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UVA Rape Story Collapses; Duke Lacrosse Redux
Topic Started: Dec 5 2014, 01:45 PM (60,400 Views)
cks
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I hope that the fraternity will prevail as well and that they take Wenner and Rolling Stone to the cleaners. Wenner had announced that he was covering Erdley's costs. Just wonder if that will continue.

The decision made for a very happy Friday.
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LTC8K6
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Assistant to The Devil Himself
I didn't expect that result. Thanks for following the reports.
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https://www.theguardian.com/media/2016/nov/05/rolling-stone-uva-rape-story-trial-media-lawsuits

Rolling Stone's rape story trial highlights a hardening attitude toward the media
Edward Helmore - 11/5/16

The finding that Rolling Stone magazine defamed a University of Virginia administrator is the latest in a series of legal decisions that experts say signal a hardening attitude to the media and other institutions.

A jury on Friday found that Rolling Stone and writer Sabrina Rudin Erdely met the extraordinary standard of acting with “actual malice” in their depictions of Nicole Eramo, the university’s former associate dean.

In her lawsuit for $7.5m, Eramo claimed the publication’s story cast her as the “chief villain” who “silenced” Jackie or “discouraged” her from reporting her alleged rape to police.

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The story published in November 2014 told the story of a University of Virginia student identified only as “Jackie” who claimed that seven members of Phi Kappa Psi raped her in a gruesome fraternity initiation. The story initially spurred an outpouring of outrage until it fell apart under scrutiny from other news outlets. Within weeks, Rolling Stone had to apologize for not thoroughly fact-checking it.

Jurors in this case had to find that the magazine’s reporter and editors not only made a mistake but had knowledge of the falsity or reckless disregard for the truth.

“It has to be egregious,” said Samantha Barbas, a law professor specializing in media at the University at Buffalo. “The press has to know that something is false and print it anyway.”

The verdict comes on the heels of several recent high-profile cases where juries have found against institutions in cases involving invasion or privacy or defamation issues.

Last month the News & Observer of Raleigh was ordered to pay about $6m in a state bureau of investigation agent’s libel lawsuit.

Earlier this year a jury in St Petersburg, Florida, delivered a $115m verdict against Gawker Media after it posted a sex tape of Hulk Hogan with his best friend’s wife. The verdict forced the sale of the company, and last week Hogan and Gawker’s former owners settled for $31m – but not before the now-defunct site filed for bankruptcy.

A month earlier, US sportscaster Erin Andrews was awarded $55m against Marriott Hotels after a Tennessee jury found the chain had not protected her from being filmed in the shower by a stalker.

Barbas argued that the series of decisions signal that juries, reflecting public sentiment, are “disenchanted with freedom of speech” since many had personally experienced, through social media, the damage that online speech can have.

“We’ve entered an anti-media cycle and we’re seeing people, particularly public figures, getting a lot more litigious about what appears in the media, whether that’s libel or invasion of privacy.” At the same time, Barbas said, “Public figures are becoming more confident juries will be more sympathetic to them.”

Unlike the Gawker case, which claimed invasion of privacy, Eramo sued the magazine for allegedly casting her as the “chief villain” in its article. Because the judge ruled that Eramo was a “limited-purpose” public figure, she couldn’t simply claim that Rolling Stone was negligent in its reporting – she had to argue that the publication acted with “actual malice”.

While Rolling Stone went to great lengths to unpick the failures of its reporting and fact-checking, including commissioning a report from the Columbia School of Journalism, it did not retract its characterization of Eramo.

Mary-Rose Papandrea, a University of North Carolina law professor, said the greatest surprise in the case was that “there wasn’t a greater awareness to the high risk of litigation”.

“This can only happen when journalists are too trusting in their sources and seemed to be hiding their heads in the sand to the truthfulness of what they’re publishing,” Papandrea said.

