Lawsuits Filed Following UVA Article Retraction

Colin Pool

Three lawsuits have been filed against Rolling Stone magazine following the retraction of its discredited¹ article, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” This article was previously discussed in our January 2015 issue.²

On November 9, 2015, the Virginia Alpha Chapter of Phi Kappa Psi filed a defamation suit in Charlottesville Circuit Court seeking $25 million in damages to the organization’s reputation.³  The complaint alleged that “Rolling Stone published a devastating story it knowingly failed to verify, in reckless disregard for truth or falsity,” and detailed the threats and vandalism the fraternity experienced in the days following the article’s publication.⁴

On July 29, 2015, three individuals—all University of Virginia alumni and Phi Kappa Psi Fraternity members—filed a federal lawsuit in the Southern District of New York claiming defamation and negligent infliction of emotional distress.⁵  The three alleged that Rolling Stone and the article’s author, contributing editor Sabrina Erdely, “created a simple and direct way” to match the plaintiffs with the attackers portrayed in the article.⁶

The plaintiffs alleged that they were identified as potential attackers on local gossip websites, causing members of their community to “interrogate, humiliate, and scold them.”⁷  One further claimed that the article identified his bedroom as the likely scene of its narrative’s alleged gang rape.⁸  All claimed that the article had a “devastating effect on [their] reputations”⁹ and demanded “judgment in their favor in an amount in excess of $75,000” among other relief.¹⁰

The same day, Rolling Stone announced that managing editor Will Dana would resign after nineteen years with the magazine.¹¹  The magazine stated that “many factors go into a decision like this.”¹²

Previously, on May 12, 2015, UVA Associate Dean of Students Nicole P. Eramo filed a defamation suit against the same Defendants.¹³ Eramo’s duties include serving as the head of UVA’s Sexual Misconduct Board,¹⁴ and she alleged that the article “irreparabl[y] harm[ed]” her professional reputation¹⁵ by falsely depicting her as “callous” toward sexual assault victims.¹⁶  She demanded compensatory and punitive damages totaling $7.8 million.¹⁷

The three lawsuits all cite a March 23, 2015 statement from the Charlottesville, VA Police Department concluding that the article’s central narrative held “no substantive basis of fact.”¹⁸  “Jackie,” the article’s protagonist, had not cooperated with the police investigation, and it was suspended pending additional evidence.¹⁹

On April 5, 2015, Rolling Stone retracted Erdely’s article and replaced it with a self-commissioned report from the Columbia University Graduate School of Journalism, “‘A Rape on Campus’: What Went Wrong.”²⁰  This report concluded that the episode was “a story of journalistic failure that was avoidable.”²¹  Rolling Stone also apologized to those “damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators.”²²  Erdely issued a separate apology stating she “did not go far enough to verify” Jackie’s account.²³

The following day, the Virginia Alpha chapter “announced plans to pursue all available legal action against” Rolling Stone.²⁴  At that time, one blogger commented that a suit brought by the chapter as a corporate entity could face “substantial hurdles,” noting that “bad journalism doesn’t necessarily amount to legal liability.”²⁵

Under Virginia law, defamation plaintiffs must show a “sufficient nexus” between the publication of an allegedly false statement and its negative impact on the individual’s reputation.²⁶  The statement must also be “of and concerning” the plaintiff,²⁷ and he or she must establish the “requisite intent.”²⁸ U.S. Supreme Court precedent requires a “public official” to establish that a defamatory statement was published with “actual malice,” defined as knowledge that the statement was false or a reckless disregard of whether it was false or not.²⁹ UCLA Law Professor Eugene Volokh has argued that Eramo’s status as a “high-level university administrator” may qualify her as a “public official” because she “exercise[s] significant influence over a public institution.”³⁰ Eramo’s complaint alleged that the Defendants acted with “actual malice”³¹ but did not address whether she is a “public official.” The individual Phi Kappa Psi members, all private individuals, alleged that the Defendants’ conduct was “negligent at a minimum.”³²

1 See Paul Fahri &T. Rees Shapiro, Rolling Stone Retracts Discredited U-Va Rape Story, Wash. Post (April 5, 2015), https://www.washingtonpost.com/lifestyle/style/inquiry-of-rolling-stone-u-va-rape-story-finds-series-of-journalistic-lapses/2015/04/05/666e3932-c8de-11e4-a199-6cb5e63819d2_story.html.

