On Friday, a Virginia jury determined that Rolling Stone magazine defamed former University of Virginia associate dean of students Nicole Eramo when it published, and then refused to fully retract, its 9,000-word November 2014 "A Rape on Campus" story — and that the magazine did so with malice.
The bar for a successful libel suit with monetary damages has been higher in the U.S. than in other nations for some time. The "with malice" finding in the jury's verdict appears to be far more potentially significant than the Associated Press and the New York Times, the establishment press's two gatekeeper outlets, are willing to recognize.
Since the 1964 Supreme Court ruling in New York Times vs. Sullivan, the requirement for a successful defamation suit with collectible damages is that a public official proven to have been defamed must also prove "'actual malice' -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false."
The ruling was later extended to public figures. The judge in the Rolling Stone case determined that Nicole Eramo was a public figure at the time the magazine defamed her, bringing the lawsuit to within Sullivan's scope.
Perhaps because its reporters did as much as any media outlet in the nation to discredit "A Rape on Campus" shortly after it was published, T. Rees Shapiro at the Washington Post understood what the AP only peripherally referenced, and what the Times failed to recognize at all. But Shapiro still didn't examine the implied damage to Sullivan's "with malice" firewall:
Eramo’s attorneys presented evidence that Erdely had a predetermined notion of what her story would be, discussing the concept of the story that became “A Rape on Campus” well ahead of her reporting, including a note describing how college administrations can be “indifferent” to rape survivors. They said that Erdely had “a preconceived story line” and acted with “reckless disregard” by ignoring conflicting information in her reporting.
“Once they decided what the story was going to be about, it didn’t matter what the facts were,” Clare said.
In other words, if a public official or public figure can demonstrate that a publication was out to discredit them, or even to make a point regardless of the collateral damage to others, i.e., Ms. Eramo, as Erdely clearly was, he or she has a case for malice once a story has been proven false.
Thus, the distance between what Erdely and Rolling Stone did and what the establishment press has for decades done to public officials and candidates for political office it doesn't like, or even to other public figures whose opinions it doesn't like, is suddenly not all that far.
To demonstrate the potential impact, let's look at two interconnected stories with which the Post itself has been heavily involved during the current presidential campaign.
It started when the Post embarrassed itself in covering Donald Trump's now-vindicated claim that "he remembered seeing reports of Arab Americans celebrating the 9/11 terror attacks on rooftops in New Jersey shortly after the twin towers fell." (Trump earlier claimed that these reports involved "thousands" of celebrants, but later clarified that "there were people cheering ... as those buildings came down" without specifying a number.)
The video which follows tells the full story of the breathtaking media malfeasance involved. Below, I'll provide a digest of its points:
Digest:
- In November 2015, Trump claimed "thousands" in New Jersey were celebrating the fall of the World Trade Center's twin towers.
- Shortly after his original claim, Trump reiterated it in an interview with ABC's George Stephanopoulos, but did not refer to "thousands" of celebrants.
- A few days later, the Post "fact-checked" Trump's claim, stating that "an extensive examination of news clips from that period turns up nothing," and insisting that "there is no evidence the alleged celebration ever took place."
- Shortly thereafter, a September 16, 2001 local broadcast was found referring to "swarms" of Jersey celebrants.
- Then came the ultimate embarrassment. The paper, despite its alleged comprehensive reviews, somehow missed that fact that on September 18, 2001, its own reporters wrote that "law enforcement authorities detained and questioned a number of people who were allegedly seen celebrating the attacks and holding tailgate-style parties on rooftops while they watched the devastation on the other side of the river."
- Desperate to cover its tracks, the Post went back to the two reporters: Serge F. Kovaleski, now working at the New York Times, and Fredrick Kunkle. The predictable result: "The reporters who wrote the story do not recall whether the allegations were ever confirmed."
- Trump, with ample justification, wouldn't let it go. In a subsequent speech, he waved his arms wildly as he imitated the reporters trying to walk back what they reported.
- Since Kovaleski has a disability, the Times and the Post contended that Trump, who hadn't seen the reporter since the 1980s and credibly claims not to remember him, was, by waving his arms around, mocking disabled people, even though Trump has until recently routinely waved his arms around while discussing a number of matters in his public speeches. In fact, "at the very same South Carolina rally (where) Trump imitated Kovaleski, he also used similar arm and hand gestures to imitate a very non-disabled general who was asked about ISIS." (Additionally, screen-capture photos were produced which attempted to "prove" that Trump was mocking Kovaleski's specific disability, despite the fact that the reporter's arm "doesn't move when he speaks.")