In finding Rolling Stone liable, jurors accepted Eramo’s claim that Erdely, the reporter, acted with actual malice on six claims – two statements in the article and four statements to media outlets after the story’s publication. Barbas said the statements in the original article went from being inaccurate to libelous when Rolling Stone republished the article with corrections.

“Rolling Stone knew that Jackie was not a credible source yet despite that they published the story and let it stay on their website. They reaffirmed the truth of it despite, by that point, having serious doubts about Jackie’s credibility. So that was enough to constitute actual malice.”

In one objectionable statement, Erdely wrote that Eramo had a “nonreaction” when she heard from Jackie that two other women were also raped at the same fraternity. Another was Erdely’s statement to the Washington Post days after the story was published that the University of Virginia administration chose not to act on Jackie’s allegations “in any way”.

Barbas believes the consequences of this verdict could be farther-reaching than the Gawker verdict, which was based on the broadcast of a sex tape on a site known for sensationalistic or gossipy material.

“It’s not a sex tape, it’s reporting on a legitimate subject. For a jury to say there’s actual malice – a reckless disregard of the truth – is pretty strong and that’s why this may have a stronger impact on the media than the Gawker case.”

For Rolling Stone, once at the forefront of 60s social upheavals, the verdict will come as a bitter blow. Not only has its reputation suffered, but it still faces a $25m defamation lawsuit from the University of Virginia’s Phi Kappa Psi fraternity – where Jackie claimed her sexual assault took place. That case is set to go to trial next year.
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http://www.washingtonexaminer.com/rolling-stone-verdict-should-help-fraternity-also-suing-magazine/article/2606715

Rolling Stone verdict should help fraternity also suing magazine
By Ashe Schow (@AsheSchow) • 11/7/16 3:51 PM

Former University of Virginia Dean Nicole Eramo was not the only one who sued Rolling Stone for a negative portrayal in the magazine's now-discredited article about a gang rape.

While the lawsuit brought by three members of the Phi Kappa Psi fraternity was dismissed in June, the lawsuit filed by the U.Va. chapter of the fraternity as a whole continues.

The Friday verdict that found Rolling Stone, its publisher and the author of the retracted story liable for defamation on multiple counts will likely help the fraternity chapter. The fraternity, like Eramo, has to prove that Rolling Stone and author Sabrina Rubin Erdely knowingly published false information about them.

A jury has now ruled that Rolling Stone and Erdely did so with Eramo, and it looks like the fraternity will have a much easier time.

I was uncertain that Eramo would prevail, because while it was clear Erdely was derelict in her duty as a journalist, I wasn't sure Eramo could prove the author was out to get her.

The doctored photo in the magazine that made Eramo look sinister, however, helped the jury decide. Also, students who had spoken to Eramo about their sexual assault accusations told Erdely prior to publication that her description of the dean was wrong, but she kept it as is.

For the fraternity, evidence presented in Eramo's trial revealed that Erdely began writing her article with a severe bias against fraternities. Erdely, in her interview with the rape hoaxer Jackie, said the fraternity members who allegedly gang-raped the accuser represented a "banality of evil" and that she wanted to "get these guys."

Erdely also cited to Jackie research she had found that claimed fraternity members were "more likely to rape people" and hold "rape-supportive attitudes." It was clear from this interview that Erdely had a preconceived notion about fraternities and indeed wanted to attack them.

A lawyer for Eramo perhaps summed it up best in his closing arguments: "Once they decided what the article was going to be about, it didn't matter what the facts were."

This line, the verdict favoring Eramo, and Erdely's pre-existing bias against fraternities should make the next lawsuit against the magazine a slam dunk.
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The fact that fraternity members had to move out of the house; that the fraternity was vandalized; and of course their activities suspended all demonstrate that a real harm was done. Plus, the fraternity members who suffered were not public figures by any definition of the word.
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MikeZPU

cks
Nov 7 2016, 05:12 PM
The fact that fraternity members had to move out of the house; that the fraternity was vandalized; and of course their activities suspended all demonstrate that a real harm was done. Plus, the fraternity members who suffered were not public figures by any definition of the word.
cks: all excellent points, especially that last one.

