Is Rolling Stone about to get throttled in court over UVA rape report?

Three libel cases stemming from Rolling Stone’s now infamous “A Rape on Campus” exposé seem poised to go down in the annals of defamation law. It is hard to think of a story so lurid–including a horrifying account of a brutal gang rape of a first-year student at a fraternity party at the University of Virginia–built on journalistic practices so negligent. The 2014 story was quickly debunked as false, but the legal aftershocks are likely to continue for years.

Just how vulnerable is Rolling Stone? CJR took a look at the state of libel law, reviewed the pending cases, and talked to legal experts on defamation to find out.

Rolling Stone has retracted the story, but it’s not too difficult to imagine a group of outraged Virginia jurors delivering a financial shellacking to the magazine as payback for the unsubstantiated attack on a beloved local institution. Juries elsewhere, including the one that returned an eye-popping $140 million judgment in Hulk Hogan’s invasion-of-privacy lawsuit against Gawker, have shown a willingness to punish media companies.

Rolling Stone’s story, some 9,000 words long, was published on November 19, 2014. Almost immediately, the reporting, by writer Sabrina Rubin Erdely, began to unravel; within a few weeks the story told by a woman the magazine identified only as “Jackie” was revealed to be untrue. While it’s possible something traumatic happened to the student early in her first year at UVA, no evidence has come forward to suggest anything like the violent event described in the story occurred, at the fraternity in question or anywhere else.

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An investigation by the Columbia Journalism School found that Rolling Stone‘s editorial procedures had been flawed virtually across the board. Most importantly, the magazine had largely taken Jackie’s word on what happened that night. It did not speak to her friends for corroboration, or speak to the fraternity forthrightly about what charges the magazine was about to level.

And now Rolling Stone is fighting off three defamation cases. The UVA chapter of Phi Kappa Psi, the fraternity named in the story, filed suit in November, seeking $25 million in damages. Three individual members of the fraternity, who say their reputations were damaged by association, filed suit against the magazine in federal court; that suit has been dismissed and the plaintiffs have not said whether they will appeal. Finally, a UVA administrator, Nicole Eramo, the school’s point person for sexual assault cases, says she was portrayed in an unflattering light in the story and did not say some of the quotes attributed to her. She’s asking for $7.8 million.

So how will the magazine defend itself?

There are two easy defenses against libel that work to the media’s benefit. One is truth, which is in most cases an absolute defense. Rolling Stone has retracted the story and acknowledges that the assault did not occur, so it will not be using this defense. The other is that the allegedly defamatory statements are a matter of opinion. Since the original Rolling Stone story was built on the factual assertion that a gang rape had occurred, that defense will probably not play a part in the fraternity cases, but the opinion defense will probably arise in the suit from the UVA administrator.

But some quirks in the law might provide a way out for the magazine. Libel law is quite plain that a defamatory statement must be shown to be “about” or “of and concerning” the plaintiff. But in the article, no actual members of the fraternity were named. A few nicknames mentioned in the account of the assault–“Armpit” and “Blanket”–are not known to have been used at the fraternity. The fraternity brother who supposedly lured Jackie to a party that night has been shown not to exist; another assailant, whom Jackie had said she’d recognized from a class, has never been identified either.

It will likely be difficult for the fraternity to persuade the court that the article was about it–not because it’s an institution, but because a strong argument can be made that the article’s focus was on the actions of a few individuals and not on the fraternity itself.

 

That is why the case from the three individual fraternity members was dismissed last month. Federal Judge P. Kevin Castel wrote: “The article’s details about the attackers are too vague and remote from the plaintiffs’ circumstances to be ‘of and concerning’ them.”

The second suit is from the UVA chapter of Phi Kappa Psi as a whole. Here, having zigged in the first case, arguing that it had not defamed any individual members of the fraternity, Rolling Stone now has to zag, and argue that the article was about individual people committing rape, but not the fraternity itself.

Virginia libel lawyer Lee Berlik says he isn’t following the case but spoke on Virginia law broadly. “The fraternity … will have to prove that the article was ‘of and concerning’ the fraternity in some defamatory respect,” he writes in an email. “It will likely be difficult for the fraternity to persuade the court that the article was about it–not because it’s an institution, but because a strong argument can be made that the article’s focus was on the actions of a few individuals and not on the fraternity itself. To counter this argument, the fraternity will essentially need to argue that the article stated or implied that a rape took place with the express or implied consent and approval of the fraternity.”