- Though he has demonstrated that the contention is false and has denounced the press for perpetuating it, "Trump mocks the disabled" has since become an article of leftist faith, to the point where it has been "cleverly" used by the Hillary Clinton campaign (without getting into any of the details described here) in an ad clearly aimed at depicting Trump as someone who routinely mocks the handicapped and disabled.
The Post has never budged from its obviously false "fact-check."
In light of all of this, it would probably not be difficult to find evidence in email communications obtained during lawsuit discovery, or during under-oath lawsuit depositions, that at least some folks at the Post and the Times expressed heartfelt wishes that their now-discredited "Trump mocked disabled people" story would permanently harm or even finish his presidential campaign. Or, lacking that, there's probably no shortage of internal evidence of a "predetermined" agenda at the Post to exact revenge on Trump in any way possible for humiliatingly discrediting its "fact check" using its own reporting. Based on the Rolling Stone verdict, there would appear to be potentially actionable malice based on a predetermined agenda in either instance.
Going forward, the Rolling Stone verdict may force the press to reconsider stories based on little more than speculation and innuendo.
Recall that during the 2008 presidential campaign, the Times published a hit piece involving rumors of an improper relationship between Republican nominee John McCain and lobbyist Vicki Iseman. Iseman sued for defamation. As a result of a money-free settlement, the Times appended an unusual "Note to Readers" to its story:
An article published on February 21, 2008, about Senator John McCain and his record as an ethics reformer who was at times blind to potential conflicts of interest included references to Vicki Iseman, a Washington lobbyist. The article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.
I would argue that under the "Rolling Stone standard," Ms. Iseman would have had a case for demonstrating malice and for winning monetary damages if her legal team could find evidence that a reporter or editor in the early stages of the story was hoping to cause readers to think that McCain was having an affair, even if they couldn't explicitly report it as a fact, or even celebrating the idea that "This will hurt McCain in November's election." Especially given what we've learned about journalists' motivations and willingness to put their thumbs on the scale in political contests in recent weeks, it's hard to imagine that this evidence doesn't exist. I would contend that in a post-Rolling Stone verdict world, a future story like the disgraceful Iseman-McCain 2008 hit piece might never see the light of day. That would be a very favorable development.
You don't even have to be the direct target of a news story to demonstrate malice if you can demonstrate that those who concocted one ultimately proven to be false had a predetermined agenda. But if you are the direct target, as Donald Trump clearly was in the Washington Post-9/11 celebrants-disability saga, your position to win a defamation case and of winning monetary damages because of demonstrated malice based on a predetermined agenda is also stronger.
The Associated Press published two stories covering the Rolling Stone verdict. Its main story didn't even state Ms. Eramo's first name until it quoted her attorney in Paragraph 18. By then, it had cited only her last name five times. Reporter Alanna Durkin Richer's story did not mention evidence Eramo's attorney presented during the trial demonstrating that RS reporter Erdely had a "predetermined agenda."
In a separate "5 Things to Know" story, which will be seen by fewer readers than its primary verdict coverage, the AP did note that "Eramo's attorneys claimed Erdely came into the story with a preconceived narrative."
The New York Times story on the verdict made no reference to Erdely's predetermined agenda. Readers who already knew there was one might conceivably understand what one of the story's quoted experts had to say about the verdict:
"Today’s verdict marks the boundary of how far a writer and her publication can go in breaking the basic rules of journalism — before facing the consequences of false reporting," said Mark J. MacDougall, a partner at the law firm Akin Gump Strauss Hauer & Feld, who was not involved in the Rolling Stone case.
One of those "basic rules of journalism" is that you evaluate and investigate a potential story with an open mind.
If the Rolling Stone verdict causes the press to examine its journalists' and editors' motivations before diving into a story, and to keep away or even drive out those who are the most agenda-driven, it may mark a good-news turning point in the relationship between the media and the public it claims to serve. It's hard to imagine that the establishment media's legal departments aren't seriously considering anew the "consequences of false reporting" because of the verdict.
Cross-posted at BizzyBlog.com.
