Fair use includes responding to your critics on issues of compelling public interest, and that includes whatever media they make their points with. The balance is "what is in the public interest" balanced against "what are the property rights of the owner." Since the article goes to his state of mind, which is clearly belligerent within the photo, they are probably within their rights.

Another part of that though is how aggressive the rights holder is. This is why on the one hand, any evening on CNN you can see blurry video with the words TMZ watermarked across it. On the other hand, nobody dares mess with New York Times content, as it's well known they aggressively go after everyone full tilt who excerpts their content beyond their strict, and well publicized, fair use guidelines.