I bet the fraternity members also received death threats, and were vilified around campus.

I wonder how they were treated by some of the liberal professors there.

Rolling Stone surely operated with a "reckless disregard for the truth" in this case.

Erdely did nothing to try and verify Jackie's story.

The fact that she did not talk to Jackie's friends proves that. Jackie
told her (Erdely) that her friends didn't want to talk to her; that alone
should have set off bells and alarms.

And remember Erdely also said that Jackie told her that after hearing
that she had been gang-raped and brutalized that her friends told her
not to go to police fearing that it would affect their social status on-campus.

And, yet, Erdely still believed her after hearing a total BS story like that.

That, my friends, is someone who operating with a pre-determined narrative.
Edited by MikeZPU, Nov 7 2016, 06:00 PM.
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MikeZPU

Foxnews reporting that the jury has awarded Eramo $3 million :)

http://www.foxnews.com/us/2016/11/07/uva-dean-awarded-3-million-in-rolling-stone-defamation-case.html

CHARLOTTESVILLE, Va. – Jurors awarded a University of Virginia administrator $3 million Monday for her portrayal in a now-discredited Rolling Stone magazine article about the school's handling of a brutal gang rape a fraternity house.

The 10-member jury's decision came after they concluded Friday that the magazine, its publisher and reporter Sabrina Rubin Erdely were responsible for defamation, with actual malice, of former associate dean of students Nicole Eramo in the 2014 story "A Rape on Campus."

Eramo sued the magazine for $7.5 million, claiming it cast her as a villain who sought to discourage the woman identified only as Jackie from reporting her alleged assault to police. A police investigation found no evidence to back up Jackie's rape claims.

Jurors heard testimony Monday about the extent to which the story has damaged Eramo's life and reputation before they began deliberating to decide how much to award her in damages.

Edited by MikeZPU, Nov 7 2016, 10:25 PM.
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cks
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3 million is good. I never thought that they would come in with 7.5 million. Jan Wenner may well cut Erdley loose after this and have her deal with the fraternity which may well get much more.
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http://www.cbsnews.com/news/uva-dean-wanted-to-disappear-after-rolling-stone-story/

UVA dean "wanted to disappear" after Rolling Stone story
AP November 7, 2016, 3:06 PM

CHARLOTTESVILLE, Va. - In the days after the release of a now-retracted Rolling Stone magazine story about a brutal gang rape, the University of Virginia administrator portrayed in the article was convinced she would be fired, feared for her safety and felt like her world was crashing down around her, she told jurors Monday.
ap-16306809975693.jpg

University of Virginia administrator Nicole Eramo leaves federal court after closing arguments in her defamation lawsuit against Rolling Stone magazine in Charlottesville, Va., Tuesday, Nov. 1, 2016. Eramo is seeking $7.5 million from the magazine over its portrayal of her in the 2014 story by Sabrina Rubin Erdely.

AP Photo/Steve Helber

“I just wanted to disappear,” said Nicole Eramo, who sued the magazine for $7.5 million over the portrayal of her in its 2014 story “A Rape on Campus.” ‘’I didn’t know how it was going to be OK.”

Eramo sought to convince jurors that her life and reputation were badly damaged by the article, which she claims painted her as a villain who sought to discourage the woman identified only as Jackie from reporting her alleged assault to police. A police investigation found no evidence to back up Jackie’s rape claims.

The 10-member jury concluded Friday that writer Sabrina Rubin Erdely was responsible for libel, with actual malice, and that Rolling Stone and its publisher were also responsible for defaming Eramo.

Jurors were expected Monday to decide how much money to award Eramo.

Eramo described having suicidal thoughts while curled up in a ball under her desk at 4 a.m. days after the story was published. She said she had trouble sleeping, was crying all the time and struggled with how to explain what was happening to her then 7-year-old son.

