Rolling Stone might have to pay for its debunked story on a horrific gang rape at the University of Virginia. An assistant dean at the university, Nicole Eramo, has sued the magazine and reporter Sabrina Rubin Erdely for libel — and an expert on media law says he believes Eramo could win.
Rolling Stone's November 2014 article "A Rape On Campus" sparked national outrage about sexual assault and the culture of the University of Virginia. A student identified only as Jackie told Erdely that she'd been gang-raped in a fraternity house her freshman year after "Drew," a fellow lifeguard at the campus aquatic center, took her on a date. Rolling Stone portrayed the university's response as callous, saying that Jackie was discouraged from reporting the assault and that Eramo took no action when Jackie mentioned other sexual assaults to her.
Then Rolling Stone's story fell apart and was eventually retracted. There was little evidence that what Jackie said had happened actually occurred, and plenty of evidence that it did not, including the fact that "Drew" didn't seem to be a real person. A 12,000-word report on Rolling Stone's editorial process revealed a series of errors — most of which boil down to letting the entire story rest on Jackie's word, without even cursory verification.
Eramo, who is used in the article to represent the UVA administration, is suing Erdely and Rolling Stone for almost $8 million in damages. (The Washington Post has the full complaint.) To find out if she has a case, I called Donald Zachary, a former vice president of law for NBC, an adjunct professor at the University of Southern California, and a graduate of the University of Virginia who has followed the case closely. Our conversation has been lightly edited and condensed.
Libby Nelson: So does Dean Eramo have a chance at winning this lawsuit?
Donald Zachary: Absolutely. To sue for libel, one needs to prove publication, which there clearly was, of a false (clearly was), defamatory (clearly was) statement (clearly was) about a person. She's got all the elements.
The battle is going to be over the standard of proof that Eramo will have to meet, and that in turn will depend on whether she is considered a public or private figure. They have pleaded this as if she is going to have to establish that she is a public figure, even though I think there's a serious question about that.
LN: What would make her a public figure?
DZ: In a Supreme Court case called Gertz v. Welch, involving a lawyer who sued for a defamatory article in the news magazine of the John Birch Society, the Supreme Court said there are three kinds of public figures.
First is an all-purpose public figure. Those are people like Michael Jackson or President Clinton, and clearly the dean is not one of those. The second one is a limited-purpose public figure. That's a person who has thrust herself into a preexisting public controversy in order to affect the outcome. I don't think the dean would count as one of those … I don't think she thrust herself into the controversy surrounding [the broader issue of] rape on campus.
LN: I've covered campus sexual assault as a higher education reporter, and I hadn't heard her name before the Rolling Stone article. So as far as I know, she hadn't been putting herself out there on this.
DZ: The third one is an involuntary public figure. That is a person who through no fault of her own is caught up in a public controversy that she is central to. I have serious doubts that [Eramo] would qualify for that standard. That's usually, for example, an air traffic controller who was on duty when a plane goes down.
Assuming she is not held to be any one of those kinds of public figures, then the court says everybody else is a private figure. All she has to prove is some standard of liability other than liability without fault. In most states, and I believe Virginia is one, that standard is negligence. All she would have to prove to win is that Rolling Stone and the reporter were negligent in their reporting, and I think that's a slam dunk.
But she can't get punitive damages — and she's asked for $7.5 million in compensatory damages — unless she is able to prove that Rolling Stone and the reporter published this article with knowledge of falsity or reckless disregard for the truth.
LN: Do you think she'll be able to do that?
DZ: Knowledge of falsity is hard. That means both the reporter and Rolling Stone knew that they were lying. [Eramo] can make a pretty good case, but from everything I've read, it sounds like they were grossly negligent. They fell below the standard one would expect from any reporter.
For that kind of gross negligence to rise to the level of reckless disregard for the truth? It's very hard to define. But it basically turns on whether [Erdely] had knowledge of facts that put her on guard that the truth was other than what she was reporting.
I think the dean can make a pretty good case of that against the reporter. I notice in their complaint they're trying to set up a claim against Rolling Stone by pointing out all the problems they've had with the reporting from this reporter before. That's usually the way publishers get off: they had no reason to think the reporter was making a mistake.
So that's what it's going to boil down to: whether the instances of problematic reporting that they cite their complaint can be established to the satisfaction of the jury.
LN: When the Columbia report on the Rolling Stone debacle was published, I speculated about whether lawsuits would be filed, and some people said it's a huge risk because the discovery process can be used to ask all kinds of things about how UVA responds to sexual assault and might embarrass the university. Is that true?
DZ: As a reporter or a lawyer for a reporter, the last refuge that one tries to use is truth as a defense. They certainly will not be able, I think, to prove that the article itself was substantially true.
But [Erdely and Rolling Stone] can make Virginia look bad. And Virginia does look bad. One of the facts that came out that was particularly embarrassing to me — I'm a graduate of the University of Virginia and the University of Virginia Law school — was that not one student has been dismissed for sexual misconduct, even when the sexual misconduct was admitted.
Some of us who went to school there do not like the apparent corollary to the honor code. We do not tolerate people who lie cheat or steal or who allow others to do so, but rape a woman? Eh, that's okay. I'm just back from my class reunion, and the university is really concerned about that. So this lawsuit has a downside for them.
That being said, my guess is that Rolling Stone will do everything in its power to settle this pretty quickly.