UCLA law professor Eugene Volokh, who has written several articles about the case for the Washington Post website, says Phi Kappa Psi will probably argue that the article implied the fraternity is a dangerous place to go. Says Volokh: “If someone said, ‘[There’s this] bar, people routinely get raped in this bar.’ Is that libel of the bar? You’re not accusing the bar of rape, to be sure, but you are accusing the bar of being a dangerous place that maybe allows dangerous patrons or dangerous employees. And the likely consequence of that is that the bar will lose business.”

Rolling Stone’s article has at least one passage that suggests the (fictional) rape might indeed have been part of a fraternity activity. In Jackie’s description of the assault, one fraternity member hesitates. One of the other fraternity members is said to say, “Don’t you want to be a brother?” Another alleged comment: “We all had to do it, so you do, too.” Both remarks could be seen to imply that the assault was part of a membership ritual at the house.

Additionally, later in the article Jackie is said to have discovered two other women who’d been subjected to group assaults at Phi Kappa Psi. They have never come forward. In its complaint, the fraternity argues that the article implies that such assaults were frequent and perhaps even tolerated there.

The various stories Jackie told reverberate throughout “A Rape on Campus.” While the record is somewhat muddled on this point, Jackie seems to have told friends an alternate story about a group assault, this one involving oral sex; this allegation may have made its way to the university as well. When writer Erdely called the fraternity for comment about a gang rape, the chapter president says he knew only of “fourth-hand” allegations that “something of a sexual nature took place.” To a casual reader, this might seem coldly euphemistic about the gang-rape charge, or evidence of yet another assault associated with the fraternity, when in fact it was just another unsubstantiated story from the same unverified source the magazine had built the rest of its report on.

“That could be either further evidence,” Volokh says. “That could be further defamation. But simply saying bad things happened there, that itself is potentially defamatory.”

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The Columbia Journalism School report called the Rolling Stone debacle “a story of journalistic failure that was avoidable. The failure encompassed reporting, editing, editorial supervision and fact-checking. The magazine set aside or rationalized as unnecessary essential practices of reporting ….”

Note those emphasized words. Most journalists know about the US Supreme Court case on libel, New York Times v. Sullivan, which has been generally been cited in libel actions since it was handed down in 1964. The Sullivan standard is that a private figure alleging libel has merely to show negligence on the part of the publisher. Public figures, however, have to meet a higher standard, what the court called “actual malice,” which was defined as publishing while knowing something wasn’t true, or publishing with reckless disregard for whether something was true or not.

The idea, roughly put, is that a free press will occasionally make mistakes but that, as long as the publication was acting professionally (that is to say, not recklessly) it would, broadly speaking, be free from libel judgments on matters of public import. Less often cited is a caveat: The plaintiff has to show that the publication actually entertained doubts about what it was publishing.

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Former Rolling Stone Managing Editor Will Dana (left) and Reporter Sabrina Erdely (Twitter and LinkedIn)

The reckless disregard standard is generally associated with libel suits from public figures, but the standard also applies when, for example, private figures seek punitive damages on top of basic compensatory damages (i.e., for lost membership fees, a drop in donations and so forth).

The fraternity argues that it should be considered a private figure for the purposes of the suit. If the judge agrees, it should have a strong case in proving the lower standard of negligence. The magazine might argue in response that the fraternity is a public figure–perhaps because it is an important institution on campus and that there is a public benefit to having its actions scrutinized.

Volokh, in an email, writes, “Generally speaking, small- and modest-sized businesses are treated as private figures, despite their role in the community; the same would apply to a fraternity.”

When it comes to damages, the fraternity’s case will be made easier by the concept of “defamation per se,” which is a feature of Virginia law. This refers to allegations that are considered on their face to be damaging, and relieves plaintiffs from having to establish that the defamatory statements caused them actual harm. The traditional examples are accusing the subject of the story of a serious crime, the slightly antiquated notion of acts of “moral turpitude,” allegations of having a serious or contagious disease, a lack of integrity in one’s profession, and the like.

The UVA allegation–about a planned group violent sexual assault on a defenseless 18-year-old–would seem to involve a statement that is “defamatory per se.”

