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Rolling Stone Loses Defamation Case Over Rape Story
By BEN SISARIO, HAWES SPENCER and SYDNEY EMBERNOV. 4, 2016
Rolling Stone magazine paid the legal price on Friday for its journalistic failings in a 2014 article about a supposed gang rape at the University of Virginia that it had already retracted in the face of widespread criticism.
A federal jury in Charlottesville, Va., found that the magazine; its parent company, Wenner Media; and Sabrina Rubin Erdely, the author of the article, are all liable in a defamation suit filed by Nicole P. Eramo, a former associate dean of students at the university, who said the article depicted her as the “chief villain” of the story.
With gruesome details and its portrayal of an indifferent university administration, the 9,000-word article, “A Rape on Campus,” intensified a national conversation about college sexual assaults. But the article, published in November 2014, was soon called into question for its reliance on a single source, identified only as Jackie, in describing what she said was her brutal rape by multiple men at a fraternity party. In March 2015, police in Charlottesville said that they had found “no substantive basis” to conclude that the incident described in the article had occurred.
Rolling Stone commissioned a review of the article by the Columbia Graduate School of Journalism, and the school’s report, issued in April 2015, found that the magazine had failed to engage in “basic, even routine journalistic practice” to verify details from Jackie. Rolling Stone retracted its story and removed it from its website.
Nevertheless, in a videotaped deposition shown during the trial, Jann S. Wenner, Rolling Stone’s founder and publisher, said the magazine was wrong to retract the article fully, putting the blame for its faults on Jackie. The jury disagreed.
“It felt good for a jury of Nicole’s peers to come back and vindicate what we have known from Day 1,” said Libby Locke, a lawyer for Ms. Eramo, after the verdict. Ms. Eramo declined to comment.
The verdict against Rolling Stone is the second major punishment against a news media company this year. Gawker Media was ordered to pay $140 million in an invasion of privacy case filed by Terry G. Bollea, the former professional wrestler known as Hulk Hogan. Gawker and Mr. Bollea settled their case this week for $31 million, but not before Gawker was forced into bankruptcy and sold.
And for Rolling Stone, which was founded in 1967 and has been one of the pre-eminent outlets for investigative and alternative journalism — its writers have included Hunter S. Thompson, Tom Wolfe and Matt Taibbi — the case delivers a painful blow to its reputation and legacy.
After the verdict, Rolling Stone released a statement that said in part: “In our desire to present this complicated issue from the perspective of a survivor, we overlooked reporting paths and made journalistic mistakes that we are committed to never making again. We deeply regret these missteps and sincerely apologize to anyone hurt by them, including Ms. Eramo.”
As with the Gawker case, the public’s disillusionment with the news media and its transgressions and faults seemed to be a factor.
“Today’s verdict marks the boundary of how far a writer and her publication can go in breaking the basic rules of journalism — before facing the consequences of false reporting,” said Mark J. MacDougall, a partner at the law firm Akin Gump Strauss Hauer & Feld, who was not involved in the Rolling Stone case.
Edward Wasserman, the dean of the Graduate School of Journalism at University of California, Berkeley, said he was troubled at the increasing frequency with which complaints about journalism were being settled in the unpredictable and expensive sphere of the courts.
“This doesn’t speak of a well-functioning system of press accountability,” Mr. Wasserman said. “This speaks to a capricious system in that publications can be faced with ruinous consequences for wrongdoing that could be settled more smoothly and more routinely.”
What Is Malice?
One of the landmark First Amendment cases involves the 1964 unanimous Supreme Court ruling in New York Times v. Sullivan. The ruling found that the paper did not act with actual malice, which it defined as publishing a statement that an outlet knew was false, or that it exercised “reckless disregard for the truth.”
The ruling set tougher standards for public officials suing for libel. The court held that even if a media outlet published defamatory information about public officials, they would have to prove that not only were the statements false but that the news outlet knew them to be wrong or acted with actual malice.
A few years later, the Supreme Court said that the ruling also applied to public figures.
The jury found that assertions made within the article, as well as postpublication comments by Ms. Erdely and news releases by Rolling Stone, were defamatory.
In its finding, the jury decided that the defendants had acted with actual malice, a legal standard that means that the publication either knew that the information published was false, or acted with reckless disregard for whether it was true or not.
The actual malice standard — applied because the judge in the case, Glen E. Conrad, had deemed Ms. Eramo a public figure — is a difficult one to meet, said Carl Tobias, a professor at the University of Richmond School of Law.
“It’s a very high standard, and deliberately so,” Mr. Tobias said, “to protect First Amendment defendants to follow a story wherever it leads.”
In her suit, Ms. Eramo asked for $7.5 million in damages. The jury will return Monday to hear additional evidence to set damage amounts among the three defendants. The judge instructed jurors not to talk to the news media.
Wenner Media has said that it has enough insurance coverage to weather losses in Ms. Eramo’s cases and in another suit, filed in Virginia state court by the fraternity in the article, Phi Kappa Psi.
Yet for Wenner, the verdict is a blow at a time when the publisher is already under financial stress. Like other magazine companies, Wenner has been fighting declines in circulation and print advertising revenue, but it is also making hefty annual payments on millions of dollars of debt.
Its revenue has been declining, and analysts say that there is now a rush to pay off its debt before the print magazine industry collapses further.
In closing arguments this week, Scott Sexton, a lawyer for Rolling Stone, stressed that the magazine had acted in good faith and within the bounds of the law in investigating the university’s conduct in handling sexual assault complaints. He also pointed to a report last year by the United States Department of Education that harshly criticized the University of Virginia’s handling of two alleged assault cases, including Jackie’s.
“We are entitled to criticize public figures,” Mr. Sexton said.
Ms. Eramo’s lawyers portrayed Rolling Stone as approaching its reporting with a preconceived story line and recklessly causing harm.
“This is a case about journalism; it’s not about rape or whether Jackie was assaulted at a fraternity house,” said Tom Clare, a lawyer for Ms. Eramo. “It’s about what happens to real people like Nicole Eramo when they become collateral damage in a quest for sensational journalism.”
Still, some observers regretted the fact that journalism and journalists, rather than the victims of rape, had become the center of attention.
“Someone had to pay for Rolling Stone’s mistakes,” said Liz Seccuro, a Los Angeles woman who won a conviction nine years ago against a man who sexually assaulted her in 1984 in the same University of Virginia fraternity that Rolling Stone depicted in its article.
“But real rape victims,” Ms. Seccuro said in an interview, “have gotten lost in this whole circus.”
Looks like the Trolling Stone done f***ed up this time.
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