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Rolling Stone: The Bill for Journalistic Malpractice Comes Due

Last year, Sabrina Erdely wrote an article for Rolling Stone story about a gang rape in a UVA frat house.  It turns out that she made up the story, and that seems to have caused serious harm to the Phi Kappa Psi fraternity.   Now the bill is coming due, as Phi Psi sued Rolling Stone for defamation.  (source)

The story initially exploded, largely because of the salacious details and a narrative that many wanted to believe.  I was one of the many who bought the story at first, as I confessed in an article last December.

As I wrote then:  Why wouldn’t I believe it? The antagonists were a bunch of over-privileged white fraternity jerks from UVA, it seemed. The victim was yet another young woman who had had justice withheld. The story confirmed what I wanted to believe: that the elite run roughshod over the rest of us. It proved so much, and I “knew” which side was right.

It then came to pass that we were wrong.  Ederly’s story was the worst kind of fabrication / sloppiness.  I don’t know if she made it up with the source, or just refused to fact check, but it was sloppy crap (at best).  When this kind of thing happens on an unedited blog, it is bad enough.  But, one would think that the mainstream press, especially a publication like Rolling Stone, would fact check its story.  Why they failed to do so is anyone’s guess, but they certainly failed to exercise a healthy enough dose of skepticism.  That may cost them dearly, as the fraternity is seeking $25 million in damages.

As a First Amendment advocate, my knee jerk reaction to a big defamation suit is to side with the publication.  We have a right to say what we want, right?  Freedom of Speech?  Freedom of the Press?

Not this time.  Freedom doesn’t mean “freedom from responsibility.”

The First Amendment lets you say what you want, but it doesn’t mean that you can’t be stuck with the bill if you get it wrong.  You break it?  You buy it.

Defamation liability lies when there is a false statement of fact that injures the plaintiff’s reputation.  In this case, Ederly and Rolling Stone certainly did that to the Phi Psi fraternity.

The suit reads “In the most scurrilous traditions of yellow tabloid journalism, Rolling Stone published a devastating story it knowingly failed to verify, in reckless disregard for truth or falsity, or the essential safety, dignity, and welfare of the organization or of those lives it was willing to crush with its defamatory article…The story was simply too tempting, too sensational, to let facts get in the way.” (source)

And therein lies the core of a strong defamation claim.  Rolling Stone will likely claim that the fraternity is a “public figure.”  I agree, it is.  As a public figure, it faces the toughest standard for a defamation plaintiff – “actual malice.”

That standard has an unfortunate name, because it confuses most laypeople into thinking that if the author actually had malicious intent, then that means it was published with “actual malice.”  Even worse, there are some really really shitty lawyers out there who think that is the case too.  I shouldn’t shit on them that hard, because dumb-asses like that help me make a living.

Repeat after me “actual malice has nothing to do with maliciousness.”  You can write about someone with complete malice in your heart – if you write the truth, or even close enough, the First Amendment will usually protect you.  We even allow for some unfortunate mistakes, because the First Amendment needs “breathing room,” as the Supreme Court has said.

In the defamation context, “actual malice” means that the defendant published the defamation either knowing it was false or with a reckless disregard for the truth.  (See New York Times v. Sullivan).  That is “actual malice.”

That standard seems to be met here.  Ederly either made her story up from whole cloth, or all the evidence of it just mysteriously disappeared.  Rolling Stone (at the least) careened toward the wall without even turning the wheel or hitting the brakes.  Even if we are forgiving to Ederly and Rolling Stone, it seems clear that there was a reckless disregard for the truth here.

The First Amendment is there to protect true journalism, and it is even designed to give a wide berth to journalism that simply screws up.  When a public figure is in play, the news is allowed to get it wrong.  But they aren’t allowed to commit gross negligence, and thereby destroy the reputation of an organization, or individuals, who haven’t done anything to deserve it.

As I wrote last year:  I don’t know what Erdely’s agenda was, but it wasn’t responsible journalism. Responsible journalism is hard. It isn’t public relations. A responsible journalist digs for the truth, she doesn’t just take her subject’s agenda and run with it. That isn’t journalism, that’s “gossip,” and like all gossip, it doesn’t do anything positive for anyone.

In this case, I think that Rolling Stone will need to get its checkbook out.  Will it have to pay $25 million?  That seems a little bit ambitious.  But, Rolling Stone should be held responsible for its actions, and I predict it will be.

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