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For Rolling Stone, ‘Worst Nightmare’ Continues

RICHMOND, Va. ― Days after Rolling Stone magazine published a shocking 9,000-word story about a brutal gang rape at the University of Virginia in November 2014, the magazine’s editors received an email just before 2 a.m. with “Our worst nightmare” in the subject line. They needed to run a retraction, the reporter said.

Instead, Rolling Stone kept the article on its website for four months before finally pulling it down that April and officially retracting the story.

That decision was enough to convince a federal jury in Charlottesville on Friday that the magazine defamed a university administrator, who claimed she was cast as the “chief villain” in the now-discredited story “A Rape on Campus.”

The 10-person jury found also found that journalist Sabrina Rubin Erdely and the magazine’s publisher were responsible for libel, with actual malice.

Nicole Eramo claimed the article falsely said she discouraged the woman identified only as “Jackie” from reporting the incident to police. A police investigation found no evidence to back up Jackie’s claims about being raped.

Eramo was seeking $7.5 million from her lawsuit. Jurors are expected to return to court next week to decide how much to award her.

The decision comes at a time when the public’s distrust of the press runs deep and is the latest in a year that brought large judgments against other media outlets.

In March, former pro wrestler Hulk Hogan won a $140 million invasion-of-privacy verdict against Gawker for posting a sex tape of him. Gawker settled with Hogan for $31 million this month.

Last month, The News & Observer of Raleigh was ordered to pay about $6 million in a State Bureau of Investigation agent’s libel lawsuit.

Samantha Barbas, a law professor at the University of Buffalo, said it appears that media outlets are being threatened with and hit with more lawsuits than ever, and juries seem more willing to side with people who claim they’ve been injured by the press.

“The climate seems to be one where people, especially public figures, don’t fear taking on the press as they might have in the past,” said Barbas, who studies the intersection of the First Amendment, culture, media and privacy.

The magazine also faces a $25 million defamation lawsuit from the University of Virginia’s Phi Kappa Psi fraternity, where Jackie claimed her sexual assault took place.

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 on Dec. 5 after they knew about the problems with Jackie’s story. The magazine put an editor’s note on top of the story that day acknowledging its reporting mistakes, but did not use the word retraction and kept the story online.

Rolling Stone’s attorneys argued that the editor’s note was effectively a retraction, but jurors rejected that idea. The magazine did not say it was officially retracting the article until the following April.

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. In one instance, Erdely wrote in the story that Eramo had a “nonreaction” when she heard from Jackie that two other women were also gang-raped at the same Virginia fraternity.

Libby Locke, an attorney for Eramo, said she and her client are pleased with the decision.

“The jury’s verdict is a complete vindication of Nicole Eramo, and a complete repudiation of Rolling Stone’s and Ms. Erdely’s false and defamatory article,” Locke said in an email.

In a statement Friday, Rolling Stone apologized to Eramo and others impacted by the article. A spokeswoman for the magazine said she couldn’t say whether it plans to appeal the decision.

“It is our deep hope that our failings do not deflect from the pervasive issues discussed in the piece, and that reporting on sexual assault cases ultimately results in campus policies that better protect our students,” the magazine said.

David S. Ardia, an assistant professor of law and co-director of the Center for Media Law and Policy at the UNC School of Law, said the magazine’s statement Friday suggests it is likely to ultimately settle rather than appeal the verdict.

“Most defendants issue a statement saying they plan to fight at every level of appeal possible,” but that’s not what Rolling Stone said on Friday, he said.

Defendants contest the jury’s ruling because they often win on appeal even when they lose in front of the jury, Ardia said. But in this case, there is a great deal of evidence that seems to point to significant doubt about the story ― not in the reporter’s mind but in editors’’ minds ― at the time the story was published, he said.

Associated Press reporter Jessica Gresko in Washington contributed to this report.

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