The Rolling Stone defamation trial, the one brought by the University of Virginia dean over the retracted story about campus rape culture, “A Rape on Campus,” heard closing arguments yesterday. The Eramo vs Rolling Stone jury gathered this morning to start deliberations.
While we are on verdict watch, here is a quick summary of the likely focus of the deliberations.
Since the court found that Eramo, the dean, was a limited public figure, she has to prove malice in the publishing of the false story that characterized her as callous toward rape victims on campus. The record clearly shows recklessness on Rolling Stone’s part, but malice is different. It wants a bit of knowledge with the recklessness.
The famous formulation about torts and crimes will work here: Even a dog knows the difference between being stumbled over and being kicked. “Malice” leans to asking if Rolling Stone kicked Eramo. Hence, the defense’s focus on everyone believing Jackie. They argue that if the author, and thus the editors and publisher, believed Jackie, then they might have been naive but not intentionally cruel. From Rolling Stone’s closing:
Sexton [Rolling Stone’s attorney] urged jurors to consider Jackie’s compelling story and questioned why it would be unreasonable for Erdely to believe her when the university itself had taken the rape claim seriously.
“Everyone who encountered this young woman believed her,” Sexton said. “Yet we are the ones, in a sense, being tried for having believed her.”
Why is it unreasonable that Rolling Stone believed Jackie? Because Rolling Stone is supposed employ journalists. Their duties are different than those of university staff. Most notably, they aren’t supposed to merely believe but verify.
That everything went wrong was the point of the Columbia Journalism School report, “An anatomy of a journalistic failure,” which finally prompted a retraction months after it was obvious the story was a fabrication. The decision will likely turn on how the judge words the submission of the malice question — how it defines and allows for recklessness — and how much the jury focuses on journalist standards. The higher the standard, the more likely they are to see more than aggressive naïveté.
The stronger case for malice lies with Jackie, the woman on whom the article was based. The false story, the damning quote at the center of Eramo’s case they all came from Jackie. But she couldn’t be sued. She was protected by the instinct to protect women, still just as effective, perhaps more so, for coming from feminists rather than the patriarchy. If she has lied about something this horrible, then clearly she must be a victim, or so the argument goes. If Eramo had sued her, then public opinion, and likely the jury, would see her as callous, just the way Rolling Stone presented her.
Thus, with malice with as the standard, Rolling Stone might walk this one. If they do, I would expect Eramo to appeal the lower court’s classification of her as a public figure. If that designation fails and the case is remanded, then Rolling Stone will almost certainly lose. The Columbia review was correct: what went wrong? Everything.