“There were very dark moments,” said Eramo, who cried throughout much of her testimony. She added that people would avoid her on campus, making her feel like “a dead man walking.”

Eramo claims the article prompted the university to move her out of her job as an associate dean into a different administrative role that she doesn’t like as much because she rarely works with students.

She explained Monday that she was also preparing to undergo a double mastectomy for breast cancer when the article was published. Her lawyers also sought to show that the stress she experienced at the time likely contributed to her getting an infection after her surgery.

David Paxton, an attorney for Rolling Stone, told jurors that the magazine was “heartbroken” by Friday’s decision, but respected the verdict. Paxton said that jurors who may be angry at the magazine do not need to award a large sum of money to Eramo in order to send a message because they have already done that with their verdict.

“We are certainly not claiming there was no harm,” Paxton said. But he said the magazine believes Eramo did not suffer “extreme harm” as a result of the publication.
ap-16306657883911.jpg

Rolling Stone contributing editor Sabrina Rubin Erdely, front, and Rolling Stone magazine Deputy Managing Editor Sean Woods, right, walk with their legal team to federal court in Charlottesville, Va., Tuesday, Nov. 1, 2016. University of Virginia administrator Nicole Eramo is seeking $7.5 million from the magazine over its portrayal of her in a 2014 story written by Rubin Erdely. Closing arguments in the case are continuing.

AP Photo/Steve Helber

Paxton noted that Eramo not only kept a job at the university after the article was published, but she received a pay raise. When questioning Eramo’s doctor, the magazine’s attorneys sought to show that it was just as likely that Eramo’s infection was caused by radiation she had undergone years earlier.

Because the judge determined that Eramo was a public figure, she had to prove Rolling Stone made statements with “actual malice,” meaning it knew that what it was writing about her was false or entertained serious doubts about whether it might be true.

Jurors found that the magazine and its publisher, Wenner Media, acted with actual malice because they republished the article with an editor’s note on Dec. 5 after they knew about the problems with Jackie’s story. The jury also found that Erdely acted with actual malice on six claims: two statements in the article and four statements to media outlets after the story was published.
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http://nymag.com/thecut/2016/11/rolling-stone-rape-story-pay-3-million-damages.html

Rolling Stone Will Pay $3 Million In Damages for Its Retracted Story About Rape
By Theresa Avila
lawsuits
November 8, 2016 12:26 a.m.
University of Virginia’s Phi Kappa Psi fraternity house, which was named in the discredited Rolling Stone article. Photo: Jay Paul/Getty Images

Rolling Stone’s discredited and retracted story about a campus rape at the University of Virginia is costing the magazine a pretty penny. After deliberating for less than two hours, a jury on Monday ordered the magazine and the article’s reporter to pay up $3 million in damages to a university administrator.

The jury previously found that the parties involved in the story’s production were all liable for defamation for recklessly publishing an article without properly reporting it out. The jury decided Rolling Stone and its parent company, Wenner Media, were liable for $1 million while the article’s author, Sabrina Rubin Erdely, was liable for another $2 million. Under Erdel’s agreement with the magazine, though, the companies are obligated to cover “all liability arising out of the article,” a lawyer for Rolling Stone told the New York Times. Nicole P. Eramo, the UVA administrator who filed the defamation suit, initially asked for $7.5 million in damages.

In the now widely-discredited story about a gang rape on the UVA campus, Eramo’s lawyers argued she was portrayed as an overly unsympathetic character who was made out to be the “chief villain,” according to the Times. In one portion of the article, Eramo was quoted as going so far as to say, “Nobody wants to send their daughter to the rape school,” as a reason for the school not doing a better job at reporting sexual assault data. To be found guilty of defamation, a publisher must have acted with “actual malice,” and either known that the details it was publishing were false or have acted with a reckless disregard for the truth. In its decision, the jury didn’t make a distinction as to how much of the damages resulted from the article itself and how much they arose from comments Erdely and Rolling Stone made after the story’s publication.