But a large award against the magazine would come only if the plaintiffs can establish the higher “reckless disregard” standard. That will turn on whether there is evidence that the writer or the magazine’s editors had actual doubts about the truth of the story they were preparing.

 

The failure of “A Rape on Campus” was that the magazine failed to interview virtually anyone who might have buttressed, or contradicted, Jackie’s account.

 

“It’s conceivable that the standard was met here,” Volokh says, “if discovery reveals that some editors did think the story was highly improbable. It’s also possible that Rolling Stone really thought this story was true, and if they really believed the story might well be false, they would have seen what was coming and they would not have published.”

Doesn’t that just protect blissful idiots?

“Totally,” he replied. “The more of a fool you are, the more immune you are.”

That said, as Volokh notes in one piece for the Post, the Supreme Court has also found that, for example, a publication’s decision not to interview a key witness could be the “product of a deliberate decision not to acquire knowledge of facts.”

This might give Rolling Stone’s attorneys pause. The failure of “A Rape on Campus” was that the magazine failed to interview virtually anyone who might have buttressed, or contradicted, Jackie’s account. The magazine did not find out the real name of the man Jackie said lured her to the fraternity. It didn’t interview any of her close friends to corroborate what happened when Jackie called them after she left Phi Kappa Psi that night. And while Erdely reached out to the fraternity for comment, she never went over the details of the supposed assault with the house’s president–from whom she might have learned that Phi Kappa Psi hadn’t had a party that night. She didn’t interview any individual members of the fraternity either. 

Look for the plaintiffs to comb through the magazine’s email and editing materials for evidence that an editor expressed doubts about Jackie’s story. The Columbia Journalism School report, while damning, seems to indicate that writer Erdely felt Jackie’s story was credible, and that the editors, however negligently, sincerely put their trust in Erdely.

The third case is from the UVA dean Nicole Eramo. Legally, Eramo is a public official and the matter was something under her professional purview, so she would be considered a public figure.

The allegations against her are of course milder than those against the fraternity. Eramo is not portrayed one-dimensionally. UVA students “laud [her] as their best advocate and den mother” and Jackie is said to frequently call her “an asset to the community.” But that doesn’t mean that other parts of the story might not be defamatory.

Eramo is said in the Rolling Stone piece to have “discouraged” Jackie from sharing her story. In a discussion about why the school doesn’t collect sexual assault statistics, Eramo is said to have remarked, “Because nobody wants to send their daughter to the rape school.”

Eramo’s role in “A Rape on Campus” is complicated by the fact that, as a school administrator, she was bound by confidentiality rules and other regulations involving the reporting of sexual assaults on campus. She did not speak to Erdey, the reporter; here again, most of the information in the story about her comes only from Jackie. 

Eramo’s complaint argues that the magazine was intent on portraying the school negatively: “Defendants’ purpose in publishing the article was to weave a narrative that depicted [UVA] as an institution that is indifferent to rape on campus, and more concerned with protecting its reputation than with assisting the victims of sexual assault.”

Eramo’s suit argues that, since she is largely the face of UVA in the story, passages like this reflect negatively on her as well: “In the meantime, having presumably judged there to be no threat to public safety, the UVA administration took no action to warn the campus that an allegation of gang rape had been made against an active fraternity.”

Ironically, there is some suggestion that, having looked into the allegations that Jackie had made to her originally, Eramo herself had found inconsistencies in the student’s story; another ironic aspect of the Rolling Stone piece is that Erdely was holding UVA’s feet to the fire about its handling of some number of sexual attacks that didn’t, in the end, exist.

Being a public figure, Eramo has a high bar to clear to win her case; her lawyers will be looking for evidence that the magazine’s staff had reservations about the story to establish recklessness. Rolling Stone will argue that Erdely’s ultimate contention in the piece—that UVA wasn’t doing enough to combat sexual assaults on campus—is in the end a matter of opinion, not a factual assertion.

Could Rolling Stone be trying to settle either or both of the cases? Sources tell CJR that attempts to do so in the Eramo case failed; they may be ongoing in the Phi Kappa Psi case. A spokesperson for Rolling Stone declined to comment on whether the magazine had libel insurance and, if so, whether the insurance company was taking an active role in its legal strategy.

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Bill Wyman is the former arts editor of NPR and Salon.com. Follow him @hitsville.