After hearing more than two weeks of evidence in the libel trial against Rolling Stone, the jury concluded Friday that the magazine defamed a former University of Virginia dean in its now-discredited 2014 article about a brutal gang rape on campus.
The 10 person jury found that Sabrina Erdely, the journalist who authored the story, was responsible for libel and guilty of “actual malice” on multiple accounts in the case brought by Nicole Eramo, a UVA administrator and former dean whose $7.5 million defamation suit claimed that Rolling Stone portrayed her as callous and indifferent to “Jackie,” the alleged gang rape victim at the center of the magazine’s blockbuster “A Rape on Campus” article, as well as generally uncaring about sexual assault on campus while she was head of the university’s sexual assault prevention program.
Eramo’s suit also argued that what Erdely made inaccurate statements about the story in interviews with WNYC and in a Slate podcast, and that she was referring to Eramo when she said that “the administration” did nothing about Jackie’s alleged rape.
The jury deliberated for nearly twenty hours—more than twice as long as the jury deliberated over Hulk Hogan’s privacy lawsuit against Gawker. They also concluded that Rolling Stone and its publisher, Jann Wenner, defamed Eramo.
“The jury’s verdict is a complete vindication of Nicole Eramo, and a complete repudiation of Rolling Stone’s and Ms. Erdely’s false and defamatory article,” Eramo’s attorney Libby Locke said in a statement to The Daily Beast. “We are looking forward to the damages phase of the trial.” (This begins on Monday.)
In closing arguments heard earlier this week, Rolling Stone’s attorney Scott Sexton argued that Eramo’s case didn’t meet the “actual malice” standard set by Judge Conrad back in September, which meant that Erdely and the magazine either knew its statements about Eramo were false or that they “entertained serious doubts to the truth of the publication,” according to Judge Conrad’s instructions for the jury, which also stressed that “a failure to investigate does not establish actual malice.”
Marc Randazza, a First Amendment lawyer, said he was not surprised by the verdict.
“The defendants had the benefit of a very favorable standard,” he told the Daily Beast, referring to the actual malice standard which was implemented as part of the landmark New York Times vs. Sullivan (1964) case to protect freedom of the press.
“No journalist should feel chilled by this pronouncement,” Randazza added. “The First Amendment protects you even if you make an honest mistake in a case like this, but it provides no shelter for someone who writes fiction and calls it ‘journalism.’”
In their own closing arguments, Eramo’s team had urged the jury to acknowledge the magazine’s journalistic malpractice and Erdely’s utter disregard for the truth while pushing a preconceived narrative about sexual assault and institutional failure at UVA.
“Once they decided what the article was going to be about, it didn’t matter what the facts were,” said Eramo’s attorney Tom Clare. He argued that Erdely set out to portray Eramo as a “villain” in her story because she was an “easy target” and couldn’t legally discuss Jackie’s case.
Rolling Stone had previously defended itself in court by noting that Eramo was not made available for an interview with Erdely.
During much of the trial, Eramo’s lawyers stressed just how wrong Erdely had been about Jackie’s case. Rolling Stone countered that Eramo herself believed Jackie’s story and devoted more than a year to trying to get Jackie’s case to police, though she consistently refused to report it.
After the article’s publication, a five-month police investigation found no evidence corroborating Jackie’s alleged assault as it was recounted in Rolling Stone.
Eramo’s attorneys also argued that Rolling Stone’s December 5 editor’s note, in which then-managing editor Will Dana admitted they’d lost faith in Jackie’s story, amounted to a “republication” of the story that further damaged Eramo’s reputation.
The magazine did not officially retract the story until April 2015, after the Columbia Graduate School of Journalism—called on by Rolling Stone to investigate the article—called it a “failure of journalism.”
“When we published ‘A Rape on Campus’ in 2014, we were attempting to tackle the very serious and complex topic of sexual assault on college campuses, a subject that is more relevant today than ever,” Rolling Stone said in a statement responding to the verdict. “In our desire to present this complicated issue from the perspective of a survivor, we overlooked reporting paths and made journalistic mistakes that we are committed to never making again.”
Last week in trial, Rolling Stone co-founder and publisher Jann Wenner testified that the retraction was “inaccurate…We do not retract the whole story.” Wenner’s statement raised eyebrows, though it was consistent with Rolling Stone’s defense that the only damning statements about Eramo were made by Jackie. Erdely testified that she stood by “everything I wrote…except for anything that came from Jackie.”
Evidently, the jury was not convinced. “Essentially, the jury decided today that Sabrina Erdely made numerous false and defamatory statements about Dean Eramo in the article, and that she made these statements either knowing them to be false or with a high degree of awareness that they were probably false,” Virginia-based attorney Lee Berlik, who specializes in defamation law, told the Daily Beast. “Most of these statements involved assertions that Dean Eramo ‘did nothing’ when a student came to her claiming to have been raped at a fraternity, or that Eramo affirmatively sought to ‘suppress’ the story by encouraging Jackie (the alleged victim) to keep quiet about it.
“In addition, the jury found that while Rolling Stone was likely unaware of the falsity of these accusations at the time the article was published originally, it was certainly aware at the time it published an ‘Editor’s Note’ apologizing for the discrepancies in Jackie’s account, and because Rolling Stone opted to keep the article online even after learning of those discrepancies, the jury decided to hold the magazine liable for effectively republishing the defamatory material.”
