A phalanx of lawyers assembled to argue motions in former UVA associate dean Nicole Eramo’s lawsuit against Rolling Stone, along with plaintiff Eramo herself, August 12 in U.S. District Court in Charlottesville.
Eramo’s $7.85 million defamation lawsuit against the magazine, writer Sabrina Rubin Erdley and Wenner Media is scheduled for a jury trial in October, and Rolling Stone attempted to get the suit thrown out on the grounds that Eramo is a public official and must meet a higher standard and prove the November 2014 article “A Rape on Campus” was published with actual malice, which means a reckless disregard for the truth.
The now-discredited article told the story of Jackie, who claimed she had been gang raped at Phi Kappa Psi fraternity in 2012, a tale that almost immediately fell apart and that Rolling Stone retracted in April 2015. The piece also has generated lawsuits by the fraternity and three of its members, the latter of which has been thrown out.
Eramo’s team had three lawyers at the plaintiff’s table, led by Tom Clare, who is also representing ousted Penn State president Graham Spanier, who is suing the school for breach of contract for releasing a report that found he helped cover up Jerry Sandusky’s child molestations.
Rolling Stone has five attorneys listed in its court filings, and lead attorney Elizabeth McNamara is currently representing Tony Schwartz, Donald Trump’s Art of the Deal ghostwriter who has denounced the Republican presidential candidate.
Clare kicked off the proceeding by pointing out that the Rolling Stone article is “quite literally” on exhibit as a “cautionary tale” of media mistakes in the Newseum in D.C.
The article mentioned Eramo 33 times, said Clare, including in a picture that was photoshopped to show her giving a thumbs up gesture to a victim of sexual assault while “Stop victim blaming” placard-carrying protesters marched outside her window.
“Is this too mean?” Rolling Stone’s fact checker had queried in red ink. The magazine “ignored dozens of warnings and red flags” about Jackie’s credibility, said Clare, and “irreparably damaged” Eramo’s reputation by its portrayal of her as an indifferent administrator responsible for handling victims of sexual assault at the University of Virginia.
“It depends on the spin you put on this,” said Judge Glen Conrad, when Clare asserted that the article showed Eramo as unfit to perform her duties and demonstrating a “want of integrity.”
Clare’s partner, Libby Locke, argued that Eramo was a private, not a public, figure who was not responsible for setting policy at the university. As an intake official, Eramo was the one who would get the call from assault victims, and she was legally precluded from discussing those interactions. And although she was head of the Sexual Misconduct Board at UVA, Eramo hadn’t done anything in that role in a year, said Locke.
“She was interviewed 28 times by the campus newspaper and TV stations,” said Judge Conrad. “She was the face of the university on sexual assault.”
Conrad said he anticipates the case will go to trial, with Eramo as a limited purpose public figure, a designation that requires her to prove actual malice on the part of Rolling Stone.
“This may be the most clear case of actual malice the Fourth Circuit has seen,” assured Locke.
When Rolling Stone republished the article online December 5, 2014, with the editor’s note that the magazine had lost confidence in Jackie’s credibility, that constitutes actual malice, said Locke, because it stood behind the reporting regarding Eramo, including the statement Eramo denies she said about why there are no statistics on sexual assault: “Nobody wants to send their daughter to the rape school.”
“Rolling Stone knows how to issue a retraction, and it did so on April 5,” said Locke.
For Rolling Stone attorney McNamara, there were multiple individual grounds to dismiss the case, most notably because Eramo is a public figure and she failed to establish actual malice.
“Rolling Stone has apologized to her,” McNamara said. “Rolling Stone took prompt action within hours when it became apparent there were questions.” Up until December 5, the defendants believed Jackie was credible, she said.
And Eramo’s claim that it was actual malice for Rolling Stone to publish an apology sends a “chill to publications that they correct errors at their peril,” said McNamara. “Publishing a retraction or apology is evidence of not actual malice.”
She asked that the lawsuit be dismissed, a request Conrad seems unlikely to agree to, but he said he will rule on whether Eramo is a public figure.
A two-week trial is scheduled to begin October 11.