy is not a rational model; it’s an emotional muddle. It depends on how you feel about your neighbors, about next year’s hopes, and about Mr. Martini. Which is why another new President once warned against fearing fear, and why the only thing that can cause us to panic now is panic. There is something faintly encouraging, just barely hopeful, in the human familiarity of the counsel being given by the Keynesian economists. For what they are telling us is just what the parent, in that long bad moment, wishes for the child: Take a deep breath. Look at the ornaments! Don’t cry.

Categories
Criticism Law Politics The Opinionsphere

Yes, the Senate Can Refuse to Seat Roland Burris

[digg-reddit-me]Ever since Governor Blagojevich announced his appointment of Roland Burris to take Obama’s Senate seat, the Conventional Wisdom has been that while Blagojevich’s actions are unseemly they are within the law – and more importantly, that Harry Reid and the rest of the Senate can’t do anything to stop Burris from being seated. The LA Times opined:

Exasperated as they are at being outfoxed by Blagojevich, his colleagues and critics must face the fact that he is still the governor of Illinois and empowered to appoint an interim U.S. senator. It’s not a pretty situation, but it’s the law.

The Wall Street Journal suddenly discovered the Constitution and the Rule of Law after eight years of amnesia ((That’s unfair. The Journal always remembers to invoke the Constitution when slamming Democrats. It only ignores it when Republicans are acting unconstitutionally.)) and declared that this was a matter of “Harry Reid v. the Constitution,” claiming without equivocation that Blagojevich had “every legal right” to appoint Burris, that the “Beltway Democrats can’t inject themselves into what is clearly a matter of Illinois law,” and finally that:

Nowhere in the Constitution is there a “qualification” saying that a Senator must not have been appointed by an embarrassing Illinois Governor…now that Mr. Burris has been appointed, Mr. Reid can’t legally deny him his seat. If this is the way Democrats are going to use their new monopoly on Beltway power even against a member of their own party, we’re in for an ugly couple of years.

David Gregory, temporarily sans smirk, parroted the same Conventional Wisdom on this morning’s Meet the Press.

This Conventional Wisdom holds that the 1969 Supreme Court case of Powell v. McCormack limits the Senate’s power to take action pursuant to Article I, Section 5 of the Constitition. The Article states:

Each House shall be the judge of the elections, returns and qualifications of its own members…

Powell limited this power by holding that:

In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution.

What the LA Times and Wall Street Journal and David Gregory fail to take into account – whether deliberately or not is unclear – is that the Powell case revolved around the question of whether the Congress could judge the qualifications of a member and exclude him or her for bad conduct while Reid is making his case under the Senate’s power to judge the process by which it’s members are selected or elected. On Meet the Press, Reid said that he didn’t know of anything Burris had done wrong or any qualification he lacked. Rather Reid pointed to the tainted process which lead to Burris’s appointment as the problem. This is an entirely separate issue from the one decided in Powell – in which a duly elected Congressman was denied his seat for misconduct during the previous session of Congress:

Our examination of the relevant historical materials leads us to the conclusion that …the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

The key phrase being “duly elected.” The Senate still has the power to judge the returns and the elections – and this power was not limited by Powell. The corruption of the process leading to Burris’s appointment is also what Reid & co. keep harping on – rather than Burris’s qualifications. An election of a Senator marred by corruption, like a corrupt appointment, is to be judged by the Senate. Akhil Reed Amar and Josh Chafetz explain the history of this power and it’s previous invocations.

If Reid chooses to push this claim of Constitutional authority and refuses to seat Burris, he may well prevail, proving once again John Kenneth Galbraith’s prescience:

The enemy of the conventional wisdom is not ideas but the march of events.

Categories
Criticism Election 2008 Law McCain Politics The Opinionsphere

Looking Through Iseman’s Complaint Against The New York Times

[digg-reddit-me]Yesterday, Vicki Iseman – the lobbyist whose attentions may have had an undue influence on Senator McCain – filed a complaint in the United States District Court for the Eastern District of Virginia, Richmond Division against The New York Times Company, Bill Keller (editor of the Times), Dean Baqet (the Times‘s Washington editor), and the reporters over the allegedly defamatory story published in the Times on February 21, 2008. I’ve posted her complaint (PDF)  for your full perusal.

