Nicole Eramo is a limited-purpose public figure—but may be able to show reckless disregard on Rolling Stone's part

|The Volokh Conspiracy |

In yesterday's decision in Eramo v. Rolling Stone, LLC, the judge held:

1. Nicole Eramo, the University of Virginia associate dean of students, whose handling of an alleged sexual assault was faulted in the Rolling Stone "Rape on Campus" article, is a limited-purpose public figure, because she had injected herself into a preexisting public controversy about "UVA's response to allegations of sexual assault" generally (not limited to this case):

Eramo voluntarily assumed a position of "special prominence" on the issue: she took advantage of her access to local media, specifically by appearing on WUVA, providing input to The Cavalier Daily, and speaking to local affiliates of national news networks. Furthermore, the volume of her media appearances, and in some instances their depth, supports the conclusion that Eramo attempted to influence the outcome of the controversy.

This means that, to win her libel case against Rolling Stone and Sabrina Rubin Erdely, she has to show that the defendants knew their assertions were quite likely false and yet recklessly disregarded that possibility. (That's the misleadingly named "actual malice" test, which isn't actually about malice.)

2. There is enough evidence to go to the jury on the question of whether defendants indeed knew that the accusations were likely false, for instance (some paragraph breaks added):

Pointing to Erdely's own reporting notes, plaintiff … forecasts evidence that could lead a reasonable jury to find that Erdely had "obvious reason to doubt [Jackie's, the alleged rape victim's,] veracity" or "entertained serious doubts as to the truth of [her] publication."

First, plaintiff offers evidence that could lead a jury to determine that Erdely had a preconceived story line and may have consciously disregarded contradictory evidence….

Second, plaintiff has produced evidence supporting the inference that Erdely should have further investigated Jackie's allegations. The record suggests that Erdely knew the identity of at least one of the individuals who found Jackie the night of her alleged rape. Erdely, however, did not seek to contact this individual. Plaintiff cites evidence that could lead a factfinder to determine that others at Rolling Stone knew Erdely did not reach out to these individuals to corroborate Jackie's story.

Additionally, Jackie never provided the full names of her assailants. Consequently, Erdely was unable to test the reliability of Jackie's story with them. The record also supports a finding that Rolling Stone knew that Erdely had not approached these purported wrongdoers. Erdely's notes similarly reveal that Jackie had told Elderly she possessed, or at least had access to, certain documents that could have corroborated her story of the rape. Erdely never received a copy of these documents, and Erdely's notes imply inconsistencies in Jackie's claims about them.

[Moreover,] Erdely, despite trying, did not speak with Jackie's mother to confirm Jackie's claim that her mother had destroyed the blood-stained dress Jackie wore the night of the alleged rape. From these facts, a reasonable jury could conclude that Erdely should have investigated further, and that her failure to do so could imply that Erdely acted with actual malice.

Third, plaintiff has presented evidence suggesting that Erdely had reasons to doubt Jackie's credibility. E.g., Erdely Reporting Notes (Erdely noted disbelief about Jackie's assertion as to the identities of the two other victims; Erdely was put on notice that Jackie's alleged rape, by individuals supposedly being recruited into the fraternity, occurred several months before fraternity recruitment events; and that Erdely found Jackie's story of three women being gang-raped at the same fraternity "too much of a coincidence"). Erdely was aware that Jackie's account of her alleged rape had changed but, nonetheless, did not press Jackie to explain the inconsistencies.

Rolling Stone's fact checker was also cognizant of Jackie's inconsistent stories. Moreover, a jury could find that Rolling Stone knew that Jackie's version of the story had not been vetted. The court believes this evidence, taken in a light most favorably to the nonmoving party, could support a finding that Erdely and Rolling Stone were cognizant of Jackie's inconsistencies and credibility problems at the time of publication.

Fourth, plaintiff offers evidence suggesting that at least three individuals advised Erdely that her portrayal of Eramo was inaccurate…

Fifth, plaintiff points to deposition testimony from which a jury could reasonably infer that Erdely harbored ill will for Eramo or intended to injure the administration…. While ill will or intent to injure alone is insufficient to show actual malice, plaintiff has also advanced evidence indicating Erdely had a preconceived story line, did not adequately investigate in the face of contradictory information, and had a reasonable basis upon which she would likely understand that her portrayal of Eramo was inaccurate….

Arguably, a reasonable jury could find that none of the evidence presented independently supports a finding of actual malice by clear and convincing evidence. Taken as a whole, however, a jury could conclude otherwise….

3. Most of the statements that Eramo says were defamatory were factual assertions and not just opinions; they could therefore form the basis of a libel claim:

For example, a jury could find that the "trusted UVA dean" [referring to Eramo] either did or did not discourage Jackie from sharing her story, that Eramo did or did not tell Jackie that "nobody wants to send their daughter to the rape school," and that Eramo did or did not have a nonreaction to Jackie's assertion that two other individuals were raped at the same fraternity. Even the statements asserting that the administration should have acted in light of Jackie's allegation that two other individuals were raped at the Phi Kappa Psi fraternity is capable of conveying a verifiable fact: that the administration did not act.

4. And those statements could indeed be interpreted in a way that would injure Eramo's reputation:

A reasonable factfinder could conclude that the challenged statements imply the defamatory meaning plaintiff ascribes to them: that Eramo discouraged Jackie from sharing her story, including filing a formal complaint; that Eramo had no reaction to Jackie's story of two other victims; and that the administration did nothing in light of these allegations.

5. The case should therefore go to the jury to determine whether the statements were false, whether they tended to injure Eramo's reputation, whether Eramo suffered damages as a result of the statements, and whether the defendants knew that the statements were likely false and acted in reckless disregard of that possibility.

Thanks to Robby Soave (Reason) for the pointer; see also Jacob Gershman's Wall Street Journal story.