2 Micah Kamrass, UVa: A Case for Due Process, Fraternal Law, Jan. 2015, http://fraternallaw.com/wp-content/uploads/2015/01/Fraternal-Law-Newsletter-January-2015.pdf.

3 Complaint, Virginia Alpha Chapter of Phi Kappa Psi Fraternity v. Rolling Stone, L.L.C., No. CL15-479, at 1, ¶ 1, 92 (Va. Cir. Ct. Nov. 9, 2015).

4 Id. at ¶ 5, exhibits. H–M.

5 Complaint, Elias v. Rolling Stone, No. 1:15-cv-05953-PKC, at ¶¶ 1, 121–158 (S.D.N.Y. July 29, 2015).

6 Id. at ¶ 3.

7 Id. at ¶¶ 4–5.

8 Id. at ¶ 4.

9 Id. at ¶ 6.

10 Id. at p. 40.

11 Ravi Somaya, Will Dana, Rolling Stone’s Managing Editor, to Depart, N.Y. Times, July 30, 2015, at B4.

12 Id.

13 Complaint, Doc. 14-1, Eramo v. Rolling Stone, No. 3:15-cv-00023-GEC, at ¶ 1 (W.D. Va. Filed June 9, 2015) (document originally filed in the Circuit Court of the City of Charlottesville on May 12, 2015, see p. 1).

14 Id. at ¶ 7.

15 Id. at ¶ 16.

16  Id. at 10.

17 Id. at Page ID #386.

18 Full Text: Charlottesville Police Statement in U-VA Sex Assault Case, Wash. Post (Mar. 23, 2015), http://www.washingtonpost.com/local/full-text-charlottesville-police-statement-in-u-va-sex-assault-case/2015/03/23/ec4485bc-d193-11e4-8fce-3941fc548f1c_story.html.

19 Id.

20 Sheila Coronel, Steve Coll, & Derek Kravitz, Rolling Stone & UVA: The Columbia University Graduate School of Journalism Report, “A Rape On Campus”: What Went Wrong, Rolling Stone (Apr. 5, 2015), http://www.rollingstone.com/culture/features/a-rape-on-campus-what-went-wrong-20150405.

21 Id.

22 Id.

23 Sabrina Rubin Erdely, Writer of Rolling Stone Rape Article, Issues Statement, N.Y. Times (Apr. 5, 2015), http://www.nytimes.com/2015/04/06/business/media/statement-from-writer-of-rolling-stone-rape-article-sabrina-erdely.html.

24 John Bacon & Emma Hinchliffe, Frat to Pursue Legal Action Against Rolling Stone, USA Today (Apr. 7, 2015, 7:01 AM), http://www.usatoday.com/story/news/nation/2015/04/06/uva-fraternity-lawsuit-rolling-stone/25363051.

25 Jacob Gershman, Sizing Up Phi Kappa Psi’s Potential Suit Against Rolling Stone, Wall St. J. Law Blog, http://blogs.wsj.com/law/2015/04/07/sizing-up-phi-kappa-psis-potential-suit-against-rolling-stone.

26 Schaeffer v. Bouffault, No. 141480, Op. at 19 (Va. June 24, 2015), available at http://www.courts.state.va.us/opinions/opnscvwp/1141480.pdf.

27 Id.

28 Id. at 5.

29 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

30 Eugene Volokh, UVA Associate Dean Nicole Eramo Sues Rolling Stone: An Early Analysis, Volokh Conspiracy (May 12), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/12/uva-associate-dean-nicole-eramo-sues-rolling-stone-an-early-analysis.

31 Complaint, Doc. 14-1, Eramo v. Rolling Stone, No. 3:15-cv-00023-GEC, at ¶ 1 (W.D. Va. Filed June 9, 2015) (document originally filed in the Circuit Court of the City of Charlottesville on May 12, 2015, see p. 1).

32 Complaint, Elias v. Rolling Stone, No. 1:15-cv-05953-PKC, at ¶¶ 127 (S.D.N.Y. July 29, 2015).