There are a few assertions in the piece which are questionable. One is that lobbyists have no personal relationships with the people they are lobbying:

The defamatory statements, express and implied, that Ms. Iseman exploited an alleged personal or social relationship with Senator McCain to seek favorable outcomes or improper influence on behalf of clients, are entirely false…Ms. Iseman’s relationship with Senator McCain was not different in kind from the cordial yet professional relationship that hundreds of lobbyists have with hundreds of members of Congress. [¶ 24]

Yet the job of a lobbyist does consist of using personal and social relationships with people of influence to push an agenda. The ISEA for one believes so – as it describes several tips on how to lobby successfully:

The most effective member-lobbyists are those who have developed a personal relationship with their legislators.

Jeff Kros, a legislative director in Arizona, describes why lobbying works in another how-to guide for lobbying:

Personal relationships take the anonymity out of the process.

Kurt Wise writing a scholarly piece analyzing the effect of interpersonal relationships on lobbying efforts suggests that many lobbyists consider these relationships to be “essential” to their success. It is precisely this fact – that to lobby means to use personal relationships and social skills to push an agenda – that has led an informal synonym of lobbyist to be “corporate whore.”

Iseman’s attorneys would be making a more truthful argument if they explained that if Iseman used her personal relationship to push her clients’ agenda, then that isn’t news – as such whoring is the essence of lobbying. The Complaint virtually acknowledges this in ¶27 as it almost concedes that most of the facts cited in the news article are actually true:

Setting aside the heavy emphasis on the allegedly inappropriate romantic relationship between Ms. Iseman and Senator McCain, the article contained no reporting that was new or newly newsworthy.

As the Complaint lists no complaints of the previous coverage – and in fact cites approvingly some of the coverage – it would seem that Iseman isn’t disputing these accounts of how she wooed McCain on behalf of her clients. The legal argument here is that – no one wants to see how politics is played, how influence is wielded, how sausages are made – but that doesn’t make any of the three newsworthy. It may be unsavory to describe all the perks McCain and other influentials are given by lobbyists – but it’s unfair to portray that as a news story, because it’s so common. I think this is one of the stronger points Iseman can make – but as it is demeaning to her profession, she wisely refrains from doing so.

If this piece seems a bit snarkier than usual, then it may be that I’m bitter at the numerous barbs directed against bloggers in the Complaint. For one, the Complaint calls Matt Drudge, the tabloid purveyor of right-wing trash and master of the political universe, a “blogger” and his website The Drudge Report, an “on-line blog” – despite the fact that neither meets any of the basic definitions of either word. Then in ¶42, the Complaint turns poetic – and implicitly defames all bloggers – with this passage:

As days and weeks went by, and the cruel gossip, whispers, blogs, rumors, confrontations, and innuendo about her continued, her despondency over the publication of the article and its impact on her life grew.

There are two issues of law at stake here aside from the basic facts which don’t seem as if they will be substantially disputed:

  • whether or not Vicki Iseman will be considered a private or public individual for the purposes of imposing a standard for defamation;
    (A public individual has a much higher standard to meet when alleging defamation; the public individual must prove “actual malice” on the part of the publisher of the controversial statement.)
  • whether a defense of the truth of every individual statement can hold up against what Iseman considers “defamation by insinuation” and “defamation by lack of complete context.”

Public versus Private

Iseman maintains that she must be considered a private rather than a public person as she “never sought to enter the arena of general public debate” (¶48). Of course, Iseman was attempting to influence the general public debate using her private relationships with public officials, making her actions of considerable interest to the public at large. But even further, it is my opinion that all people who are paid to consort with public officials – prostitutes, hookers, whores, lobbyists, and escorts –  should be considered public figures to the extent of their relationship with the public figure.This applies doubly to those who with “private” debate and use of their personal relationships attempt to affect the public debate rather than just serve as a “companion.” In other words, if Ashley Dupree‘s and Monica Lewinsky’s “companionship” with public figures can be mentioned in a news story, so can Vicki Iseman’s undisputed companionship. We can even call them “voluntary, limited-purpose public figures.”

