Why Rolling Stone deserved to lose its “Rape on Campus” defamation case.

Why Rolling Stone Deserved to Lose Its “Rape on Campus” Defamation Case

Why Rolling Stone Deserved to Lose Its “Rape on Campus” Defamation Case

The Slatest
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Nov. 4 2016 4:01 PM

Why Rolling Stone Deserved to Lose Its “Rape on Campus” Defamation Case

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Students walk past the Phi Kappa Psi fraternity house on the University of Virginia campus on Dec. 6, 2014, in Charlottesville, Virginia.

Jay Paul/Getty Images

Rolling Stone magazine, reporter Sabrina Erdely, and the Wenner Media group that publishes the magazine were found liable on Friday for defaming University of Virginia administrator Nicole Eramo in a since retracted article titled “A Rape on Campus,” which presented Eramo as being indifferent to a student’s account of a gang rape that ended up being proven as false.

Eramo had initially sought about $7.5 million in damages from the magazine but could ask for more. The 10-person jury, which ruled unanimously in the defamation suit, will decide on Monday what those damages will be.

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The story, which sparked a national uproar and caused UVA to temporarily suspend its fraternities, centered on the tale of Jackie, a student who described being brutally assaulted by seven men at a Phi Kappa Psi party.

That tale came unglued when it turned out that there had been no party the night of the alleged assault and the man who Jackie was telling people had led the attack on her turned out to be a fictional character she had invented as some sort of a catfishing ploy. While Erdely was found liable on six claims, perhaps the most damaging line in the story was from Jackie quoting Eramo as saying the school wasn’t better about publicizing sexual assault statistics "because nobody wants to send their daughter to the rape school.”*

Eramo, who reportedly was in tears after the verdict was read, had received hundreds of angry letters and emails and faced protests following the story, CBS News reported. In closing arguments, one of her lawyers argued that the magazine turned her into a “villain.” Erdely’s editor, Sean Woods, argued that Eramo should have spoken with the magazine, implying that perhaps one of the biggest journalistic fiascos in recent memory might have been averted had she done so. But Eramo’s lawyers maintained that she couldn’t legally discuss Jackie’s account and that made her an “easy target” for Rolling Stone.

Eramo demonstrated to the jury that the magazine had made her look "odious, infamous or ridiculous” over the course of the longer-than-two-week trial. She also had to prove a high bar of “actual malice” on the part of Erdely and her publishers, which meant demonstrating that they had known what they were reporting was false or published the information with reckless disregard for the truth.

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The story was presented in a way that made it seem to be corroborated by three witnesses, named in the article as Cindy, Andy, and Randall. Here was the key passage:

Disoriented, Jackie burst out a side door, realized she was lost, and dialed a friend, screaming, "Something bad happened. I need you to come and find me!" Minutes later, her three best friends on campus—two boys and a girl (whose names are changed)—arrived to find Jackie on a nearby street corner, shaking. "What did they do to you? What did they make you do?" Jackie recalls her friend Randall demanding. Jackie shook her head and began to cry. The group looked at one another in a panic. They all knew about Jackie's date; the Phi Kappa Psi house loomed behind them. "We have to get her to the hospital," Randall said.
Their other two friends, however, weren't convinced. "Is that such a good idea?" she recalls Cindy asking. "Her reputation will be shot for the next four years." Andy seconded the opinion, adding that since he and Randall both planned to rush fraternities, they ought to think this through. The three friends launched into a heated discussion about the social price of reporting Jackie's rape, while Jackie stood beside them, mute in her bloody dress, wishing only to go back to her dorm room and fall into a deep, forgetful sleep. Detached, Jackie listened as Cindy prevailed over the group: "She's gonna be the girl who cried 'rape,' and we'll never be allowed into any frat party again."

It turned out that Erdely had never spoken with any of the three corroborating witnesses described in the story before it ran. During the trial, the recorded depositions of Ryan Duffin and Kathryn Hendley (Randall and Cindy) were presented to the jury. In them, the two described how Jackie’s account of the night in question was not accurate. Hendley testified that not only did she never say the “girl who cried ‘rape’” line, she wasn’t even told about the fictionalized account of the assault on the night in question but learned of it later. Hendley testified that she stopped being friends with Jackie the following semester after Jackie made up a rumor about her. Duffin, meanwhile, testified a similar account to the one he gave to Washington Post reporter T. Rees Shapiro earlier this year. In that account, he described how Jackie had asked him to exchange text messages with “Haven Monahan,” a person who did not exist but that Jackie said had brought her on the date that led to the assault. (Haven Monahan’s photo that was shown to Duffin turned out to be a Facebook friend of Jackie’s with a different name.)

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Had Erdely spoken to either of these witnesses, who are quoted in the brutally vivid intro of the 6,000-word account—or had her editors insisted she done so—then Jackie’s account likely never would have seen the light of day and Eramo never would have been defamed. If I had to pinpoint the most “reckless” moment in the entire reporting and publication process, that would be it.

In fact, the Columbia Journalism Review’s investigation of the case—which was commissioned by Rolling Stone—cited Erdely’s weak efforts to contact the three purported witnesses, after Jackie declined to help her do so:

It should have been possible for Erdely to identify the trio independently. Facebook friend listings might have shown the names. Or, Erdely could have asked other current students, besides [another source Alex] Pinkleton, to help. Instead, Erdely relied on Jackie.
….
“Ryan is obviously out,” Erdely told Jackie a little later.
Yet Jackie never requested—then or later—that Rolling Stone refrain from contacting Ryan, Kathryn or [the third purported witness] Alex independently. “I wouldn’t say it was an obligation” to Jackie, Erdely said later. She worried, instead, that if “I work round Jackie, am I going to drive her from the process?” Jackie could be hard to get hold of, which made Erdely worry that her cooperation remained tentative. Yet Jackie never said that she would withdraw if Erdely sought out Ryan or conducted other independent reporting.
“They were always on my list of people” to track down, Erdely said of the three. However, she grew busy reporting on UVA’s response to Jackie’s case, she said. She doesn’t remember having a distinct conversation about this issue with Woods, her editor. “We just kind of agreed. … We just gotta leave it alone.” Woods, however, recalled more than one conversation with Erdely about this. When Erdely said she had exhausted all the avenues for finding the friends, he said he agreed to let it go.

If there’s any one decision that led to this fiasco, this was it.

Rolling Stone faces a second lawsuit from the Phi Kappa Psi fraternity for $25 million.

*Correction, Nov. 4, 2016: This line was originally described as the most defamatory one in the piece, but the jury ultimately didn't determine whether or not the line was defamatory in their deliberations.