Jury Awards $3 Million in Defamation Case Against Rolling Stone Magazine

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 26, 2016

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Scales of JusticeA University of Virginia administrator won a $3 million verdict in her defamation lawsuit against Rolling Stone magazine. A Rolling Stone article entitled “A Rape on Campus” was critical of Nicole Eramo, who was serving as the school’s associate dean of students when the article was published. The jury returned a damages award of $2 million against the story’s author, Sabrina Rubin Erdely, and assessed another $1 million against Rolling Stone and its parent company.

The Rolling Stone Article

Erdely’s story focused on a student she identified as Jackie. The story asserted that Jackie was brutally raped by seven men at a Phi Kappa Psi party.

The story made national headlines, prompting the University to suspend its fraternities and to reassign Eramo. According to Eramo’s attorney, the story unfairly portrayed Eramo “as trying to sweep Jackie’s sexual assault under the rug in order to protect the university.” The attorney told the jury that the story made Eramo appear “odious, infamous or ridiculous.” Eramo received hate mail and watched protestors demonstrate against her outside her office.

The story also prompted a police investigation. The police discovered that there was no fraternity party on the night that Jackie claimed to have been assaulted. Jackie apparently invented her story as part of an elaborate scheme to spark the romantic interest and sympathy of another student by inventing a fictional suitor and then blaming him for instigating a gang rape.

After the police investigation concluded that Jackie had not been sexually assaulted, Rolling Stone retracted the article. Eramo, however, was removed from her position as Associate Dean of Students and assigned to an administrative position. Eramo told the jury that she “lost her ability to pursue her life’s work as a sexual assault prevention advocate” and that her professional credibility was damaged by the article.

Defamation and Actual Malice

The First Amendment to the United States Constitution protects the right to publish news stories. It does not protect the malicious publication of falsehoods that harm reputations. A gray area between the extremes of publishing the truth and maliciously publishing a lie has been filled with Supreme Court decisions that distinguish between ordinary people and public figures.

Anyone who is defamed can sue for damages. A defamatory statement is a false statement of fact that purports to be true and that causes harm to the subject of the statement after it is communicated to others. In most states, when the subject of the statement is not a public figure and the statement concerns the subject’s private actions, the author or publisher of the statement can be held responsible if the defamatory statement was made negligently. In other words, if a reasonable person would have investigated and learned the truth before communicating the statement, the careless failure to do so is enough to create liability.

To protect the right to discuss matters of public importance without fear of being sued, the Supreme Court applies a different standard when the subject of the statement is a public figure. Elected officials are public figures, as are celebrities. Ordinary people can become public figures if they become embroiled in a public controversy. The judge in Eramo’s case decided that she became a public figure in the controversy surrounding Jackie’s alleged rape.

When the person claiming to be defamed is a public figure, that person must prove that the publication acted with actual malice when it published false statements. For the purpose of defamation law, the term “actual malice” means that the author or publisher knew that the statement was false or recklessly disregarded the possibility that the statement was false. A negligent failure to investigate the truth does not establish actual malice. Recklessness generally requires proof that the author or publisher had serious doubts about the statement’s accuracy but published it anyway.

Jury Finds Actual Malice

Satisfying the actual malice standard can be difficult. Most media defendants win lawsuits when the actual malice standard applies. When they lose, the jury’s verdict is often overturned on appeal.

The jury determined that Erdely acted with actual malice. The jury concluded that the evidence in support of that conclusion was clear and convincing. For example, Erdely’s story implies that three witnesses corroborated Jackie’s claims. In fact, Erdely did not interview the witnesses, although she quoted them in the article. Two of the witnesses testified at trial that they knew Jackie’s story was inaccurate — something Erdely would have learned if she had interviewed them.

Eramo’s attorney argued that Erdely was an agenda-driven reporter who didn’t care about the facts. A government investigation had criticized the University of Virginia for its failure to protect students from sexual assaults, making the University a tempting target for an article that examined sexual assaults on campus from the perspective of a survivor. According to Eramo’s attorney, Erdely blindly accepted Jackie’s story because it served her purpose to do so.

Eramo’s attorneys presented evidence that Erdely had a predetermined notion of what her story would be, discussing the concept of the story that became “A Rape on Campus” well ahead of her reporting, including a note describing how college administrations can be “indifferent” to rape survivors. The attorneys said that Erdely had “a preconceived story line” and acted with reckless disregard by ignoring conflicting information in her reporting.

Rolling Stone has a contractual obligation to pay Erdely’s share of the damages award. Whether Rolling Stone will appeal is unknown. Although appeals of defamation verdicts are often successful, the evidence of Erdely’s reckless indifference to the truth is particularly compelling, and the verdict may well withstand appellate review.

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