UVA associate dean Nicole Eramo is suing Rolling Stone and writer Sabrina Rubin Erdely for statements in Rolling Stone’s now-retracted “A Rape on Campus” story. How will courts likely deal with this lawsuit? Here are a few early and tentative thoughts, though of course much depends on facts that are not yet known.

1. Federal vs. state court: Eramo sued in Virginia state court, but it seems likely that Rolling Stone and Erdely will want the case removed to federal court: The conventional wisdom is that libel defendants are procedurally better off in federal court, where it’s easier to get cases dismissed or narrowed before trial. (The substantive rules would be the same in federal court as in state court.) And if defendants want the case removed to federal court, they’ll be able to make that happen — the defendants aren’t Virginia citizens, and the lawsuit is over $75,000, which is the threshold for federal jurisdiction in such situations.

2. Is Eramo a “public official”? When a libel case involves (as this one does) a matter of public concern, a court must decide whether the plaintiff is (1) a public official or public figure, or (2) a private figure.

To win a libel case, public officials or public figures must show that the defendants acted with “actual malice,” a confusing term that means “knowledge that the statement was false, or knowledge that it was likely false coupled with a conscious disregard of that risk.” What’s more, the public officials or public figures must show actual malice by “clear and convincing evidence.” Private figures can get proven compensatory damages (including emotional distress damages stemming from harm to reputation) based on a showing of mere negligence on the defendant’s part, though they still need to show actual malice to get presumed damages or punitive damages.

Eramo, as associate dean of students at a public university — and head of the university’s Sexual Misconduct Board — is likely a “public official.” Not all government employees qualify as public officials; ordinary professors generally do not, lowly grunts that we are.

But relatively high-level university administrators, including ones at Eramo’s level, likely are public officials, because they exercise significant influence over a public institution. See 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). The one case I’ve seen to the contrary is Knowles v. Ohio State Univ. (Ohio Ct. Claims 2005), which held that a university provost is not a public official; but that was an unpublished, nonprecedential opinion that is unlikely to have much influence.

It therefore isn’t necessary to decide whether Eramo was famous or generally influential enough — the inquiry for “public figure” status — or whether she had deliberately injected herself into a public controversy, which would make her a “limited purpose public figure” as to statements related to that controversy. She is likely to be seen as a public official, and that has the same consequences as being labeled a public figure.

3. The factual allegations: Now that the simple stuff (yes, that was the simple stuff) is done, we turn to the alleged libels themselves. The analysis here ends up being quite complex. Keep in mind, for each statement, that Eramo must (A) show it’s false, (B) show it tends to injures her reputation, (C) show it’s a factual assertion, and not a statement of opinion, (D) show reasonable readers would see it as being about her (the so-called “of and concerning” requirement, and (E) show, by clear and convincing evidence, that defendants knew it was likely false (my shorthand for the knowledge-or-reckless-disregard standard). Let’s begin with the statements in the Rolling Stone story:

a. “Like most colleges, sexual-assault proceedings at UVA unfold in total secrecy. Asked why UVA doesn’t publish all its data, President Sullivan explains that it might not be in keeping with ‘best practices’ and thus may inadvertently discourage reporting. Jackie got a different explanation when she’d eventually asked Dean Eramo the same question. She says Eramo answered wryly, ‘Because nobody wants to send their daughter to the rape school.’” Eramo’s response:

Dean Eramo never told Jackie that UVA did not publish sexual assault statistics because nobody wants to send their daughter to the rape school and, on information and belief, Jackie did not tell Erdely that Dean Eramo said this.

The claim that Eramo said (“wryly”) that UVA keeps information secret “Because nobody wants to send their daughter to the rape school” would tend to injure Eramo’s reputation, because it shows a cavalier attitude towards the safety of students, and seems to approve of trying to protect the University at the expense of its students. The claim is about Eramo. And if plaintiffs can show that Eramo didn’t say it, and defendants knew she likely didn’t say it (a big “if,” of course), they have a great case. (For more on why Erdely and Rolling Stone could be liable for saying “[Jackie says] Eramo answered, ‘X,’” if it’s true that Jackie said Eramo said this but it’s not true that Eramo actually said it, see this post about the Republication Rule.)

b. “Lots of people have discouraged her from sharing her story, Jackie tells me with a pained look, including the trusted UVA dean to whom Jackie reported her gang-rape allegations more than a year ago.” Eramo’s response (from a bit later in the complaint, but I take it that the response applies to this statement as well as the later ones):

Dean Eramo … in no way discouraged Jackie from seeking to hold the perpetrators accountable through the University and/or criminal processes. In fact, Dean Eramo supported Jackie with respect to reporting her alleged assault to the police and arranged for Jackie to meet with police.

