First Amendment lawyer represents libel plaintiff vs. Times

Wednesday, January 7, 2009

Vicki Iseman’s legal team is getting almost as much attention as her $27 million libel suit against The New York Times.

Iseman, a Washington lobbyist, was the subject of a Feb. 21 article in which the Times, using anonymous sources, reported that aides to Sen. John McCain tried to distance McCain from Iseman in 1999, fearing the two had become romantically involved. In her lawsuit, Iseman claims the newspaper damaged her reputation by falsely implying that she had an affair with McCain.

Iseman, who filed her suit in the U.S. District Court for the Eastern District of Virginia on Dec. 30, is represented by Richmond, Va., litigator W. Coleman Allen Jr. and by Rodney Smolla, a First Amendment expert and dean of the Washington and Lee School of Law. Smolla’s involvement in the case has raised eyebrows, as he has written and lectured extensively in support of First Amendment rights.

Smolla also is a member of the board of directors of Media General Inc., which owns the Richmond Times-Dispatch, the Tampa Tribune and several other newspapers.

Smolla, however, says he does not believe his representation of Iseman betrays First Amendment freedoms.

“I look at the issues on a case-by-case basis,” he told Jeff Jeffrey of Legal Times. “There are times when the better societal benefit is struck on the side of the press, and there are times when the better societal position is struck on the other side. But when a journalist crosses the line and damages an individual’s reputation and the integrity of public discourse, it is appropriate for the legal system to provide redress.”

Iseman’s case is not the first time Smolla has challenged First Amendment defenses. In 1996, on behalf of families of three murder victims, Smolla sued the publisher of Hit Man, a book that was essentially a how-to murder manual, and successfully defeated the publisher’s claim that the book was protected by the First Amendment.

In 2005, Smolla wrote favorably of a jury’s conviction of Muslim scholar Ali al-Timimi on criminal conspiracy and related charges, despite the claims of some that al-Timimi’s statements supporting the 9/11 attacks were, although offensive, protected by the First Amendment. Even the judge in al-Timimi’s case was concerned that the verdict was based in part on anti-Muslim paranoia. “And that which is exploited today to persecute a single member of a minority, Judge Leonie Brinkema said during the sentencing hearing, “will most assuredly come back to haunt the majority tomorrow.”

Smolla, however, argued that al-Timimi’s conduct had crossed the line between speech and action and that he had “genuinely intended to encourage, incite, and facilitate terrorism.” In making this argument, Smolla acknowledged his life-long effort to find the boundaries of First Amendment protection.

“I have spent a fair part of my professional life as a lawyer and legal scholar,” Smolla wrote, “struggling to identify the appropriate balance between our national commitment to freedom of expression and the necessity that society be empowered to ensure order and the rule of law.”

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