This Is What the Jury in the Rolling Stone Defamation Trial Must Decide

The jury in the defamation trial against Rolling Stone over its 2014 story about a gang rape at the University of Virginia adjourned on Wednesday, having failed to arrive at a verdict after deliberating for more than six hours.

On the 14th day of the trial in federal court, Judge Glen Conrad reportedly signed an order to give the jurors free meals while they deliberate the defamation suit brought by UVA administrator and former dean Nicole Eramo, who is seeking $7.5 million in damages from the magazine and arguing that Rolling Stone defamed her as uncaring about the alleged sexual assault of a student named “Jackie.”

At issue is whether or not Rolling Stone and Sabrina Erdely, author of the now-discredited “A Rape on Campus” article, acted with “actual malice” when reporting the story.

On Wednesdsay morning, Judge Conrad gave instructions to the jury that included a clear definition of “actual malice,” ensuring they knew that, in order to win her case, Eramo must prove Erdely and Rolling Stone defamed her “with knowledge of the [defamatory] statement’s falsity or with reckless disregard for whether or not it is false.”

Acting with reckless disregard would mean Erdely and Rolling Stone either knew the statements about Eramo were false or “in fact entertained serious doubts as to the truth of the publication,” according to the Judge Conrad’s definition.

His instructions also stressed that “a failure to investigate does not establish actual malice,” noting that malice is not simply negligence.

Judge Conrad clarified that jurors could determine that Rolling Stone acted with actual malice if it failed to investigate when they began to doubt the story, because the article would then be “weakened by inherent improbability, internal inconsistency, or apparently reliable contradictory information.”

Given that the Columbia Graduate School of Journalism—which was called upon by Rolling Stone to investigate the article—determined that it was a “failure of journalism,” one might have assumed that Eramo was at a significant advantage in this case. But legal experts say the “actual malice” standard is very difficult to prove.

“There seems to be a widely held assumption that because various independent organizations have already determined that Rolling Stone did not adhere to basic journalistic standards in its reporting of a supposed rape at UVA, Dean Eramo is going to win this case easily,” said Virginia-based attorney Lee Berlik, who specializes in defamation law.

Berlik noted that two significant rulings in the case present Eramo with serious challenges.

If Judge Conrad had not ruled back in September (PDF) that Eramo was a “limited-purpose public figure,” her case would have been much easier to prove because the “actual malice” standard wouldn’t have applied.

While Eramo wasn’t a household name or a celebrity, the court ruled that she was a public figure at UVA with respect to her former position there as a sexual assault advocate.

Equally significant was the judge’s ruling earlier this week, which dismissed Eramo’s claim that the article’s overall implications defamed her.

On Monday, Judge Conrad ruled that “no reasonable juror” could find that the story as a whole implied Eramo acted as a “false friend to Jackie who pretended to be on Jackie’s side while seeking to suppress sexual assault reporting.”

Berlik said that the most recent ruling limits Eramo’s case, since any verdict in favor of Eramo "must be based on something one or more of the defendants actually wrote or said expressly, and not on what those statements may have insinuated."

The "actual malice" standard may be difficult to prove, but it was implemented as part of the landmark New York Times vs. Sullivan (1964) case to protect freedom of the press.

“The purpose of that standard is to give the press breathing room and prevent them from operating based on a chilling effect,” said First Amendment lawyer Marc Randazza, adding, “We don’t want the press to be timid while doing its job. But there’s a large gap between responsibility and timidity.”

If Rolling Stone is found not guilty, “it’s because of that breathing room that our legal system gives the First Amendment,” Randazza said. “Without it, we could end up with a defamation regime like you have in Singapore, for example, where a cherry-picked error could result in [a publication’s] ruin.”

If the jury sides with Eramo, it would not only confirm that Rolling Stone committed journalistic malpractice but “that the First Amendment is not impermeable,” Randazza said.

Another key component that the jury will have to contend with is whether Rolling Stone’s editor’s note—issued on December 5, 2014—amounted to a “republication” of the article.

Eramo’s attorneys have argued that then-managing editor Will Dana’s editor’s note drew more attention to the story and therefore further damaged Eramo’s reputation.

If the jury finds that Rolling Stone’s editor’s note—in which they admitted they had lost faith in Jackie’s story—is sufficient proof that they knew what they had published was false and defamatory, the case will not end well for the magazine.

The article was not officially retracted until April 2015, after the Columbia Graduate School of Journalism essentially discredited the article.

This week in court, Rolling Stone co-founder and publisher Jann Wenner said that the full retraction had been “inaccurate…We do not retract the whole story.”