This might also be a viable claim for plaintiff, assuming they can show it was false, and the defendants knew it was likely false. But here we are getting away from pure factual assertions (what Eramo said) and starting to shift to opinions (whether to characterize it as “discourag[ing]”).

Say, for instance, that Jackie told Eramo that she was afraid of having to accuse her assailants face to face, and Eramo told her that, if she went to the police, she might have to testify in open court, with the accused watching her. Should that count as “discourag[ing] her from sharing her story”? That’s a judgment call, of the sort that helps show that “discourag[ing] her” is in large part an evaluative opinion rather than a factual assertion. Of course, maybe on balance Eramo did more to encourage her than to discourage her, but to decide that the jury would have to evaluate the whole conversation — a conversation that the parties doubtless imperfectly remember. And even if the jury could be confident what the parties said, whether that on balance constitutes “discourag[ing]” or not again seems like an opinion.

To be sure, the “discouraged her from sharing her story” statement contains the factual assertion that at least something Eramo said could be construed as discouraging. “Discouraging,” unlike “ugly” or “stupid,” likely has some factual component to it. But proving this specific factual assertion (and proving, by clear and convincing evidence, that defendants knew this assertion was likely false) would be very hard.

c. “A bruise mottling her face, Jackie sat in Eramo’s office in May 2014 and told her about the two others. One, she says, is a 2013 graduate, who’d told Jackie that she’d been gang-raped as a freshman at the Phi Psi house. The other was a first-year whose worried friends had called Jackie after the girl had come home wearing no pants. Jackie said the girl told her she’d been assaulted by four men in a Phi Psi bathroom while a fifth watched. (Neither woman was willing to talk to RS.) As Jackie wrapped up her story, she was disappointed by Eramo’s nonreaction. She’d expected shock, disgust, horror…. Of all her assailants, Drew was the one she most wanted to see held accountable — but with Drew about to graduate, he was going to get away with it. Because, as she miserably reminded Eramo in her office, she didn’t feel ready to file a complaint. Eramo, as always, understood.” Eramo’s response:

Dean Eramo did not have a “nonreaction” to Jackie’s claim that two other girls were assaulted at Phi Psi; in fact, Dean Eramo arranged for Jackie to meet with police and Dean Eramo and UVA urged Jackie to identify the girls or have them come forward.

This, I think, doesn’t get Eramo very far. In context, Jackie’s “nonreaction” seems to refer to the absence of an emotional reaction — specifically, the absence of visible “shock, disgust, [and] horror.” Nothing that Eramo says in the complaint suggests this allegation of Jackie’s (and Rolling Stone’s) was false. Eramo may have acted quite laudably in arranging for Jackie to meet with the police, and urging Jackie to identify the other alleged victims. But that doesn’t undermine the claim in the article, which is that Eramo didn’t respond by showing shock, disgust, or horror.

d. “Jackie was just starting her freshman year at the University of Virginia when she was brutally assaulted by seven men at a frat party. When she tried to hold them accountable, a whole new kind of abuse began.” Eramo’s response:

Jackie did not try to hold her supposed assailants accountable; in fact, she adamantly refused to file a report with UVA or to file a complaint or participate in a police investigation after Dean Eramo arranged for Jackie to meet with police…. Dean Eramo’s interactions with Jackie can in no way be characterized as “abuse.”

The “whole new kind of abuse” statement is the subheading to the Rolling Stone article; it is aimed at summarizing the article as a whole, and doesn’t mention Eramo at all. I thus doubt that the statement would be seen as sufficiently “of and concerning” Eramo, especially since the article speaks of alleged misconduct by many people, such as Jackie’s friends and the UVA administration more broadly.

