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Will the Rolling Stone verdict chill speech?

The defamation judgment against Rolling Stone is consistent with a 2016 trend that could have the effect of chilling speech among media entities.

In a year marked by multiple high profile defamation suits, the punishment afforded to the Rolling Stone reporter, Sabrina Rubin Erdely in Eramo v. Rolling Stone LLC, is consistent with the 2016 rulings involving defamation amongst media entities.  As media outlets have been continually found liable for defamation, many have questioned whether the right to free speech has been chilled due to these recent rulings.  While the verdicts have been dismissed by some legal scholars, the fact is that the Rolling Stone case is part of a trend to punish media entities for substandard journalism.  This is a practice that could chill free speech.

In 2014, the magazine Rolling Stone, published the article, “A Rape on Campus.”  The story detailed a female freshman student’s graphic gang-rape account that gained national notoriety.  The article depicted not only the gruesome rape, but also documented the apparent incompetence of the University of Virginia’s Administration in handling matters of sexual assault.  After the story was published, several news entities began investigating the story and discovered inconsistencies that led Rolling Stone to conduct an investigation of its own.  At the bequest of Rolling Stone Magazine, the Columbia school of Journalism conducted a study to confirm that the reporter, Sabrian Erderly, had done her due diligence before publishing her article.  The study found that she had not.

Eramo won at trial where the jury found Rolling Stone and Erdely liable for $3 million in damages.  

The Columbia school of journalism published its findings and concluded that Erderly had failed to confirm the facts and account of the victim in the story, “Jackie.”  The investigation combed through and examined the entire investigative procedure of Erderly, which was composed of more than 400 pages of notes.  Among other things, Columbia’s report took issue with the point-of-view structure of the article.  When a story focuses on the point of view of one person, the obligation of the journalist to verify and search out contradictory points of view is enhanced.  Despite the conclusions in the story, the report also found that all of the research was contemporaneously conducted and the story was inconsistent with the narrative provided by the source, “Jackie.”  Soon after this was discovered, a UVA administrator who was cited in the Rolling Stone article, Nicole Eramo, brought a suit against the magazine and Erdely, alleging defamation of character.  Eramo won at trial where the jury found Rolling Stone and Erdely liable for $3 million in damages.

In an order earlier this year, the District Court judge, Glen Conrad, classified the plaintiff, Ms. Eramo, as a limited purpose public figure.  In a defamation suit, a “public figure” has the incredibly difficult burden of proving that the defendant acted with actual malice or reckless disregard in publishing the content in question.  Cases such as New York Times Co. v. Sullivan and Hustler v. Falwell are exemplary cases that demonstrate the difficulty of recovering under a defamation claim as a public official.  However, the jury is not schooled in case law and instead found that Erderly and Rolling Stone published “A Rape on Campus” with reckless disregard for the truth and were therefore liable for $3 million in damages.

While Columbia’s report found that Erderly and her editor had failed to adhere to journalism standards when confirming the story, Erderly argued that there were instances in the investigation which would have led a reasonable person to conclude that the information given was truthful, and that the inadequacies of the story were a result of a bad source of information, and not bad journalism.  For example, Erdely had interviewed a friend who told Erdely that “Jackie” had confided in her about the rape.  Further, the woman who introduced “Jackie” to Erdely, had referenced Jackie’s rape account in a congressional committee hearing.  The defense attempted to push this narrative to demonstrate that reasonable measures were taken to ensure that the information in the article was true, however, in the end, the defense failed to sway the jury away from the Eramo’s claim that her character had been defamed.

The panel of ten jurors found the evidence sufficient to conclude that Erdely had published defamatory information with actual malice and a reckless disregard for the truth, because she did not conduct journalistic due diligence.

Plaintiff’s counsel presented a case that depicted Erderly as an overzealous journalist who did not adhere to basic journalistic standards and produced a story that conformed to her own narrative, rather than the victim’s.  Erderly is a freelance writer who has specialized in controversial sexual assault articles and has appeared in other notable magazines such as GQ and the New Yorker.  Plaintiff’s counsel pointed out that Erdely had only interviewed the alleged victim’s account of the rape, without confirming any of the information and where there were gaps in information, Erdely filled in those gaps with her own speculation and opinion that conformed to where Erdely wanted the story to go.  The panel of ten jurors found the evidence sufficient to conclude that Erdely had published defamatory information with actual malice and a reckless disregard for the truth, because she did not conduct journalistic due diligence.

Favorable verdicts have been given to public figures in defamation suits including in Bollea v. Gawker Media, LLC, and Eramo v. Rolling Stone, LLC.  The results of these cases have demonstrated that juries are likely to find published material defamatory especially when the publisher seems overzealous in producing content.  With the 2016 verdicts, one cannot help but speculate as to whether these results will adversely impact free speech by causing journalists to be reluctant to pursue risky stories.

Chemerisnky explained that the Bollea and Rolling Stone decisions involved extreme fact patterns that were vastly different from normal news.

This question was posed to the Dean at the University of California, Irvine School of Law, Erwin Chemerinsky during an interview with Bloomberg Media.  Chemerinsky concluded that while these cases were contrary to the expected results of defamation involving a public figure, ultimately, the verdicts would have little effect on media outlets and would not chill free speech.  Chemerisnky explained that the Bollea and Rolling Stone decisions involved extreme fact patterns that were vastly different from normal news.  In other words, the actions taken by both defendants in these cases were so egregious that he doubted that other media outlets would act in the same way, or fail to adhere to journalistic standards.  Admittedly, it is unlikely that another media outlet would make the same errors that the defendants did in these cases; the effect could ultimately deter journalists from pursuing stories due to the fear of liability in the future.

It is easy for many to dismiss this case and say that verdicts like these will have little impact on free speech, however, Gawker Media was forced into bankruptcy following the Bollea judgment and the owner of Rolling Stone, Jann Wenner, was forced to sell a 49% stake in his company to a Chinese Billionaire in order to maintain financial stability in light of the judgment against his company, as well as any potential judgments that may be handed down in the future related to the story.  While this trial has come to an end, Erdely and Rolling Stone will have to defend another lawsuit against the Phi Kappa Psi fraternity.  In light of Eramo’s verdict, it seems likely that the parties will settle out of court.

Sensational journalism can be distasteful, however, punishing media outlets for publications should be reserved for the most egregious violations of ethical standards, and not the questionable instances.

Johnny Hutchens, Senior Staff Writer
About Johnny Hutchens, Senior Staff Writer (17 Articles)
Johnny Hutchens is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. He is originally from Charlotte and graduated from the University of South Carolina in 2012 with a Bachelor of Arts in Political Science. The summer following his first year, he interned as a research assistant for Professor Collins in the Legal Research and Writing department at Campbell.
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