We have been following the ongoing controversy involving Sabrina Rubin Erdely, the investigative journalist who wrote a feature story for Rolling Stone on an alleged sexual assault on the campus in Charlottesville, Va. I previously wrote about the curious response of Rolling Stone in admitting a range of shocking journalistic failures but refusal to fire anyone, including Erdely, for a story that clearly defamed a host of people and damaged the reputation of both the University of Virginia as the Phi Kappa Psi fraternity house. I have commented in the past that Rolling Stone can clearly be sued in the case and probably should be sued. Now the first such lawsuit has been filed. University of Virginia associate dean of students Nicole Eramo has filed a multi-million dollar defamation lawsuit against Rolling Stone alleging that the magazine destroyed her reputation in her portrayal as callous and indifferent and that she was vilified by Erdely and the magazine. The magazine printed a photo illustration of Eramo that allegedly was edited from a mundane Cavalier Daily photo to a more menacing image that “demonstrates the lengths Erdely and Rolling Stone were willing to go to portray Dean Eramo as a villain.”
One of the most interesting aspects of the complaint below is that the accusing student remains not only anonymous but unnamed as a party. Presumably, Eramo is contesting not just the characterization of Erdely but the account of the student. Yet, the student is not named as a defendant. There are ample reasons to name the student in terms of litigation tactics but the optics of suing a student may have been too much for the Eramo. Not naming the student does not mean that she will not be called as a witness by the defense to bolster the defense that the magazine acted reasonably. Moreover, as a likely public figure due to her position at the university, Eramo may face the higher standard of showing a knowing disregard of falsity or reckless disregard by the defendants. The testimony of the student would be key in establishing or refuting that showing under controlling case law.
Rolling Stone magazine ran the story containing detailed accounts of the rape of Jackie, but it agreed to a demand by the alleged victim not to interview the accused man. It was an astonishing lapse of journalistic principles and the magazine also failed to fully investigate the details of the alleged rape. Notably, however, the magazine issued an apology but then removed this line: “In the face of new information, there now appear to be discrepancies in Jackie’s account, and we have come to the conclusion that our trust in her was misplaced.” That line was replaced with this line “These mistakes are on Rolling Stone, not on Jackie.”
The story “A Rape on Campus” by Sabrina Rubin Erdely, discussed how Jackie was a freshman in 2012 when she was forced to perform oral sex by seven men at the prestigious Phi Kappa Psi fraternity house. Various people raised questions over the reporting, including the fact that some of Jackie’s closest friends questioned her account despite Erdely’s insistence that her friends’ accounts were “consistent” with her story. These inconsistencies include Jackie’s initial claim, according to friends and the Washington Post, that she had been raped by 5 men and then later claiming it was 7. Other friends said that there was an absence of any physical injury despite the claim of the magazine that she emerged bloodied and battered. The fraternity also said that there was no party on the day identified by Jackie and that her identification of “Drew” did not match anyone at the house and that in conflict with her claims, no one at the house worked as lifeguards at the pool. One of the named attackers was from a different house and no one by his name is a member at the Phi Kappa Psi. The man named said that he never met Jackie.
The fact that the magazine agreed not to interview the accused was widely condemned. The magazine stated that “[b]ecause of the sensitive nature of Jackie’s story, we decided to honor her request not to contact the man who she claimed orchestrated the attack on her nor any of the men who she claimed participated in the attack for fear of retaliation against her.” A Rolling Stone editor claimed that it could not reach some of the men, though others including the Post were able to do so.
Eramo is seeking more than $7.5 million in damages from Rolling Stone, its parent company Wenner Media and Erdely. The most immediate threat is that discovery will now proceed and that could expose Rolling Stone and Erdely to even greater criticism. After all, editors claim that they were told by Erdely that she could not reach critical witnesses and were kept in the dark on some details — a conflict that could divide witnesses.
Eramo handles alleged sexual assaults and claims that she has been devastated emotionally by the portrayal and her professional standing injured. Erdely is the focus of the complaint, which alleges that the false account and image “were the result of a wanton journalist who was more concerned with writing an article that fulfilled her preconceived narrative about the victimization of women on American college campuses, and a malicious publisher who was more concerned about selling magazines to boost the economic bottom line for its faltering magazine, than they were about discovering the truth or actual facts.”
The most damaging portrayal was not just a callous disregard of the story (something that Jackie’s friends were also accused of) but that Eramo sought to suppress “Jackie’s alleged gang rape to protect UVA’s reputation.” That would seem enough for a case to go to trial. Indeed, the effort of Rolling Stone to avoid firing people and minimize the damage could come back to haunt the publication in this litigation. The carefully worded statements did little to redeem the reputation of Eramo and others in the story.
Here is the complaint: Eramo Complaint