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Saturday, October 22, 2016

Does National Review think Rolling Stone case is frivolous?

In March, the National Review published "Trump vs. the First Amendment," an intemperate piece that blasted the candidate for wanting to beef up libel laws."

From Kevin D. Williamson:
I spent most of my career as a newspaper editor, and blustering imbeciles like Donald Trump threatened to sue me about once a week or so. I never lost a case. I never even saw one get all the way to the courtroom, for that matter. That’s because, as with Rosemary Lehmberg’s persecution of Republican politicians in Texas, the point of libel suits — including the one National Review currently is fighting with global-warming clown Michael Mann — isn’t to win the case. The point is to harass you, to consume your time, energy, and money in dealing with the case. You might win the suit, you might never see the inside of a courtroom, but it still costs you $800 every time you pick up the phone with your lawyer. That’s why people sue, nine times out of ten: pure harassment.
Now Williamson indicated nine out of ten times the case is frivolous.

What about the one that is not frivolous? Apparently, such cases never go to trial (with the exception of Michael Mann). Those $800-a-phone call lawyers make sure of that.

In his piece, Williamson wrote, "For a claim to be libelous, it must be 1) false; 2) defamatory; 3) published with actual malice or reckless disregard for the truth."

That last test is relatively new. It came from the Sullivan vs. New York Times decision in 1964. The Supreme Court ruled, "The First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)."

Which leads to Nicole Eramo, University of Virginia’s Associate Dean of Students. Despite being a public official, she is suing Rolling Stone for $7.5 million over the magazine's story, "A Rape on Campus," which included a passage that said she tried to discourage a victim of a gang rape victim from reporting the crime.

That was false. There was no gang rape. Rolling Stone's $800-a-call lawyers could not talk Eramo into settling. The case is on trial.

From Heat Street:
Ms. Eramo wept in court on Tuesday as she described the backlash against her on campus after the story was published as immediate and overwhelming, sparking protests and even death threats.
She received hundreds of emails and letters calling her everything from a “wretched rape apologist” to a “disgusting, worthless piece of trash.”
“It just seemed to be going completely viral, and I didn’t know what to do,” she said. “I felt alone and scared.”
Rolling Stone lawyer Scott Sexton acknowledged during his opening statement that the magazine made reporting mistakes but stressed that Ms. Eramo must prove that the magazine acted with “actual malice,” meaning it knew what it was writing about the dean was false or at least should have known it wasn’t true.

Pretty hard to prove in court, and of course, Rolling Stone is betting on appeal. Sullivan vs. New York Times was unanimous. And the magazine can show an absence of malice.

More from Heat Street:
Elizabeth McNamara, a lawyer for Rolling Stone, noted that the magazine issued an apology in December 2014 and another one the following April when it officially retracted the article. She said that apology was specifically extended to school administrators.
So you can wreck a person's life without having to pay a penalty greater than saying you are sorry?

In his article, Williamson cited only examples of people taking exception to being called an SOB in a column. That everyone would protect. He knows that.

But in a news story?

In an exposé?


The National Review may be cool with that, but I don't think the First Amendment should be used to protect media outlets from having to pay for the damage they do. Eramo deserves something more than Rolling Stone saying sorry, better put some ice on that.


Please read "Trump the Press," a fun romp through the Republican nomination that uses the deadliest weapon to skewer the media experts: their own words. "Trump the Press" is available as a paperback, and on Kindle.


  1. If I were litigating the case I would drive home the point that reckless disregard in ascertaining the truth of injurious allegations constitutes malice with forethought. It is calculated to do damage, and when it does inflict harm it has not been a simple happenstance, it was deliberate.

  2. Sullivan is the law, but that doesn't mean it is a good law. I wish the media were as vigorous in defense of the rest of the Bill of Rights.

  3. What the nasty Mr Williamson should worry about, and maybe he does, is the make up of the Supreme Court. The four libs who despise the Constitution because it was written by White Men of privilege have endorsed legislation from the bench with little concern for precedent. If Trump were to load the court with one or two people who didn't agree with Sullivan, Kevin and his now lible proof thugs could suffer grievous harm in the real world. The NY Post once misidentified the Boston bombers on their front page. Their defense was to say that the purpose of the press was to " get the story out and leave the truth to the historians". They escaped because they had made a bad mistake without " malice". But some day with the right case and the right judges on High, it won't be just the historians who will be held accountable for the truth, malice or no. The political power as a mono block the press has assumed in he past decade is becoming dangerous to everyone, even them, and will have to be curbed. Trump could start on that path.

  4. With a story as dodgy as that one, running it without considerable checking (too juicy to check?), malice seems probable. One of those "victim must be believed" kangaroo court things.

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  6. The contention by Rolling Stone that Eramo is a "public official" is absurd. Yes, she is an administrative employee of a state university, but it offends my sense of fairness for the defendants to claim she is in the same category as the governor of the state. The actual malice standard should not apply to an employee who is so far down the totem pole her name would never be known to the public except for the fact that Rolling Stone's "journalistic hack job" brought her to the public's attention.

    1. Exactly - that just doesn't pass the smell test. Nice try, counselor.

    2. Eugene Volokh over at his "Conspiracy" blog believes that Eramo, as associate dean of students at a public university — and head of the university’s Sexual Misconduct Board — is likely a “public official,” because she exercises significant influence over a public institution. His cites include: Grossman v. Smart (C.D. Ill.1992) (vice chancellor for research); Hicks v. Stone (La. Ct. App. 1982) (dean of the College of Education); Gallman v. Carnes (Ark. 1973) (assistant dean of law school); Van Dyke v. KUTV (Utah 1983) (university director of financial aid).

  7. Here's a good movie that you can watch now about this, called, appropriately Absence of Malice. Paul Newman. Sally Field.