Rolling Stone Asks Judge to Toss Jury's Defamation Verdict

The Phi Kappa Psi fraternity house - University of Virginia campus- Getty - H 2016
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Instead of accepting a jury's verdict that a Rolling Stone story defamed University of Virginia dean Nicole Eramo and writing her a seven-figure damages check, the magazine is asking the court to throw out the verdict completely.

The jury's decision raised eyebrows in both media and law circles because Rolling Stone wasn't being held liable for the original story, "A Rape on Campus," but rather a later version which contained an editor's note apologizing for holes in the story. The jury found that version to be a "republication" and, because at that point Rolling Stone knew the story wasn't true, decided the magazine had acted with actual malice in re-posting it.

Had Rolling Stone chosen not to add a disclaimer and left the original story as it was, they wouldn't have been found liable for defamation — at least by this group of jurors. The underlying lesson: Don't apologize.

"Plaintiff sought to confuse the jury by arguing that if the statements were not sufficiently retracted, they were “republished” — an argument that is flatly contradicted by black-letter law on republication as well as actual malice," states the motion. "In the end, the jury verdict acts as a million-dollar penalty against a publisher that sought to promptly put readers on notice of serious concerns with an article and, as such, violates basic public policy."

Attorneys for the magazine argue that the evidentiary record does not support the jury's finding that it is liable for defamation, according to a motion for judgment as a matter of law notwithstanding the jury's verdict filed Monday in Virginia federal court.

The post with the editor's note doesn't qualify as a republication, the magazine argues, because it didn't affirmatively reiterate the offending statements in an attempt to reach a new audience.   

"There is no question that the Article’s unraveling was a major black eye for Rolling Stone," states the motion. "It defies logic for a jury to find that by placing a prominent disclaimer on the Article notifying readers that Rolling Stone no longer stood behind Jackie as a source, apologizing, and promising a full investigation, Rolling Stone was actually trying to recruit a new audience and spread now-discredited information from Jackie — including each of the Article Statements attributed to her — more widely than it had previously been distributed."

While there was a damages award of $1 million against Rolling Stone, and an additional $2 million against writer Sabrina Rubin Erdely, this move might not be just about the money. It could also be about overturning a decision that could set damaging precedent for journalists.

"If the jury’s verdict is allowed to stand, the severe legal risk of adding a warning editor’s note to a story will force publishers not to make the very disclosures that the law encourages," states the motion. "Such a result is not only at odds with the law, it flies in the face of common sense, public policy, and the best interests of an informed public."

The motion also seeks to overturn the jury's verdict that Erdely is personally liable for defamation. Because the court ruled that Eramo is a limited purpose public figure, in order to prevail on a defamation claim, the dean would have had to prove that Erdely knew the story was false or acted with reckless disregard for the truth — a burden attorneys argue she didn't meet.

Eramo's attorney Libby Lock sent The Hollywood Reporter a statement in response to the filing Monday afternoon: "Rolling Stone baldly told the jury that they heard and respected the verdict in this case. But that was obviously a lie. The very first thing that Rolling Stone filed after saying those words is a request to set the verdict aside. This is more evidence that Rolling Stone still doesn't get it."