On Friday 4 November 4, 2016 a Charlottesville federal jury found Rolling Stone magazine liable for defaming Nicole Eramo, the former Associate Dean of the University of Virginia (“UVA”), in its now infamous article “A Rape on Campus”. Eramo sued Rolling Stone and the author of the story, Sabrine Erdely, for $7.5 million in reputational damages.
The jurors handed down their verdict after 16 days of testimony from 12 witnesses, 11 hours of video statements and more than 180 exhibits of evidence.
In November 2014, Rolling Stone published Erdely’s article, relaying the account of the alleged brutal gang rape of Jackie, a UVA student, by members of Phi Kapp Psi, a campus fraternity house.
Shortly after its publication, the article began to unravel. On 5 December 2014, the Washington Post and other news outlets reported a number of discrepancies in the article. The Post relayed the fraternity’s denial that any event took place on the night of the alleged attack. It also revealed that a photo Jackie had shared of her alleged attacker had actually been of someone Jackie knew from high school and who had never attended UVA.
The truth of the story became the subject of national controversy. That same day, Rolling Stone published a note to its readers, addressing the many discrepancies that were being reported. The article was officially retracted in April 2015, following a report on the article by the Columbia University School of Journalism. The report, commissioned by Rolling Stone, called the article an “avoidable” story of journalistic failure. It examined failures in reporting, editing, editorial supervision and fact-checking.
Eramo sued Rolling, citing in her complaint that the article defamed her by claiming that she had intentionally tried to coddle Jackie to persuade her not to report her rape; that she was indifferent to Jackie’s allegations; that she discouraged Jackie from sharing her story with others; that she did “nothing” in response to Jackie’s allegations and that she claimed UVA withheld its rape statistics because “nobody wants to send their daughter to the rape school”. Eramo categorically denied ever making such statements.
Being a resident of the State of Virginia, Eramo brought suit in federal court in Charlottsville, VA, where UVA is located. Virginia state law applied. Rolling Stone would have preferred to be in media-friendly New York with New York law applying.
Virginia defamation law applies two different standards depending on whether the claimant is a public or private figure. While private figures need only meet the standard of negligence, public figures must meet the higher standard of “actual malice”, i.e. show by clear and convincing evidence that the publisher either subjectively knew the allegations to be false or acted with reckless disregarded as to their falsity. Eramo was found by the judge to be a public figure. As such, she had the burden of proving that Rolling Stone had acted with actual malice.
The attorneys for Eramo argued Rolling Stone cast the former associate dean as a villain, portraying her as indifferent to rape victims. Relying on Erdely’s notes, Eramo’s laywers maintained Erdely had preconceived ideas about indifference to sexual assault on campus and recklessly ignored conflicting accounts and facts that did not fit her story. They also argued that Erdely had failed to give weight to Jackie’s changing account, failed to press Jackie to give the name of her alleged attackers and failed to verify Jackie’s account with her friends.
The attorneys for Rolling Stone recognized that a number of mistakes had been made but maintained that these fell short of meeting the exacting actual malice standard (see e.g. Jordan v. Kollman, 269 Va. 569, 581 (Va.2005)) holding that actual malice was not established where defendant’s belief in the truth of the statements made was an honest conviction grounded in good faith). They argued Erdely had no reason to doubt Jackie’s account until December 2014, after the story had been published. Scott Sexton, an attorney for Rolling Stone, told the jurors in his closing statement: “This woman [Jackie] was very good at telling this story. Dean Eramo believed her… Yet we are the ones being tried, in a sense, for having believed her”.
The jury found that Eramo had established by clear and convincing evidence that Erdely acted with actual malice in making most of the allegedly defamatory statements. It found no actual malice however in Erdely’s reporting that the University’s policies in effect affirmed its internal choices not to report complaints to the police or her quoting Eramo as having said “Because nobody wants to send their daughter to the rape school”.
Yesterday (November 7), the jury set the damage award at $3 million, $2 million for Erdely’s actions and $1 million for Rolling Stone. Although the award is less than the $7.5 million Eramo filed suit for, the multimillion dollar judgment reflects the severity of a finding of actual malice in defamation cases. In addition, Rolling Stone still faces a $25 million lawsuit filed by the Phi Kappa Psi fraternity, set for trial next year.
One can expect an appeal by Rolling Stone of the jury verdict, arguing, among other things, that, as a matter of law, the actual malice standard had not been satisfied by clear and convincing evidence.
In its statement after the verdict, Rolling Stone admitted to having “overlooked reporting paths and made journalistic mistakes that we [Rolling Stone] are committed to never making again”. The magazine expressed its hope that its failings would not deflect from the pervasive issues discussed in the article and that reporting on sexual assault cases would ultimately result in better campus policies. Rolling Stone’s managing editor described the failed article as both an “individual” and “institutional failure” and concluded that “[e]very single person at every level of this thing had opportunities to pull the string a little harder, to question things a little more deeply”.
The verdict is a chilling message to newsrooms, where the actual malice defense is often viewed as an impenetrable shield. Journalists entrusted with the already difficult task of interviewing victims of alleged sexual assault are reminded of the fine line between respecting a source and exposing a publication to liability. The verdict, moreover, comes in the chilling wake of the Gawker privacy case, in which former pro wrestler Hulk Hogan won a $140 million verdict against Gawker, forcing the online media company to file for bankruptcy and close its doors this summer for good (the initial verdict was settled last week for $31 million).
For our European and British counterparts following these developments from their more claimant-friendly defamation and privacy jurisdictions, these decisions perhaps come as little surprise. They sit uneasily, however, in the land where the First Amendment is sovereign. It remains to be seen whether publishers will heed to the Columbia School of Journalism’s call for a revitalized consensus in newsrooms “old and new” about what best journalistic practices entail.
Alexia Bedat is an associate at Klaris Law PLLC in New York.