Moreover, “new kind of abuse” is a general evaluative term, rather than itself a specific factual allegation: something bad happened here, the subhead is saying, and we think it morally tantamount to abuse. So I doubt that a court would say that this statement communicates a disprovable factual allegation about specific misconduct by Eramo.

e. “Given the swirl of gang-rape allegations Eramo had now heard against one of UVA’s oldest and most powerful fraternities … the school may have wondered about its responsibilities to the rest of the campus. Experts apprised of the situation by RS agreed that despite the absence of an official report, Jackie’s passing along two other allegations should compel the school to take action [out of] regard for campus safety.” Eramo’s responses that relate to this statement:

Nor did Dean Eramo take “no action” in response to reports of Jackie’s or two other girls’ alleged sexual assaults.

and

…. Dean Eramo arranged for Jackie to meet with police and Dean Eramo and UVA urged Jackie to identify the girls or have them come forward.

It seems to me that the “should compel the school to take action” statement is also not about Eramo as such, but about what UVA as an institution did or didn’t do — something that wasn’t within Eramo’s control. Even if UVA should have acted but didn’t, this doesn’t mean that Eramo herself was at fault, because for UVA to “act” in a sufficiently forceful way would have required decisions by many other people.

Moreover, “to take action” “despite the absence of an official report” in context means “to take sufficient action,” and indeed “to take sufficient action even recognizing that Jackie wasn’t making an official report.” The claim is that the school didn’t do what the author thinks it should have done (investigated the matter on its own, even without Jackie’s official statements). There again I don’t think there is a factual assertion (as opposed to opinion) about Eramo’s personal misconduct.

I’ll turn in a bit to defendants’ post-publication statements, just because the post is already very long. For now, let us move to the other elements of the libel test.

4. Proving falsehood: What would it take to show that, for instance, the “Eramo answered wryly, ‘Because nobody wants to send their daughter to the rape school’” statement was false, and that defendants knew it was likely false?

First, Eramo would likely testify that she never said this. This testimony, I suspect, would be pretty plausible. Even if jurors think UVA administrators failed to take rape cases seriously, they wouldn’t think that an administrator would say out loud — and to an alleged rape victim — what Eramo was quoted as saying.

Jackie could also be subpoenaed to testify, and it’s impossible to tell what she’d say if that happens. But even if she swears that she said it, the jury may well believe Eramo instead, especially if Eramo comes across as credible and Jackie comes across as less credible, and especially because Eramo’s side of the story is more plausible.

5. Proving “actual malice”: Eramo would also have to show, by clear and convincing evidence, that Erdely and Rolling Stone were subjectively aware of a strong likelihood that the statement was false, and that Eramo never said what she is accused of saying. Negligent (and even grossly negligent) failure to investigate, by itself, doesn’t prove recklessness.

Still, when reporters and editors had reason to think that a charge is “highly improbable,” and were “aware that [someone] was a key witness and that they failed to make any effort to interview [him],” that could be evidence that “the [publication’s] inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the accuser’s] charges.” (I quote here from Harte-Hanks Communications Inc. v. Connaughton (1989); see also Curtis Publishing Co. v. Butts (1967).)

According to the Columbia Journalism School report on Rolling Stone’s errors, Erdely did ask to interview Eramo, but the school refused to allow such an interview. Erdely could have e-mailed Eramo to check the “rape school” quote — a quote that cast Eramo in a particularly bad light, and that Eramo could have confirmed or denied without jeopardizing student privacy. On the other hand, would a denial by Eramo have “confirm[ed] the probable falsity” of Jackie’s charges, as opposed to just showing that the parties remembered the conversation differently (or that one of them was lying, but it’s hard to tell who)?

But beyond that, Eramo could point to the other reasons to doubt Jackie’s story, as outlined in the Columbia Journalism School report, arguing that Erdely or some of the Rolling Stone editors did consciously harbor doubts about Jackie’s overall veracity. And Eramo could subpoena the editors and ask whether they themselves consciously entertained such doubts. (Herbert v. Lando (1979) confirms that such discovery is potentially available.)

If the discovery reveals that Erdely or some of the Rolling Stone editors did have grave doubts about the story’s accuracy — again, a big “if” — those doubts coupled with the lack of an e-mail to Eramo about the quote could constitute “clear and convincing evidence” of “a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the accuser’s] charges.” And that in turn would satisfy the recklessness standard.