Rolling Stone hasn’t yet announced whether it will appeal the decision. In the meantime, though, they also have to gear up for another lawsuit that’s awaiting trial: The fraternity at the center of the retracted story also filed a $25 million lawsuit last year.
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https://www.washingtonpost.com/local/education/jury-to-deliberate-damages-to-u-va-dean-in-rolling-stone-defamation-lawsuit/2016/11/07/e2aa2eb0-a506-11e6-ba59-a7d93165c6d4_story.html

Jury awards $3 million in damages to U-Va. dean for Rolling Stone defamation

By T. Rees Shapiro November 7 at 8:40 PM

CHARLOTTESVILLE — A federal jury has awarded $3 million in damages to a former University of Virginia associate dean after finding that a Rolling Stone magazine article sullied her reputation by alleging that she was indifferent to allegations of a gang rape on campus.

The 10 jurors heard arguments for damages in the case Monday, determining that Nicole Eramo’s suffering should cost a reporter and Rolling Stone multiple millions as a result of the article, which was retracted after its serious flaws were exposed. Eramo testified during the trial that after the article published, she faced threats, lost her ability to pursue her life’s work as a sexual assault prevention advocate, and took a major hit to her professional credibility.

On Friday, the same jury found that the magazine and one of its journalists, Sabrina Rubin Erdely, was liable for defaming Eramo in a 9,000-word account of sexual assault published in November 2014. The magazine in December amended the article online to say that it had lost faith in the source of its most shocking allegations, and it later fully retracted the article after a Charlottesville police investigation and a report by the Columbia University School of Journalism found that aspects of the account were false.

The jury awarded Eramo $2 million from Erdely and $1 million from Rolling Stone, less than half of the original $7.5 million that Eramo sought when she filed her lawsuit in May 2015. But in judging the seriousness of Eramo’s false portrayal in the magazine, jurors still found considerable fault in the reporting and publishing of the story, deciding after more than two weeks of testimony and argument that Rolling Stone acted with “actual malice.”
Rolling Stone contributing editor Sabrina Rubin Erdely walks with her legal team to federal court in Charlottesville, Va., Tuesday, Nov. 1, 2016. (Steve Helber/AP)

“This was nothing short of a complete repudiation of Rolling Stone and Sabrina Rubin Erdely’s flawed journalism,” Eramo’s attorney, Libby Locke, said in a statement.

Titled “A Rape on Campus,” the article was published to acclaim and went viral on the Internet, attracting millions of readers to the Rolling Stone website and another million more to the print magazine before the editors retracted the story in April 2015. Its in-depth look at sexual assault at U-Va. made it appear that the campus administration was callous to the issue, using the fraternity gang-rape account to punctuate its narrative. The article alleged that Eramo discouraged the main character, Jackie, from reporting the alleged gang rape; trial testimony revealed that Eramo had several times encouraged Jackie to go to police to seek justice.

[Key elements of Rolling Stone’s U-Va. gang rape article in doubt]

In emotional testimony on Monday, Eramo said that her life and her life’s work unraveled after the article published.

“I’ve always known I’m not the person in the article — that’s why we’re here today,” Eramo said. “But it’s hard to get back to where I was.”

Eramo said that U-Va. reassigned her from her duties counseling students on matters involving sexual violence and that she felt adrift on the campus she had called home for 20 years. Eramo said that she received hundreds of vitriolic email messages and that in her darkest moment she considered suicide.
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“I just wanted to disappear,” Eramo said.

Eramo read aloud one message that appeared in her inbox days after the Rolling Stone article circulated: “God will have his day with you and hold you accountable,” the sender told Eramo. “You are a despicable human being.”

In the wake of the article, Eramo said, she lost her title as associate dean as well as a sense of herself. When before Eramo used to walk around campus hugging students, afterward she felt like “a dead man walking.”

