A Verdict Against Rolling Stone

Tim Burke, Manley Burke, tburke@manleyburke.com

Rolling Stone and the author of the discredited article describing an alleged rape in a University of Virginia fraternity house were found liable for defaming a University of Virginia (UVA) Administrator by the manner she was described in the article.  That administrator was Nicole Eramo, the Associate Dean of Students, at that time of the publication.  On November 8th, a jury awarded Eramo $3 Million Dollars in damages.

That may not be the end of the damages Rolling Stone and the article’s author have to pay.  They will face a trial late next year in the suit brought by Phi Kappa Psi’s Virginia Alpha Chapter where the rape was falsely alleged to have taken place.

On the other hand, three members of that fraternity failed to even get to trial with their defamation claims.  These members were not named in the article, but believed that their family and friends would assume the article was about them because of certain similarities to characters described in the article.

Nicole Eramo was very negatively portrayed in the infamous Rolling Stone article.  Eramo’s duties included the intake of sexual assault complaints and providing support to victims.

Eramo had filed suit against Rolling Stone, the author of the article, and others associated with it in a Virginia State Court.  The defendants removed the matter to federal court in Charlottesville, Virginia.  To get her case to the jury, Eramo first had to survive a Motion for Summary Judgment against her.

It is helpful to note how the Eramo court described the work of the author of the article:

“Erdely (the author) relied heavily on the narrative Jackie (the alleged victim) provided in writing the article.  So much so that she did not obtain the full names of Jackie’s assailants or contact them, nor did Erdely interview the individuals who found Jackie the night of her alleged gang-rape.  Similarly, Erdely did not obtain certain corroborating documents Jackie claimed to have access to and was unable to confirm with Jackie’s mother, Jackie’s assertion that her mother had likely destroyed the dress Jackie wore on the night of the alleged rape.  Additionally, Erdely was not granted an interview with Eramo to ask about the University’s policies.  Instead, Eramo’s superiors made UVA President Theresa Sullivan available.  Eramo’s complaint alleged that the article destroyed her reputation resulted in wide criticism of her in the media and caused her to suffer ‘significant embarrassment, humiliation, mental suffering and emotional distress.’”

As is well known, Rolling Stone acknowledged errors in the article, blaming the alleged victim for misleading the article’s author.  The Columbia Journalism Review did its own report, describing the article as a “journalistic failure,” and that the magazine and the author had “set aside or rationalized as unnecessary essential practices of reporting.”  Rolling Stone ultimately “officially retracted” and removed the article from its website.

Following the close of discovery, Eramo moved for partial summary judgment on the question of if the article defamed her, while the defendants moved for summary judgment on the complete case.

The first issue to be decided was whether Eramo was a public official or a limited-purpose public figure.  That makes a difference because if she was a public official, or a limited-purpose public figure, she would face a more difficult burden requiring her to prove by clear and convincing evidence that the defendants acted with actual malice.  To find her to fit within that category, defendants would have to prove that 1) Eramo had access to effective channels of communication, 2) she had voluntarily assumed a role of special prominence in the public controversy, 3) she sought to influence the resolution or outcome of the controversy, 4) the controversy existed prior to the publication of the alleged defamatory statement, and 5) she retained public-figure status at the time of the alleged defamation.

Eramo had been prominently involved in responding to allegations of sexual assault at UVA and had access to the local media.  She used that access, speaking frequently to local affiliates of national news networks, and authored opinion pieces on the issue.  As a result, the court found that Eramo was a limited-purpose public figure.

Because she was a limited-purpose public figure she must prove actual malice.  It is difficult for a limited-purpose public figure to prevail in a defamation case because proving actual malice is a heavy burden.  As the court stated, it “requires at a minimum that statements were made with reckless disregard for the truth.”  The defendants must have “entertained serious doubts as to the truth of their publication.”

In this case, the court looked at several factors.  First, Eramo offered evidence that the author had a preconceived story line and may have consciously disregarded contradictory evidence.  Second, though the author should have pursued individuals who may have had evidence about the alleged rape, she failed to do so.  Third, the author had reason to doubt the alleged victim’s credibility.  Fourth, at least three individuals told the author that her portrayal of Eramo was inaccurate.  Fifth, there was evidence that the author “harbored ill-will for Eramo or intended to injure the administration.”

Both sides had moved for summary judgment on the issue of whether or not the statements in the article constituted libel, written defamation.  That is, did the article contain a “provably false factual connotation” “of or concerning the plaintiff” intending to harm her reputation.  If a jury were to find that the article contained merely “exaggerated rhetoric” or simply “the opinion of the author,” it might be found that even untrue statements might not be actionable.

The court elected to leave to the jury the determination as to whether or not the statements regarding Eramo in the article were objectively untrue, falsely called into question her fitness to perform the duties of her office or indicated that she lacked the integrity to do so, and made with actual malice.

That is what the jury did on November 4^th when it found for Eramo on all counts.  On November 7^th, the jury was brought back to determine what damages were due to Eramo.

In one of two other separate lawsuits, three members of the Phi Kappa Psi Fraternity filed a lawsuit against the article’s author, Rolling Stone, and a related entity, but were not as successful.  While they were not named in the article, they argued that descriptions in the article could have led people to believe that specific facts referred to each one of them specifically.  As the court described it, these members claimed that “the article nevertheless contained details that could prompt their friends, family and colleagues to erroneously infer that they participated in a gang rape.”

