Media Companies Rally Behind Rolling Stone Bid to Overturn Defamation Verdict

Jann Wenner - Getty - H - 2016
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After Rolling Stone magazine published its Nov. 19, 2014, article titled "A Rape on Campus," its tale of a freshman student at the University of Virginia brutally gang raped, the Washington Post identified major errors and discrepancies in the reporting. Within weeks, there were calls for staff firings. Rolling Stone added an editor's note to the online version, explaining what the Washington Post had unearthed, apologizing, and pledging to investigate.

Now, two years later, the Washington Post has gone from the news organization that poked holes in the rape story to one standing behind Rolling Stone's bid to overrule a jury's multimillion-dollar verdict. On Thursday, it was one of eight media groups, along with the Associated Press, Gannett Co. and others led by the Reporters Committee for Freedom of the Press to submit a proposed amicus brief to a Virginia federal judge.

That Sabrina Rubin Erdely's story contained false statements is not the issue. In the interest of furthering free speech on publicly important matters, the law is liberally permissive, requiring public figures show actual malice — knowledge of falsity or reckless disregard — in order to prevail on defamation claims. On Nov. 4, a jury rendered its verdict that Rolling Stone had acted with actual malice against U. of Virginia associate dean Nicole Eramo, but not in its original publication of the story. Instead, the magazine was found in fault for republishing the false statements in its Dec. 5 editor's note.

This issue of republication via an intermediate apology and promise to investigate is a big deal in media law. The jury essentially ruled that Rolling Stone's biggest fault was not in running a false article, but rather refusing to immediately retract it.

Now, media companies are rallying behind the effort to get the judge to rule as a matter of law that there's no liability here.

"In an age where a growing number of people rely upon online publications for their news, which are often reposted and redistributed through social media like Facebook and Twitter, the need to post additional information that updates an article – whether by backing off from reported conclusions or directly correcting, clarifying, or retracting statements – has become even more important," states the proposed brief from the media coalition. "Because such modifications need to be timely and prominent and should reach the same audience as the original article, it only makes sense that in the realm of online reportage, the new information should appear on the original page."

The brief continues, "But the need for journalists to append clarifications and ensure the accuracy of their work is nothing new," talking about corrections policies as far back as the 17th century, when the first newspaper in what would later become the United States was founded.

There's further discussion of some of media's all-time marks of shame, including Washington Post's 1980 Pulitzer Prize-winning, made-up story about an 8-year-old heroin addict, Jason Blair's fabrications in The New York Times around 2003, and This American Life's faulty 2012 story about a trip to China to see workers making iPhones. Each of these stories was left up in the archives with added editor's notes noting misrepresentations.

"The Court’s decision to have the jury determine whether the defamatory information was 'republished' when an editor’s note was attached would be harmful for news organizations and those who rely upon them for accurate news reports," argues the brief. "Upholding the current verdict would discourage the news media from correcting errors in their stories, particularly because not mentioning a particular fact from a story in the note constitutes 'republishing' it. The only recourse available would be to require news sites to completely remove stories when any question of credibility is raised. Neither choice – ignoring errors or too quickly removing them – would serve the interests of the public; noting errors should never be considered a 'republication.'”

Here's the full amicus brief.