UVA’s Phi Kappa Psi fraternity, where Rolling Stone reported that Jackie was raped, has also filed a defamation suit against the magazine. The case is set to go to trial in October 2017.
The jury concluded (PDF) that Erdely made the following statements with “actual malice.”
In the November 19, 2014 print and online editions of “A Rape on Campus”:
“Lots of people have discouraged her from sharing her story, Jackie tells me with a pained look, including the trusted UVA dean to whom Jackie reported her gang-rape allegations more than a year ago.”
In the November 19, 2014 print and online editions of “A Rape on Campus”:
“A bruise mottling her face, Jackie sat in Eramo’s office in May 2014 and told her about the two others. One, she says, is a 2013 graduate, who’d told Jackie that she’d been gang-raped as a freshman at the Phi Kappa Psi house. The other was a first-year whose worried friends had called Jackie after the girl had come home wearing no pants. Jackie said the girl told her she’d been assaulted by four men in a Phi Psi bathroom while a fifth watched. (Neither woman was willing to talk to RS.) As Jackie wrapped up her story, she was disappointed by Eramo’s nonreaction. She’d expected shock, disgust, horror … Of all her assailants, Drew was the one she most wanted to see held accountable-but with Drew about to graduate, he was going to get away with it. Because, as she miserably reminded Eramo in her office, she didn’t feel ready to file a complaint. Eramo, as always, understood”
On the Brian Lehrer show on November 26, 2014:
“[J]ackie was kind of brushed off by her friends and by the administration… And eventually, when she did report it to the administration, the administration didnothing about, they did nothing with the information. And they even continued to do nothing when she eventually told them that she had become aware of two other women who were also gang raped at the same fraternity.”
On the Slate DoubleX Gabfest podcast on November 26, 2014:
“It is incredibly extreme. I mean whether this was perpetrated by a serial rapist who has many victims—I mean it seems like no matter what, this is an incredibly messed up situation. But it was absolutely a violent crime and I think what was really telling was the idea that and this really underscores the entire article; is the student body and the administration doesn’t really treat rape as a crime, as a violent crime… Even in this case, right, exactly. And this is why this case blew my mind, that Jackie ‘s situation blew my mind; that even in a situation that was so extreme and so obviously within the realm of criminal, that they would seek to suppress something like this because that’s really what they did. Not only did they not report it to the police, but really I feel she was sort of discouraged from moving this forward.”
On the Slate DoubleX Gabfest podcast on November 26, 2014:
“She’s particularly afraid of Drew who she’s assigned a tremendous amount of power in her own mind.… So I think that the idea of[Jackie]facing him or them down in any way is really just emotionally crippling for her. She’s having a hard time facing up to that, and I think that she needs a lot of support if she’s going to get to the place where she can actually confront them. When she does actually run into some of her alleged assailants on campus sometimes, just the sight of them, obviously it’s a shock but it also tends to send her into a depression. So it just goes to show sort of the emotional toll something like this would take. I just think it would require a great deal of support for her to move forward into any of these options to resolve her case and that’s something that’s been completely absent. She really hasn’t had any of that support from her friends, from the administration, nor from her family.”
Emailed to a Washington Post reporter on November 30, 2014:
“As I’ve already told you, the gang-rape scene that leads the story is the alarming account that Jackie—a person whom I found to be credible—told to. me, told her friends, and importantly, what she told the UVA administration, which chose not to act on her allegations in any way—i.e., the overarching point of the article. THAT is the story: the culture that greeted her and so many other UVA women I interviewed, who came forward with allegations, only to be met with indifference.”
The jury concluded that Rolling Stone and Wenner Media, LLC made the following statements with “actual malice” after “republishing” on December 5, 2014.
Republished on December 5, 2014:
“Lots of people have discouraged her from sharing her story, Jackie tells me with a pained look, including the trusted UVA dean to whom Jackie reported her gang-rape allegations more than a year ago.”
Republished on December 5, 2014:
“Like most colleges, sexual-assault proceedings at UVA unfold in total secrecy. Asked why UVA doesn’t publish all its data, President Sullivan explains that it might not be in keeping with ‘best practices’ and thus may inadvertently discourage reporting. Jackie got a different explanation when she’d eventually asked Dean Eramo the same question. She says Eramo answered wryly, ‘Because nobody wants to send their daughter to the rape school.””
Republished on December 5, 2014:
“A bruise mottling her face, Jackie sat in Eramo’s office in May 2014 and told her about the two others. One, she says, is a 2013 graduate, who’d told Jackie that she’d been gang-raped as a freshman at the Phi Kappa Psi house. The other was a first-year whose worried friends had called Jackie after the girl had come home wearing no pants. Jackie said the girl told her she’d been assaulted by four men in a Phi Psi bathroom while a fifth watched. (Neither woman was willing to talk to RS.) As Jackie wrapped up her story, she was disappointed by Eramo’s nonreaction. She’d expected shock, disgust, horror … Of all her assailants, Drew was the one she most wanted to see held accountable-but with Drew about to graduate, he was going to get away with it. Because, as she miserably reminded Eramo in her office, she didn’t feel ready to file a complaint. Eramo, as always, understood”