“I mourn the loss of Dean Eramo on a daily basis,” she said. “I miss her. . . . It wasn’t just a job.”

Eramo also testified that while she was dealing with the fallout of the Rolling Stone article she received a cancer diagnosis. She recalled that earlier in the fall of 2014 physicians detected the early stages of a tumor in her breast and later found that the cancer had metastasized to her lymph system. A month after the article published she underwent a double mastectomy before chemotherapy and further hospitalization as she battled a serious infection.

After the damages decision, Eramo said she’s ready to get past the case: “I’m certainly happy to put this behind me and move on to the next chapter of my life.”

David Paxton, a lawyer for Rolling Stone, began his questioning of Eramo by apologizing to her on behalf of Erdely and the magazine.

“Words can’t solve all the problems, but it’s important we acknowledge the harm you suffered,” Paxton said.

Paxton said that Rolling Stone respects the jury’s decision that the story had defamed Eramo with actual malice, a punishing blow to the magazine’s credibility. He also cautioned jurors to act with restraint when assessing a monetary award for damages.

“Some people are angry that we need to hear a message, but your verdict on Friday was loud and clear,” Paxton said. “This has been a badge of shame for Rolling Stone and Ms. Erdely.”

Paxton also noted that Eramo’s professional reputation has risen since the article published, pointing out that she received salary increases and prestigious awards from the university.
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http://www.thedailybeast.com/articles/2016/11/08/after-3m-payout-rolling-stone-prepares-for-frat-s-25m-damages-claim.html

After $3M Payout, ‘Rolling Stone’ Prepares for Frat’s $25M Damages Claim
A jury awarded $3 million to a former UVA dean. Next, the magazine is facing a $25 million damages claim from the fraternity named in its retracted rape report.

Lizzie Crocker
11.08.16 3:24 PM ET

A federal jury’s recent verdict that Rolling Stone defamed a former University of Virginia dean in its now-debunked article about a brutal gang rape on campus suggests that the magazine could lose a separate defamation suit stemming from the same article.

UVA’s Phi Kappa Psi fraternity, where Rolling Stone reported in its 2014 “A Rape on Campus” story that the assault took place, is seeking $25 million in damages in a libel suit set to go to trial in October 2017.

Yesterday, the jury awarded $3 million in damages to Nicole Eramo, concluding that her emotional distress resulting from the defamatory article should cost both the story’s author, Sabrina Erdely, and Rolling Stone several million dollars.

During testimony heard Monday, Eramo said her life and her work as a sexual assault prevention advocate suffered tremendously after the article’s publication.

“I’ve always known I’m not the person in the article—that’s why we’re here today,” Eramo told the jury. “But it’s hard to get back to where I was.”

She also said she endured hundreds of threatening emails, lost her title as associate dean (and her sense of self with it, despite retaining an administrative position at the university), and suggested that her breast cancer diagnosis worsened after the article was published, according to The Washington Post. Earlier in the fall of 2014, prior to the story’s release, doctors had detected early stages of a tumor in her breast. They later discovered that the cancer had metastasized, and Eramo underwent a double mastectomy a month after the article’s publication, followed by chemotherapy as well as further hospitalization in connection with her chemo treatment.

At issue in Phi Kappa Psi’s defamation suit against Rolling Stone is whether the judge will conclude that the fraternity is a “public figure,” or even a “limited-purpose public figure” like Eramo was. Being a public figure necessitates a harder-to-prove, “actual malice” standard in defamation suits that doesn’t apply to private plaintiffs in similar suits.

“The fraternity is surely hoping the judge in its case will declare it to be a private figure not subject to the actual malice standard, but in light of the verdict obtained by Ms. Eramo, it now has some assurance that its own case may succeed even if it is declared a public figure,” Lee Berlik, a Virginia-based attorney who specializes in defamation law, told The Daily Beast.

Yet the fact that Phi Kappa Psi is an institution rather than a human being could limit damages if the fraternity won the defamation suit, according to Berlik.

