News that Rolling Stone has agreed to pay $1.65 million to the University of Virginia of Phi Kappa Psi to settle a defamation lawsuit over the 2014 story “A Rape On Campus” brings legal closure to a troubling episode that reminds all journalists of the importance of rigorous fact-checking and editing.
The since-debunked article told the story of a student given the pseudonym “Jackie,” who alleged that several Phi Kappa Psi members had raped her, at the instigation of a member she trusted. The story was later retracted by Rolling Stone after many of its claims were discredited, but not before the story created a legal headache for the magazine.
Earlier, both the magazine and author Sabrina Rubin Erdely were found liable for defaming a former UVA administrator whose conduct was a focus of the article, and paid a substantial but undisclosed settlement to avoid appeals over a $3 million jury verdict.
An independent report by the Columbia Journalism School (the report’s subtitle — “A failure that was avoidable” — is a giveaway) found Rolling Stone had missed many opportunities to get the story right and avoid liability. Here are five lessons, derived from the Columbia findings, that student journalists can learn from Rolling Stone’s mistakes:
(1) Give opportunity for comment. In some cases, Rolling Stone totally failed to give accused individuals and entities opportunity to comment on Jackie’s allegations. In other cases, it didn’t give individuals enough detail about Jackie’s allegations to properly comment. For example, when the magazine contacted the fraternity for comment, the reporter asked only generally about “allegations of gang rape.” The reporter did not explain that she had been in contact with Jackie, or what Jackie had specifically said about the incident.
This opened the magazine up to legal trouble. Had the reporter asked more detailed questions of accused individuals and entities, she may have seen reason to investigate further and may have discovered that Jackie’s story was not completely true. The single best defense against a claim for defamation is to give any identifiable person accused of wrongdoing a complete opportunity to respond to the accusation, and a “complete” opportunity requires understanding the severity of the accusation.
Student journalists should always give accused subjects opportunity to comment, including opportunity to comment on specific allegations. This gives involved parties opportunity to set you straight if one source has given you incomplete or incorrect information, saving you from potential liability down the line.
(2) Be especially careful when stating or implying that a professional person is incompetent at her job or failed to do her job. When these statements prove to be false, it’s what lawyers refer to as “libel per se,” something so damaging to a person’s reputation that it’s assumed to be harmful without even needing to prove the harm. This is exactly the type of injury that libel laws exist to prevent.
In one of the libel suits that came out of “A Rape on Campus,” Rolling Stone was accused of portraying then-UVA associate dean Nicole Eramo as the “chief villain.” The article had alleged that Eramo had encouraged Jackie not to report her rape, thereby making it appear that Eramo failed to do her job. Avoid similar mistakes by fact checking, giving opportunity to comment, and avoiding inflammatory language. When appropriate, focus on institutional versus individual professional failure. It’s much harder to libel an entire large institution like a university than an individual, and had the article more broadly asserted that “the university” failed to take the rape case seriously, it would have been more challenging for any individual plaintiff to establish a personal injury from the article.
(3) Be judicious in using pseudonyms. Rolling Stone used many pseudonyms in its “A Rape on Campus” story, sometimes using them as a substitute for reaching out to individuals for comment. For example, the magazine assigned made-up names to three of Jackie’s friends after the reporter had trouble arranging contact with them through Jackie (a red flag that went ignored). The magazine also used a pseudonym for the main perpetrator of the alleged assault instead of seeking to identify the individual and reach out for comment — or, at least, to verify details confirming that he was a real person. Had the magazine sought out these individuals, it may have uncovered inaccuracies in Jackie’s story and avoided liability. When considering using a pseudonym, think carefully about whether the situation warrants it, or if it’s being used as a bandage for lazy journalism.
(4) Don’t assume that attributing accusations gives you any protection. Rolling Stone almost exclusively relied on Jackie for its report. The reporter did not seek out additional sources because of pushback from Jackie and because she wanted to trust Jackie. This meant that Jackie’s untruths became Rolling Stone’s, setting it up for liability. It is a common rookie mistake to assume that it’s legally “safe” to accuse people of wrongdoing if the accusation is attributed. It’s not. Publishing an unfounded accusation without due care can be libel whether the accusation is made by the publication or by a source quoted in the publication.
Had Rolling Stone checked with additional sources, such as Jackie’s friends or the fraternity calendar (which showed, contrary to Jackie’s report, that no party had been held on the night in question), the magazine may have been able to responsibly report the truth. Especially when dealing with controversial subjects or issues that might damage individuals’ reputations, take care to find at least two sources to corroborate important details in the story — even if you’re doing the fact-checking as an internal “gut check” with no plans to publish all of the details. (In the case of reporter Erdely, that moment of remorse struck when — much too late — she asked Jackie to confidentially share the name of the accused ringleader of the assault. As soon as Erdely had the name, it became evident that the story did not check out.)
(5) Discuss approaches to sensitive stories with other members of your staff. You’d assume a large national magazine like Rolling Stone would catch mistakes through multiple layers of review. That’s what they assumed, too — and that assumption led to a disastrous result. Instead of independently verifying claims, the fact-checker trusted that the editor and reporter had already done this. The editors trusted the reporter. The reporter trusted the editors. Like the fly ball that drops between the outfielders, “A Rape on Campus” became a story for which everyone was liable but no one was responsible.
A rigorous editing process isn’t a guaranteed defense against error — no process can make any news publication 100 percent error-free, and even seemingly trustworthy people sometimes furnish false information — but it is a defense against losing a libel suit. The law doesn’t expect perfection, but it does demand that publishers take reasonable precautions against falsehoods. Every precaution that could’ve been followed and wasn’t puts another weight on the scale of liability. Had the Rolling Stone newsroom culture fostered healthy debate over best practices in pursuing this story, the editors may have pushed the reporter to check with more sources, and the fact-checker may have independently researched aspects of Jackie’s story and uncovered inconsistencies. Plus, having these conversations can make you a better journalist by giving you ideas and perspectives you may not have considered.