6. Summing up: So, as you can see, Eramo could have a case, but it won’t be an easy one. The court (likely a federal court) will probably throw out the claims based on some of the statements, on the grounds that those statements don’t make factual claims about Eramo (but are instead either opinions that show defendants’ evaluation of the matter, or are about the university as a whole). And for the remaining statements, Eramo will have to show that they are false, and show by clear and convincing evidence that the defendants knew the statements were likely false.

I think that Eramo’s strongest claim is about the “Because nobody wants to send their daughter to the rape school,” because the allegation is clearly a factual claim about her. But even there, she would have to show she didn’t say it, and show by clear and convincing evidence that Erdely and the Rolling Stone editors knew that she likely didn’t say it, and that Jackie was lying (or misremembering).

* * *

Still with me? Here, for the sake of completeness, are my quick reactions to the defamation claims based on the defendants’ statements in interviews and press releases (as opposed to the Rolling Story itself):

f. “[Jackie] was kind of brushed off by her friends and by the administration…. And eventually, when she did report it to the administration, the administration did nothing about, they did nothing with the information. And they even continued to do nothing even when she eventually told them that she had become aware of two other women who were also gang raped at the same fraternity.” Eramo’s response:

This statement is of and concerning Dean Eramo, as the article only identifies one UVA administrator to whom Jackie reported the alleged assault. Moreover, Erdely intended to refer to Dean Eramo in this statement, and those who know Dean Eramo or who read “A Rape On Campus” understood this statement to be about Dean Eramo….

Dean Eramo did not do “nothing” in response to Jackie’s allegations and did not continue to do nothing when Jackie claimed to know of other girls who were assaulted at the Phi Psi house. Dean Eramo encouraged Jackie to file a criminal complaint, arranged for her to meet with the police, and encouraged Jackie to convince the other supposed victims to come forward.

I think the analysis here is much like that for statement (e) (because, though Jackie spoke to Eramo, Erdely’s claim is about what “the administration” as an institution did or didn’t do, and since the “did nothing” statement in context seems to mean “did nothing sufficiently significant”).

g. “It is incredibly extreme. I mean whether this was perpetrated by a serial rapist who has many victims — I mean it seems like no matter what, this is an incredibly messed up situation. But it was absolutely a violent crime and I think what was really telling was the idea that — and this really underscores the entire article; is the student body and the administration doesn’t really treat rape as a crime, as a violent crime …. Even in this case, right, exactly. And this is why this case blew my mind, that Jackie’s situation blew my mind; that even in a situation that was so extreme and so obviously within the realm of criminal, that they would seek to suppress something like this because that’s really what they did. Not only did they not report it to police, but really I feel she was sort of discouraged from moving this forward.” Eramo’s response:

Dean Eramo did not do “nothing” in response to Jackie’s allegations and did not continue to do nothing when Jackie claimed to know of other girls who were assaulted at the Phi Psi house. Dean Eramo encouraged Jackie to file a criminal complaint, arranged for her to meet with the police, and encouraged Jackie to convince the other supposed victims to come forward.

Dean Eramo in no way sought to “suppress” Jackie’s alleged sexual assault, and in no way discouraged Jackie from seeking to hold the perpetrators accountable through the University and/or criminal processes. In fact, Dean Eramo supported Jackie with respect to reporting her alleged assault to the police and arranged for Jackie to meet with police.

Dean Eramo did not in any way encourage Jackie not to report her alleged assault, and in fact did the opposite.

The problem here, coupled with the absence of a specific reference to Eramo, is that the rather harsh accusation of “they would seek to suppress something” is followed with an elaboration: “Not only did they not report it to police, but really I feel she was sort of discouraged from moving this forward.” The “suppression” charge thus seems to be just another way of saying “discouraged” (see the discussion of statement (b) above). And beyond that, “I feel” and “sort of” signal that Erdely is setting forth her evaluation of how the university’s action should be characterized, another signal that she’s expressing her opinion rather than stating provable facts.

h. “She’s particularly afraid of Drew who she’s assigned a tremendous amount of power in her own mind …. So I think that the idea of [Jackie] facing him or them down in any way is really just emotionally crippling for her. She’s having a hard time facing up to that, and I think that she needs a lot of support if she’s going to get to the place where she can actually confront them. When she does actually run into some of her alleged assailants on campus sometimes, she recognizes them all. She can identify them all. When she sees them, just the sight of them, obviously it’s a shock but it also tends to send her into a depression. So it just goes to show sort of the emotional toll something like this would take. I just think it would require a great deal of support for her to move forward into any of these options to resolve her case and that’s something that’s been completely absent. She really hasn’t had any of that support from her friends, from the administration, nor from her family.” Eramo’s responses are quoted above under statement (g).