“As an institution, it does not suffer emotional distress, mental anguish, or humiliation,” he said, all of which factored prominently in the jury’s decision to award Dean Eramo $3 million in damages—half of the $7.5 million that she sought in her lawsuit.

While the fraternity’s $25 million suit seems like a bigger deal, what a plaintiff is seeking has no bearing on what the jury ultimately awards in the end, Berlik noted.

One can see how it will be more difficult for a fraternity, which is analogous to a corporation, to prove that it was humiliated and suffered $25 million worth of damages.

“The jury will be looking at economic losses that the fraternity has incurred, such as a precipitous drop in membership,” Berlin said.

A lawyer for the fraternity did not respond to requests for comment from The Daily Beast.
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http://www.cavalierdaily.com/article/2016/11/phi-kappa-psi-lawsuit-unlikely-to-change-in-light-of-eramo-verdict

Phi Kappa Psi lawsuit unlikely to change in light of Eramo verdict
Different statements and evidence will make for a different trial
by Anna Higgins | Nov 08 2016 | 11/08/16 10:30pm

Phi Kappa Psi is suing Rolling Stone magazine, writer Sabrina Rubin Erdely, Wenner Media, Inc. and Straight Arrow Publishers for $25 million.

The University’s Virginia Alpha Chapter of Phi Kappa Psi’s lawsuit will see differences from former Associate Dean of Students Nicole Eramo’s successful lawsuit against Rolling Stone Magazine.

Phi Kappa Psi filed a $25 million defamation lawsuit against the magazine, writer Sabrina Rubin Erdely, Wenner Media, Inc. and Straight Arrow Publishers in November 2015.

“Rolling Stone and Erdely had an agenda, and they were recklessly oblivious to the harm they would cause innocent victims in their ruthless pursuit of that agenda,” the lawsuit reads.

On Nov. 4, a jury found Rolling Stone, Erdely and Wenner Media liable of actual malice in their November 2014 publication of “A Rape on Campus,” which detailed a violent alleged gang rape in 2012 at the Phi Psi house and a lack of response to sexual assault allegations by the University administration. On Monday, the same jury awarded Eramo $3 million in damages.

Given that Phi Kappa Psi’s case against Rolling Stone deals with different statements from the article than Eramo’s, much of the trial proceedings will likely differ from Eramo’s trial. Rolling Stone’s decision to continue using two of the same attorneys — David Paxton and Elizabeth McNamara — is likely a money-saving choice, Law Prof. Ted White said.

“The Phi Kappa Psi trial is going to be different, there's a different statement, there will be different evidence about whether Rolling Stone investigated that or not,” White said. “So, the fact that they have the same lawyers, that’s just saving Rolling Stone some money.”

A major difference between the fraternity and Eramo’s lawsuits is where the cases were filed: while Eramo elected to bring her case to the U.S. District Court, Phi Psi chose to stay in the Charlottesville Circuit Court.

The decision to keep the lawsuit in-state was likely a strategic one, White said. A local circuit court may provide a local judge and jury more likely to favor the plaintiff over an out-of-state defendant.

“They're probably thinking that for some reason they might get more favorable treatment if they sued in a local court,” White said. “Obviously that’s what they're doing since they would have had the opportunity to sue in federal district court, they have elected to sue in state court for strategic reasons.”

The definition of the plaintiff’s level of publicity, a point of contention in libel lawsuits, will also likely not be affected by Eramo’s classification as a limited-purpose public figure in her lawsuit.

“One of the issues that's going to be present in this case is there is no, and I mean literally, there is no legal effect of the first decision,” White said. “Things like whether the fraternity is a public figure, the fact that Eramo was found to be a limited purpose public figure by the district court does not mean that Phi Kappa Psi would necessarily be found to be a limited purpose public figure by the trial judge in Charlottesville.”

The fraternity’s lawsuit is not scheduled for trial until October 2017.

