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  • Writer's pictureMario Nicolais

Rolling Stone Magazine gets rolled in court

For nearly 10 years I worked as an attorney with an emphasis on First Amendment law. Consequently, about once a week I had random calls from people who wanted to sue someone else for slander or libel. After about 20 minutes explaining the elements of law, the drawn out trial process, the Herculean task of proving slander or libel and, finally, the inordinate cost involved, callers usually said they needed to think about it and never called back.

I’m sure Rolling Stone Magazine wishes former University of Virginia Associate Dean Nicole Eramo had been as easily dissuaded. A civil jury in Charlottesville, Virginia, returned a verdict in favor of Eramo in her defamation case against Rolling Stone. The verdict sets the ground for a future damages award. Eramo originally asked for $7.5 million.

The case began when Rolling Stone published a lengthy article entitled “A Rape on Campus,” nearly two years ago. The article made an in-depth analysis of systematic deficiencies dealing with sexual assault on the campuses of American colleges and universities. It relied heavily on the horrific story told by one UVA student about her brutal gang-rape at a fraternity house in her freshman year. It also condemned school officials, primarily Eramo, for failing to take action and adopting a dismissive posture when the student came forward.

The article was powerful. It addressed — to a great extent highlighted and raised — an issue of tremendous importance. Sexual assault on campus is a plague I’ve addressed in this column twice in the past two months. It occurs in epidemic proportions, and even then is widely seen as a substantially under-reported crime. It is a personal and painful crime that elicits emotional reactions from many, many people. This article ran an electric current into the exposed nerve of people across the country. It became the biggest non-celebrity article in Rolling Stone’s history.

And the story underpinning it turned out to be a lie.

Not long after Rolling Stone published the article, reporters from other media sources began looking into the case. It came crashing down fast. The reporter for Rolling Stone, Sabrina Erdely, relied almost entirely on the interview account of the student. When the student balked at providing corroborating information, such as the real name of her attacker or friends who saw her in the immediate aftermath, Erdely did not diligently follow up. She didn’t insist on talking to the witnesses or the other side. She made only passing attempts to interview Eramo. When other reporters did the leg work Erdely failed to do, they found inconsistencies and outright contradictions. Within weeks, Rolling Stone rescinded the entire article.

Of course, the article already made Eramo the target of hateful mail, death threats and vengeful protesters. With her reputation and career in tatters, Eramo fought back.

As I mentioned at the beginning, these lawsuits are not for the weak-willed. Despite admitting it published false statements about Eramo, Rolling Stone still had plenty of legal avenues to pursue. It argued for Eramo to be declared a “public person,” and won. Under the seminal case, and bane of first year law students, New York Times v. Sullivan, the bar for proving libel is much higher when a public person is involved. It’s the same principle Larry Flynt famously used to escape liability for statements about politicians in Penthouse. Rolling Stone then claimed that they didn’t know the statements were false when Elderly wrote them.

In the end, despite the best legal maneuvers of Rolling Stones counsel, the jury believed Elderly’s sloppy investigation meant she should have known the story was false. And for that they will owe Eramo millions.

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