Defamation by Insinuation

Iseman attempts to charge the Times with defamation based on “what was intentionally suggested and implied “between the lines” (¶16) of the news story. The Complaint later explains that the Times should be held responsible for “how the article was in fact received and understood by readers” (¶18). It strikes me that this is an incredibly slippery slope. The facts cited in the Times article aren’t substantially disputed in the Complaint – only the impression the article left on readers. As the Complaint tries to nail down a defamatory comment from the Times, you can see Iseman stretching, as in this example from ¶20:

The article then engaged in the classic phrasing of gossip and innuendo that two people are having an inappropriate romantic relationship, with the passage: “But in 1999 she began showing up so frequently in his offices and at campaign events that staff members took notice. One recalled asking,  “Why is she always around?” [my emphasis]

Notice that in explaining this specific, the Complaint tries to sidestep the issue it supposedly is trying to prove. While I’ll grant Iseman that the facts cited by the Times piece do suggest she was in an inappropriate romantic relationship with Senator McCain, that’s not the point she’s trying to make with this. Instead, she suggests that the Times is using “classic phrasing of gossip and innuendo” suggesting that they are using some form of commonly understood coded language to convey a clear meaning.  This neatly sidesteps the issue of whether or not the facts reported by the Times are true and tries to assert they are instead a form of code. The problem is that this isn’t a “classic phrasing” of any sort – and seems determined by the facts as understood by the Times reporters. The reporters may have been wrong in what they were implying, but I would think the truth of their statements should be a defense. If the Times reported there was smoke, and strongly insinuated there was a fire, but never stated so – and there was smoke – I don’t think they can be fairly faulted.

All this being said, Courts have recognized defamation by insinuation as a cause of action – although the focus in the jurisprudence has been what a passage was intended to convey rather than how it was “in fact received and understood by readers” as this Complaint discusses. As discussed in White v. Fraternal Order of Police:

[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.

Iseman’s Complaint fails to make this argument, focusing instead on how it was received.

Defamation by Lack of Complete Context

The Complaint also argues that even if Iseman is considered a public figure, the Times was “deliberately and recklessly misleading” indicating “actual malice,” thus meeting the much higher standard of defamation required for a public figure, or a voluntary, limited-purpose public figure. Iseman alleges here that the Times demonstrates actual malice because it failed to place “the statements of the principal source for the article” “in truthful context” (¶44.) This seems to be a higher bar than defamation by insinuation – which considered unstated implications to be actual defamation. In ¶44, the Complaint alleges that a failure to provide an appropriate context for factual statements also consists of defamation. Under this standard, the McCain ad which deceptively uses video of Obama mocking the idea that he is “The One” without contextualizing it to demonstrate Obama’s intent could be considered defamation as well.

Using this extraordinarily high bar, Iseman states that even printing her denial of the unstated allegations didn’t negate entirely the impression readers might have based on the facts reported:

The article did print the fact that Ms. Iseman and Senator McCain had denied any romantic relationship or other inappropriate conduct. These denials, which most readers would understand as “obligatory,” and therefore precisely what Ms. Iseman and Senator McCain would be expected to say, did not negate the defamatory meanings that otherwise pervaded the article…(¶26)

Which again leads this Complaint to be blaming the Times for actions entirely out of it’s control.

Conclusion

Altogether, the Complaint is troubling in how it attempts to hold the Times to an unreasonable standard. If the Complaint’s legal arguments were accepted by a Court, it would have a substantially chilling effect on freedom of the press and free speech. If some magazine or newspaper reported that the President had signed off on a memorandum changing the definition of torture, and American military and paramilitary personnel subsequently tortured prisoners – this could be understood to imply that the President had responsibility for the torture, opening up the reporters and media sources to a possible defamation lawsuit.  But the Courts have enough established precedents in this area that I’m not worried yet. Clay Calvert, interviewed by The Wall Street Journal Law Blog, suggests that the case is unlikely to get to a jury and will probably be settled.

NB – I should give a shout-out to Matt Yglesias for what I think is his first time being cited in a Complaint in Federal Court (¶32) for this blog entry. Congrats Matt!

Also, I’m not trying to defend the Times story here. I tend to agree with Yglesias’s follow-ups to his original post cited in the Complaint. But I think the theme of the Times piece – the insight into McCain’s character that it revealed – stands up:

Even as he has vowed to hold himself to the highest ethical standards, his confidence in his own integrity has sometimes seemed to blind him to potentially embarrassing conflicts of interest.

Continue reading “Looking Through Iseman’s Complaint Against The New York Times”
Categories
National Security Politics The Opinionsphere

Stuck on the Terrorist Watch List

Juan Fernando Gomez in the Washington Post:

It’s not the countless missed connections that bother me or the fact that I have to politely decline offers from well-meaning travel companions to wait for me, because they don’t know that they might be waiting for hours. It’s the powerlessness of being unable to clear my name and of having to go through this humiliation over and over.