Phi Kappa Psi’s attorney declined to comment for this article, and Rolling Stone’s attorneys did not return a request for comment by press time.
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http://www.dailyprogress.com/opinion/opinion-commentary-jackie-verdict-does-not-set-new-first-amendment/article_0847dd84-a84f-11e6-888c-8fe7be54cf83.html

Opinion/Commentary: ‘Jackie’ verdict does not set new First Amendment standard

Joshua Wheeler - 11/13/16

On Oct. 31, a jury in Charlottesville, Virginia reached a verdict in the Rolling Stone defamation case. The case stems from the infamous article “A Rape on Campus,” which was the cover story in the November 2014 issue of Rolling Stone magazine.

The article, since retracted, was based in large part on the story of “Jackie,” whose claim of a gang rape at a University of Virginia fraternity house has since been discredited. The story included several passages detailing how Jackie claimed to have been treated by Dean Nicole Eramo who, at that time, was in charge of dealing with students’ claims of sexual assault.

Dean Eramo sued over the article’s portrayal of her as being uncaring and actively discouraging Jackie from going forward with her claims.

The jury sided with Eramo on the merits of the case, and in a second phase of the case awarded her $3 million in damages. (Eramo had sought $7.5 million.)

The verdict will surely generate a spate of articles and blogs decrying the death of the First Amendment. While the potential chilling effect on journalists is clear, there are aspects of this case that members of the media should find encouraging.

Judge Glen Conrad’s instructions to the jury properly reflected the incredibly high standard set forth in the 1964 U.S. Supreme Court case New York Times v. Sullivan that the evidence must meet in order to find Rolling Stone acted with “actual malice””

“[The] plaintiff … has the burden of demonstrating by clear and convincing evidence that a defamatory statement was made by one or more defendants with actual malice, that is, with knowledge of the statement’s falsity or with reckless disregard of whether or not it is false.

“Reckless disregard means that the defendant had a high degree of awareness of the probable falsity or must have in fact entertained serious doubts as to the truth of the publication. …

“Actual malice is not negligence. Reckless conduct is not measured by whether a reasonably prudent person would have published, or would have investigated further before publishing.

“A failure to investigate does not establish actual malice. It is not enough for plaintiff to prove that defendant did not conduct a thorough investigation of the facts or that a defendant was careless in the way the defendant wrote or edited the article. Likewise, it is not enough for plaintiff to prove that the defendant departed from accepted standards of journalism in the reporting, editing, or fact-checking of the article. In order to recover, plaintiff must prove that the defendant knew that the complained of statements were false or in fact entertained serious doubts as to whether they were false or not.”

Given these instructions, many might question whether the jury properly applied them to the evidence presented in court. Undoubtedly, the answer to that question will be debated for some time, perhaps even in appellate court.

In the meantime, journalists should not fear that they are under some new or heightened legal threat. This decision does not represent a change in the law or the high standard that must be met to prove “actual malice.”

In the event that the Rolling Stone verdict is appealed and affirmed, it will represent that rare case when the evidence proved actual malice — not an invitation to bring weak defamation claims. Judge Conrad’s instructions saw to that.

Joshua Wheeler is executive director of the Thomas Jefferson Center for the Protection of Free Expression, located in Albemarle County.
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Payback
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I apologize if someone has already brought this up. There is a new mystery by Joseph Finder called GUILTY MINDS. A Supreme Court justice is being accused of something that he may not have done and a private investigator is trying to get the presumed prostitute to talk to him. He is pretending to be the in-house man for the scandal magazine checking out her story before it is published. This is on 49: "They're really going out on a limb on this story, so they want to make sure it's solid." I was lying, sure, but I justified it to myself on the grounds that she was, too. "They want to make sure they don't get stuck with a bad story the way Rolling Stone magazine was, with that UVA story."



How's that? In the past tense, part of history now, although written before the verdict. And thanks for all greetings last week.
Edited by Payback, Nov 14 2016, 05:25 PM.
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