Our last article concerned the First Amendment, specifically the freedom of speech, and the standard of proof to establish whether someone runs afoul of the First Amendment. Today we’ll focus on the issue of defamation, and discuss when untruthful publications fall outside the First Amendment’s scope of protection. Consider the highly publicized case of defamation, based on a fictitious sexual assault, alleged to have occurred in 2012 at a University of Virginia fraternity. A brief background follows.
“Jackie,” an 18-year-old freshman at UVA, claimed she was invited to a fraternity party where she alleged to have been gang-raped for several hours by seven male college students. According to her initial account of the incident, Jackie’s friends convinced her not to go to the hospital, and she did not immediately report the supposed rape. In fact, according to her first version of the story, two weeks thereafter, Jackie ran into her perpetrator and thanked him for inviting her to the party. Near the end of her freshman year, Jackie did report the allegations to UVA’s administration, though she declined to pursue criminal charges.
By 2014, in her junior year, Jackie still had yet to file a criminal complaint. Around that time, a reporter for Rolling Stone magazine, Sabrina Erdely, made contact with Jackie. Ms. Erdely heard of Jackie’s story and subsequently published an article purporting to expose a ‘rape culture,’ and an indifferent administration at UVA. Soon thereafter, Rolling Stone found itself under scrutiny by journalists who identified glaring discrepancies and inconsistencies in Jackie’s story. Rolling Stone was later forced to concede they never interviewed the friends who supposedly came to Jackie’s aid, nor did they interview the alleged male offenders. No one from Rolling Stone even attempted to do so. Remarkably, however, Rolling Stone, stood by Ms. Erdely’s article, insisting Jackie’s story was legitimate and was adequately fact-checked. According to The Washington Post, however, Jackie’s story was simply not credible, and contained conspicuous irregularities that were demonstrably false.
After the story was shown to be a fabrication, and Rolling Stone exposed for journalistic sensationalism, the magazine eventually issued an apology. The Columbia University Graduate School of Journalism conducted an independent review of the magazine’s reporting. It was determined that Jackie lied about the rape story for her own benefit. Columbia University called out the article’s many conflicts and Rolling Stone’s journalistic misconduct, naming the story the winner of “this year’s media-fail sweepstakes.” Finally, five months after publication, Rolling Stone retracted the article in its entirety.
Several people then sued for defamation. On May 12, 2015, Nicole Eramo, UVA’s associate dean, who at the time handled sexual assault issues at UVA, filed a $7.5 million lawsuit against both Rolling Stone and Ms. Erdely. Ms. Eramo claimed damage to her reputation and emotional distress, and claimed that both Rolling Stone and Ms. Erdely acted willfully and wantonly by publishing the article. On November 4, 2016, a jury found Rolling Stone and Ms. Erdely liable for defaming Ms. Eramo, and awarded damages of $3 million.
The First Amendment’s free speech protections have limits. Ms. Erdely published a damaging story about a sensitive topic, without fact checking or interviewing individuals with supposed direct involvement in the story. All of which goes against everything the First Amendment stands for. The First Amendment protects individuals’ right to free speech, but it does not protect assertions of objectively false facts, nor does it protect statements made with knowledge that they are false or made with reckless disregard for whether they are false or not. It is not o.k. to merely hear a scandalous story, then publish it without verification. To do so can have devastating consequences for innocent people.
Ms. Erdely relied solely on the unverified story of a 20-year-old student, and published her story for millions of people to read. Her conduct grossly violated the most basic of journalistic standards, and violated the rights of others. The First Amendment cannot and will not protect people who blatantly disregard the truth. Absent these limitations, anyone willing to engage in falsehoods might otherwise do unanswerable harm to the lives of others.