As background, it's worth noting that Dean has previously suggested that, despite the legal obstacles to a public official's winning a libel suit, it's by no means impossible if the defamation is blatant enough. As the title of this previous Findlaw article suggests, Dean thought Kerry should have sued the Swift Boat Liars for Bush over their smears in 2004: The New Book Attacking Kerry's War Record: How It Defames the Candidate, and Why He Should Sue 08/31/04.
If I'm reading Dean correctly, he thinks that the Times should not have published the story based only on the information in the article. And that it doesn't document the suggested affair, only introduces it by innuendo. He notes that "I believe it is quite clear that the story suggests a sex-for-favors-relationship - albeit one that is denied by both Iseman and McCain in the story." Since that's very obvious, I assume in the context that what Dean is saying is that it constitutes innuendo in the legal sense that it could be considered defamatory.
And he states his concern about the wide latitude that people have ...
... to publish lying crap about public figures:
The conflict I feel comes from personal experience. I have great empathy for any public figure who is unfairly attacked by any segment of the American media, because I have been there, and I know how difficult it is to keep one's detractors honest. The American media (and those who know how to employ it) can easily hide behind laws that enable them to publish misleading - not to mention false and defamatory - information with near impunity about public people. Thus, I know well that officials like John McCain confront a body of law that is stacked against them if they seek to use the courts to right a wrong, or to find a remedy for hurt and damages, from a published story.
Having said all that, he makes the following argument:
The innuendo is that McCain's inappropriate behavior consisted of keeping company with an attractive female lobbyist three decades his junior while providing senatorial assistance to her clients. As I read this, the Times is suggesting - but not saying - that this was a sex-for-favors relationship. If that is true, McCain's presidential bid is over. If it is false, then both McCain and Ms. Iseman have been unfairly charged, if not badly damaged.
This is my biggest point of disagreement with Dean in this article. I don't think McCain's Republican supporters care about whether they were having an affair, whether it was "sex-for-favors" or just plain sex. Or maybe even true love. Nor do I think it will directly affect the attitudes of other voters. This kind of thing is damaging because it puts enormous personal pressure on the candidate and can disrupt family relationships. But the influence of Republican segregationists on the style of our politics have been so large that I doubt seriously whether we can confidently say that it affects votes in that way.
On the other hand, I think what Dean is mainly saying there is not a political science judgment, but a legal point that the potential harm gives McCain grounds to sue, despite the high hurdle that public officials have to jump to win a libel suit. Taking note of what McCain's attorney in the matter, Bob Bennett (brother of Gamblin' Man Bill Bennett and also an attorney of Bill Clinton's during his Presidency), has said publicly about those difficulties for a public official, Dean writes:
We have courts to resolve these matters, and if the charge is false, the parties should take appropriate action. In fact, a failure to take appropriate legal action suggests that there may well be more here than has been reported.
If this charge of sex for favors is untrue, then McCain can slide through this with no serious problems, for it will get buried in succeeding news cycles. But if it is true, and he did have a sexual relationship with this woman, then his wife Cindy may soon be the next senator from Arizona, and John will be an aging bachelor who will not be living in the White House. ...
If Ms. Iseman is sincere in her denial, moreover, then she does not have the same problems as McCain. She is not a public figure and she is not running for president. This surely is not a story that will help her career as a lobbyist. To the contrary, she might find her job has been made impossible because of this adverse publicity. In fact, it strikes me that in many ways she has been damaged more than McCain. Yet there is no indication she plans to take any action against the Times.
In sum, it seems that both parties' denials to the Times story are even weaker than the story itself, which give the story added credibility. Unless the Times or another news organization drops another shoe, or McCain and Iseman take no action to protect their reputations, then this highly suggestive story and these weaker responses will no doubt soon vanish. I can understand McCain's taking that route, but I cannot understand Iseman's current position (as I write this, she is hiding from the news media), if she has in fact been falsely charged. Or perhaps she is talking to a lawyer right now. (my emphasis)
I've made no secret about my low opinion of the great Maverick McCain.
But if McCain and/or Iseman sue the Times over this story and win, it really is what the Times deserves in this case.
Dean's argument raises some obvious questions, whose answers I will (mostly) leave for him, such as, does Dean think Kerry is guilty of what the Swift Boat Liars accused him in 2004 because he never sued them? The answer seems pretty obvious to me on that one: unlike the innuendo in the New York Times McCain article, inappropriate though it was for the badly-broken Times to publish it, the Swift Boat Liars' claims were blatantly bogus, and Kerry's post-election release of his military records reinforced that fact. Or, as Dean put it in the linked 2004 article, "The book doesn't mince words. It accuses Kerry of a number of crimes: fraud, lying before the Senate, filing false reports, dereliction of duty, desertion, and treason - to mention only a few."
Also, isn't Dean suggesting a kind of "where there's smoke, there's fire" reasoning for McCain, i.e., doesn't the fact that he isn't suing show he's guilty? I'll leave the answer to that one to Dean himself, because I tend to think that the answer is "yes".
