Rolling Stone's rape story trial highlights a hardening attitude toward the media

https://www.theguardian.com/media/2016/nov/05/rolling-stone-uva-rape-story-trial-media-lawsuits

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The finding that Rolling Stone magazine defamed a University of Virginia administrator is the latest in a series of legal decisions that experts say signal a hardening attitude to the media and other institutions.

A jury on Friday found that Rolling Stone and writer Sabrina Rudin Erdely met the extraordinary standard of acting with “actual malice” in their depictions of Nicole Eramo, the university’s former associate dean.

In her lawsuit for $7.5m, Eramo claimed the publication’s story cast her as the “chief villain” who “silenced” Jackie or “discouraged” her from reporting her alleged rape to police.

The story published in November 2014 told the story of a University of Virginia student identified only as “Jackie” who claimed that seven members of Phi Kappa Psi raped her in a gruesome fraternity initiation. The story initially spurred an outpouring of outrage until it fell apart under scrutiny from other news outlets. Within weeks, Rolling Stone had to apologize for not thoroughly fact-checking it.

Jurors in this case had to find that the magazine’s reporter and editors not only made a mistake but had knowledge of the falsity or reckless disregard for the truth.

“It has to be egregious,” said Samantha Barbas, a law professor specializing in media at the University at Buffalo. “The press has to know that something is false and print it anyway.”

The verdict comes on the heels of several recent high-profile cases where juries have found against institutions in cases involving invasion or privacy or defamation issues.

Last month the News & Observer of Raleigh was ordered to pay about $6m in a state bureau of investigation agent’s libel lawsuit.

Earlier this year a jury in St Petersburg, Florida, delivered a $115m verdict against Gawker Media after it posted a sex tape of Hulk Hogan with his best friend’s wife. The verdict forced the sale of the company, and last week Hogan and Gawker’s former owners settled for $31m – but not before the now-defunct site filed for bankruptcy.

A month earlier, US sportscaster Erin Andrews was awarded $55m against Marriott Hotels after a Tennessee jury found the chain had not protected her from being filmed in the shower by a stalker.

Barbas argued that the series of decisions signal that juries, reflecting public sentiment, are “disenchanted with freedom of speech” since many had personally experienced, through social media, the damage that online speech can have.

“We’ve entered an anti-media cycle and we’re seeing people, particularly public figures, getting a lot more litigious about what appears in the media, whether that’s libel or invasion of privacy.” At the same time, Barbas said, “Public figures are becoming more confident juries will be more sympathetic to them.”

Unlike the Gawker case, which claimed invasion of privacy, Eramo sued the magazine for allegedly casting her as the “chief villain” in its article. Because the judge ruled that Eramo was a “limited-purpose” public figure, she couldn’t simply claim that Rolling Stone was negligent in its reporting – she had to argue that the publication acted with “actual malice”.

While Rolling Stone went to great lengths to unpick the failures of its reporting and fact-checking, including commissioning a report from the Columbia School of Journalism, it did not retract its characterization of Eramo.

Mary-Rose Papandrea, a University of North Carolina law professor, said the greatest surprise in the case was that “there wasn’t a greater awareness to the high risk of litigation”.

“This can only happen when journalists are too trusting in their sources and seemed to be hiding their heads in the sand to the truthfulness of what they’re publishing,” Papandrea said.

In finding Rolling Stone liable, jurors accepted Eramo’s claim that Erdely, the reporter, acted with actual malice on six claims – two statements in the article and four statements to media outlets after the story’s publication. Barbas said the statements in the original article went from being inaccurate to libelous when Rolling Stone republished the article with corrections.

“Rolling Stone knew that Jackie was not a credible source yet despite that they published the story and let it stay on their website. They reaffirmed the truth of it despite, by that point, having serious doubts about Jackie’s credibility. So that was enough to constitute actual malice.”

In one objectionable statement, Erdely wrote that Eramo had a “nonreaction” when she heard from Jackie that two other women were also raped at the same fraternity. Another was Erdely’s statement to the Washington Post days after the story was published that the University of Virginia administration chose not to act on Jackie’s allegations “in any way”.

Barbas believes the consequences of this verdict could be farther-reaching than the Gawker verdict, which was based on the broadcast of a sex tape on a site known for sensationalistic or gossipy material.

“It’s not a sex tape, it’s reporting on a legitimate subject. For a jury to say there’s actual malice – a reckless disregard of the truth – is pretty strong and that’s why this may have a stronger impact on the media than the Gawker case.”

For Rolling Stone, once at the forefront of 60s social upheavals, the verdict will come as a bitter blow. Not only has its reputation suffered, but it still faces a $25m defamation lawsuit from the University of Virginia’s Phi Kappa Psi fraternity – where Jackie claimed her sexual assault took place. That case is set to go to trial next year.

The Associated Press contributed to this report.