The defendants filed a motion to dismiss the case, arguing that the complaint was too vague and remote from the plaintiffs’ circumstances to be “of and concerning” them.  To sustain a defamation claim under New York law where this case was brought, the plaintiffs had to establish that the reading public would “have understood the allegedly defamatory statement to be ‘of and concerning’ the plaintiff” and “the burden to prove that was on the plaintiff.”

One plaintiff claimed that the description contained in the article of where the alleged attack occurred would be understood by those who knew the house to be describing his bedroom.  Another plaintiff, who was the fraternity’s rush chair, claimed readers would have concluded he was involved because the article made the alleged rape “seem like an initiation ritual.”  That second plaintiff also claimed that he was an avid swimmer in the UVA Aquatics Center and he argued that because the article claimed the alleged victim had met her unidentified assailant while “working lifeguard shifts together at the University pool” and people would therefore have connected him to the events.  The final plaintiff claimed that because he had already graduated and yet spent the next 15 months on campus and frequently rode his bike there, he would have been connected to the article because the article described that “all the boys involved had graduated and the victim had just seen,” prior to the article being published, “one of the boys riding his bike on the grounds….”

The court ruled that the scant details in the article failed to designate any of the plaintiffs in such a way that those who knew them would have understood the article to be specifically describing any of them.  Thus the complaint failed to “plausibly allege that the article was of and concerning” any of the plaintiffs.  As a result, the court dismissed their case.

But Rolling Stone has not heard the last from the members of Phi Kappa Psi’s Virginia Alpha Chapter.  The Chapter has its own suit against the magazine and its author.  On September 1^st Judge Richard E. Moore denied Rolling Stone’s demurrer, analogous to a motion to dismiss.³  A press release issued that day by the Chapter quoted Tom Albro, a Charlottesville, Virginia attorney serving as the Chapter’s lead counsel, as saying “The Virginia Alpha Chapter of Phi Kappa Psi Fraternity appreciates Judge Moore’s carefully considered decision to reject Rolling Stone’s attempt to dismiss our defamation claim.  We remain committed to seeking justice and accountability at trial for the harm the magazine, its reporter and its editors inflicted on the organization and its members.”

In any defamation case the statement that defames must be “of and concerning” the alleged victim of the written libel or spoken slander.  In deciding if the Fraternity’s care would continue, Judge Moore considered the Fraternity’s argument that the article referenced a “Phi Kappa Psi brother,” “his fraternity Phi Kappa Psi,” “Phi Psi,” “Phi Kappa Psi date function,” “their fraternity,” “PKP,” and “PKP house.”  He summed it up this way:

Phi Kappa Psi at UVA is mentioned at least 18 times by name (Phi Kappa Psi, PKP or Phi Psi).  There are nine other references to ‘that fraternity,’ ‘a frat,’ ‘the fraternity,’ ‘his frat’…There are at least eight times where the term ‘gang rape’ is used, many in the same phrase or sentence as ‘Phi Kappa Psi’.

As the Judge noted, the published article even contained a photo of the fraternity house with letters PKP clearly displayed.  Given the direct references to the fraternity by name, the Judge had little difficulty determining that the alleged defamatory statements were “of and concerning” the fraternity chapter.

The court also considered if the language in the comments about the fraternity could be found by a jury to be defamatory noting:

“When the term ‘gang rape’ and PKP are uttered in the same breath, it seems inescapable.  The repeated references to ‘gang rape,’ in conjunction with the fraternity, along with the specific behaviors, acts and statements described or repeated are clearly capable of defamatory meaning.  And these are direct statements, not just indirect or innuendo.”

Finally, Judge Moore rejected the defendants arguments that the statements about which Phi Kappa Psi complained were merely statements of opinion.  If they were opinion as opposed to fact, then they were not defamatory.  But as the court noted, “In this case, there are numerous statements that are factual assertions, and demonstrably true or false.”  The veracity of those statements will be for the jury to determine after trial.  If the statements were proven to be true –highly unlikely given Rolling Stone – has apologized for having made them – there is no defamation because truth is a defense.  But if those statements are found by a jury to be false and to have defamed Phi Kappa Psi, then the jury will also determine the amount of damages to be awarded.

Sexual assault remains a serious issue on campuses across the country.  While the author of the Rolling Stone article may have been motivated by a desire to address that issue and call attention to it, she and her magazine did significant damage to the movement at issue by making wild accusations they could not prove and did real damage to those the article defamed.  A significant price in terms of damage to the reputation of Rolling Stone has already been paid, but the jury awards will exact a financial penalty as well intended to compensate the innocents who were damaged by the defamatory comments.

1 Nicole P. Eramo v. Rolling Stone, LLC, et al., Civil Action No. 3:15-CV-00023, United States District Court, W.D. Virginia, Charlottesville Division (Partial Summary Judgment decided Sept. 22, 2016).

2 Elias, et al. v. Rolling Stone, LLC, et al., Case No. 15-CV-5953 (P.K.C.) United States District Court, S.D. New York (decided June 28, 2016).

3 Phi Kappa Psi v. Rolling Stone, et al., Demurrer. Virginia Circuit, Sixteenth Judicial Court File No. CL15-479; Hearing May 17, 2016, Letter Decision by Judge Richard E. Moore, issued August 31, 2016.