This statement strikes me as opinion. The condemnation of Eramo is that Jackie “hasn’t had any of that support [referring to the “great deal of support” in the earlier sentence -EV] … from the administration.” And what counts as “support” is again a matter of evaluative, opinionated judgment, not a factual assertion. (By way of comparison, “the administration never told her whom to call at the police department,” for instance, would be a factual claim, because it specifically says what the administration allegedly didn’t say. But “she needed a great deal of support, and the administration hasn’t provided any of that support to her” is a matter of opinion, because it obviously turns on what the speaker thinks should count as “support.”)

i. “What I found is that UVA is a place where their culture is one of extreme loyalty, so I guess it shouldn’t have surprised me that the community of survivors, they’re totally devoted to the University, even as they’re not very happy with the way that their cases are handled. They totally buy into the attitude that radiates from the administration that doing nothing is a fine option. You know, if you unburden yourself to the Dean and take care of your own mental health, then that’s good enough. They created this support group, which is great for them and they do activism, they do bystander support seminars, I mean intervention seminars and things like that which is great, but really what they’re doing is affirming one another’s choices not to report, which is, of course, an echo of their own administration’s kind of ethos.” Eramo’s responses are quoted above under (g).

Here too it’s hard to find a specific factual, reputation-injuring assertion about Eramo; how to evaluate the supposed “attitude that radiates from the administration” is a classic matter of opinion, especially when the administration does indeed allow a student to just unburden herself to the Dean for her own mental health as an “option” (whether or not “fine”), without demanding any further action.

j. “As I’ve already told you, the gang-rape scene that leads the story is the alarming account that Jackie — a person whom I found to be credible — told to me, told her friends, and importantly, what she told the UVA administration, which chose not to act on her allegations in any way — i.e., the overarching point of the article. THAT is the story: the culture that greeted her and so many other UVA women I interviewed, who came forward with allegations, only to be met with indifference.” Eramo’s response:

This statement is of and concerning Dean Eramo, as the article only identifies one UVA administrator to whom Jackie reported the alleged assault. Moreover, Erdely intended to refer to Dean Eramo in this statement, and those who know Dean Eramo or who read “A Rape On Campus” understood this statement to be about Dean Eramo.

This statement is false. Dean Eramo did act on Jackie’s allegations, both by encouraging her to file a criminal complaint with the police and by offering the opportunity to seek an administrative remedy through the University disciplinary system. Dean Eramo also arranged for Jackie to meet with police. Dean Eramo did not respond to Jackie’s allegations with indifference. By the time she made this statement, Erdely also knew that the other sexual assault survivors she had interviewed at UVA had completely refuted the claim that Dean Eramo was indifferent to their allegations.

I think the analysis here is much like that for statements (e) and (f).

k. “The story we published was one woman’s account of a sexual assault at a UVA fraternity in October 2012 — and the subsequent ordeal she experienced at the hands of University administrators in her attempts to work her way through the trauma of that evening. The indifference with which her complaint was met was, we discovered, sadly consistent with the experience of many other UVA women who have tried to report such assaults. Through our extensive reporting and fact-checking, we found Jackie to be entirely credible and courageous and we are proud to have given her disturbing story the attention it deserves.” Eramo’s response:

This statement is of and concerning Dean Eramo, as the article only identifies one UVA administrator to whom Jackie reported the alleged assault. Moreover, Erdely intended to refer to Dean Eramo in this statement, and those who know Dean Eramo or who read the article understood this statement to be about Dean Eramo.

This statement is false. Jackie did not suffer an ordeal at the hands of Dean Eramo, and Dean Eramo did not meet Jackie’s complaint with indifference.

Again, I think the analysis here is much like that for statements (e) and (f). What constitutes an “ordeal” is a matter of opinion; likewise with “indifference,” which in context strikes me as meaning lack of the sort of attention and help that the speaker thinks is adequate.