In another possibly lucky break for Rolling Stone, the judge insisted on the damages award on Monday in the defamation case Eramo v. Rolling Stone. The jury heard damages evidence until Monday evening, then were told to decide on an award before leaving for dinner. They awarded $3 million to Nicole Eramo, the University of Virginia dean of students featured in Rolling Stone’s infamous November 2014 story, “A Rape on Campus.”
Of this, the jury awarded $2 million from author Sabrina Rubin Erdely and $1 million from Rolling Stone. I believe Virginia has “pure” joint and several liability, meaning that Rolling Stone will likely end up paying the bulk of the award. Still, the award is surprisingly low, possibly reflecting the baseline damages the jury could quickly agree upon.
On Friday the jury had found defamation on multiple statements against Erdely and Rolling Stone. The jury reconvened Monday to hear damages evidence and, according to the Associated Press, defense counsel had argued that the jury need not award a large sum of damages to send a message because their verdict, a “badge of shame” for Rolling Stone, has already done that.
As I suspected, the jury disagreed. Eramo had asked for $7.5 million, but not having to cough up her full ask offers little comfort for the defendants.
A Reckless Disregard for the Truth
The case started as well as Rolling Stone and Erdely should have expected given the facts. Before trial the judge found that Eramo was a limited-purpose public figure, and the law has a higher tolerance for defamation of public figures. Defaming statements must be false and harmful to reputation, but for public figures, those statements must also be made with malice.
Words don’t always have their common meaning in legal contexts, and malice in defamation generally means that the person making the statement believed the statement was false or acted with reckless disregard for whether the statement was false. Therefore, the defense built a case on believability. They claimed that everyone believed Jackie, the source for the false rape claim and the root statement against Eramo.
The defense might have also gotten a break in the jury instructions. According to reports, the judge instructed the jury that failure to investigate did not constitute malice. I suspect this accounted for most of the jury’s deliberation time. They had to untangle the question: if a journalist’s failure to investigate is not reckless disregard for the truth, then what is?
Whether the jury found that Jackie gave enough warning cues to conclude that Erdely had reckless disregard for the truth for publishing Jackie’s tale, or they recognized the value of journalism ethics, which wisely do not allow journalists broad discretion to publish whatever they happen to believe, of nine statements of Erdely’s from the article and interviews about the article, the jury found actionable defamation in all nine and malice in six of the nine.
The malice standard, however, almost saved Rolling Stone. Of the five statements Eramo claimed against Rolling Stone, the jury found defamation but not malice. But recall, the magazine had updated the story with an editor’s note on December 5, 2014. If they had retracted the article with that note, then Rolling Stone would have prevailed against the public-figure plaintiff. Then-managing editor Will Dana, however, did not remove the story from the website until the Columbia School of Journalism finished its review the next spring.*
The jury found this update constituted a republishing of the defamatory statements, and this time the jury found malice. I suspect that this was their quickest deliberation. The editor’s note was essentially an admission. “We now know that the story is false, but we are leaving it for the public to read anyway” was the gist of Dana’s note.
We Do Want the Public to Believe Our Lie
The publisher and co-founder, Jann Wenner, reinforced the error in his testimony. He stated that he regretted the article retraction when the magazine finally took the article down the next April.
Wenner wanted the jury to believe that while the underlying story was false and the characterization of Eramo as uncaring and indifferent to rape victims was false, the general description of campus rape culture was true. Erdely’s testimony hit this theme as well. They ask the public to believe the overarching assertions are true even though the evidence for those assertions crumbled. It’s an unwelcome revival of the “fake but accurate” defense that failed Dan Rather a decade ago.
While Erdely and Rolling Stone’s article had suggested Eramo was callous, to the jury it was probably Wenner who came off as callous. Even after the fact-checking by other journalists, the police investigation, and the Columbia report, the publisher regretted the retraction?
Wenner also sought pity. He claimed he had suffered as much as Eramo had from this affair. None of that suggests remorse or new wisdom, things that might mitigate a jury’s damages assessments. How credible is the magazine’s claim to a lesson learned when the publisher does not seem to appreciate the difference between stabbing yourself and stabbing your neighbor?
In closing, Eramo’s attorney told the jury she was “collateral damage in a quest for sensational journalism.” The special verdict form and damages suggest the jury agrees.
More Expensive Cases Are Yet to Come
The Eramo decision will also affect the remaining cases. The fraternity named in the article, Pi Kappa Psi, has sued Erdely and Rolling Stone in a separate case, and is asking for $25 million. Three of the individual fraternity brothers implicated in the story sued in yet another case. Their federal case was dismissed this past summer because Judge Kevin Castel in the Southern District of New York found that since they were not named in the article and the alleged attack never occurred, the men were not sufficiently identifiable to be defamed. They might appeal or refile in state court after the Eramo decision.
I doubt Rolling Stone has the assets to pay all the damages awards, and the brand is likely too damaged to attract buyers. After all, the magazine has a long history of courting controversy to sell copies, from running questionable child molestation stories (also Erdely) to turning the Boston Bomber into a heartthrob to fueling vaccination fear. This defamation suit is only the most recent scandal for the magazine — and likely its last.
*While researching for this article, I found that leaving articles up after extensive corrections is a common Internet practice. Some worry about a possible chilling effect on journalism after this verdict, but the effect will be more a welcome cooling from hot takes and irresponsible innuendo that have long lives on news sites long after the facts crumble. The lesson of Eramo: if a story falls apart, take it down. Publish a retraction, not an update.