Why the Defamation Verdict Against Rolling Stone Could Chill Media Apologies

The Phi Kappa Psi fraternity house - University of Virginia campus- Getty - H 2016
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That Rolling Stone lost its defamation fight with University of Virginia dean Nicole Eramo was a surprise to some attorneys and journalists — but precisely how the magazine lost is even more unexpected and potentially important.

At the heart of the lawsuit is the portrayal of Eramo as alleged "villain" in the since-discredited Nov. 19, 2014, story, "A Rape on Campus," about the supposed gang rape of a woman referred to as "Jackie." Eramo sued both the magazine and reporter Sabrina Rubin Erdely for defamation.

On Friday, a jury found in Eramo's favor, but don't miss the nuance. The jury found that Rolling Stone did not act with actual malice when it originally published the story. Since Eramo needed to prove the publication recklessly disregarded the truth, this portion of the verdict would lead most experts to expect the magazine to be in the clear. However, that's obviously not the end to the story. The jury also found that a Dec. 5, 2014, version of the online article which included an editor's note apologizing for holes in the story constituted a republication of "A Rape on Campus"  — and by then, the magazine had enough information to be dubious of the story's origins. As such, only then did Rolling Stone act with actual malice. 

“Actual malice relates to a party’s state of mind at a particular moment,” says Fox Rothschild partner Lincoln Bandlow. “If you’re provided with additional information such that your state of mind changes and you still continue to make the statements, then you might have problems.”

After realizing there were discrepancies in Jackie's story, the magazine issued an apology and committed to looking into the matter. Many will see this as the responsible move, but yet the decision to add that note to the problematic online story is what led the jury to finding Rolling Stone liable for defamation.

“The message here is: Don’t apologize,” says Venable partner Alex Weingarten. “I don’t see how you could have the apology be effective without putting it in the proper context and saying what it was in response to.”

Rolling Stone had asked the court to dismiss the republication claim in a Sept. 20 court memo supporting its motion for summary judgment.

"The only change Rolling Stone made was to add the Note to Readers at the top of the page on December 5, 2014, putting readers on notice that Rolling Stone now questioned Jackie’s credibility, promising a forthcoming investigation and apologizing to ''anyone affected by the story,'" wrote attorney Elizabeth McNamara. "It would be a cruel irony and an error for Defendants to face possible liability because they took prompt and decisive steps to address and communicate their concerns with Jackie’s credibility."

Two days later, U.S. District Judge Glen E. Conrad declined to grant McNamara's plea. Now, the promised irony has come to bear.

What was Conrad's rationale?

“[T]he court believes a reasonable jury could determine that the December 5th Editor's Note ‘effectively retracted' only the statements regarding the alleged rape, not the statements about Jackie's interactions with Eramo,” wrote Conrad before the trial. “Conversely, a factfinder could determine that the challenged statements were either ‘substantially altered or added to’ or that they were not. Accordingly, in the court’s view, there remains a genuine issue of fact warranting jury consideration.”

It's a twist on the law that Kinsella Weitzman partner Jeremiah Reynolds says is absurd.

“The idea that you republish when you issue a statement saying you don’t have full confidence in the article, I have a real problem with that,” he says. "This issue is like the perfect appellate issue. It’s squarely a question of law, whether what they did can constitute a republication."

Rolling Stone faced widespread criticism for breaching journalistic standards upon publication of "A Rape on Campus," but attorneys are split on whether the publication should have been deemed to have defamed Eramo even without the quirky issue of republication. 

“The facts in this case are extreme,” says Akin Gump partner Mark MacDougall. "This 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. When a reporter, an editor or a magazine behave like they don’t care whether what they publish is false, that’s enough to support a finding of actual malice.”

Ervin Cohen & Jessup counsel David Tarlow says Eramo is a sympathetic plaintiff and he could see why a jury would rule in her favor, but he was still surprised by the verdict.

“It’s a high standard for plaintiffs to get over in order to prevail,” says Tarlow. “Any time you have this sort of verdict, you’re going to send a chill through the journalistic community.”

As Tarlow notes, the actual malice bar is a high one for plaintiffs who must show a news outlet or reporter knowingly published false information or acted in reckless disregard of the truth. Eramo, who was in charge of investigating sexual assaults at the University of Virginia, faced this burden after a judge ruled she was a limited-purpose public figure.

Latham & Watkins partner Marvin Putnam says this case highlights the clash of two American Ideals: free speech and individual rights — and it's constitutional, not journalistic, standards that should reign in this case. 

“This really undermines First Amendment protections for free speech about important public issues,” Putnam says, adding that in this scenario no one wins. "The incredibly important conversation that’s occurring about rape culture has been really undermined by this. There’s nothing worse than a hoax to undermine legitimate conversations that are taking place."

As the damages phase of the trial begins on Monday, the jury will now consider the amount of money that should be awarded to Eramo, but whatever the outcome, there is a widespread expectation that Rolling Stone will appeal the verdict.
"Juries might not get actual malice, but courts of appeal certainly do," says Bandlow. "This one’s not over."
The attorneys agreed that while defamation plaintiffs tend to succeed in jury trials, the appeals courts overturn or amend the vast majority of cases that are appealed. 
“There’s a tremendous balancing that needs to go into a verdict of this nature because of the effect it will have on national policy,” says Weingarten. “If freedom of the press is stifled, it’s a direct threat to our democracy.”