This fall has been a tricky time for media law.
From the Rolling Stone defamation verdict to , journalists are facing a rapidly evolving legal landscape that has only been pushed further into contention by the election results last week.
3. Trump said he would “open up libel laws” so he can “can sue [news orgs covering him] and win lots of money” https://t.co/MQIT9w7MYe
— Freedom of the Press (@FreedomofPress) November 15, 2016
Earlier this month, a jury ruled that both Rolling Stone and freelancer Sabrina Erdely were guilty of actual malice in publishing Ederly’s now-disproved 2014 piece “.” The story, which profiled a victim of alleged brutal gang rape at a University of Virginia frat house, went viral after its publication. The story ignited a national firestorm, only to be retracted a few months later when the supposed-victim’s story began to unravel under closer media speculation.
The plaintiff in the case, former University of Virginia dean Nicole Eramo, was awarded $3 million in damages, including $2 million of the sum from Erdely herself. While some have argued that such amounts are the price to be paid of irresponsible journalism, others, like first amendment lawyer , aren’t so sure.
“It doesn’t look like Rolling Stone will fold as a result of this,” Ross told MediaFile, noting that Rolling Stone is facing another pending lawsuit from Phi Kappa Psi, the fraternity in which the alleged attack was carried out. “But you worry about a climate in which juries are giving large awards,” Ross said of future related cases.
Evidence used in Eramo Rolling Stone trial should be useful to the fraternity that is also suing – https://t.co/oVDX95Xkfa
— Ashe Schow (@AsheSchow) November 8, 2016
Yet another source of worry has also come in falling revenue streams, which have left publications more vulnerable to bankruptcy when slapped with hefty lawsuits. Online media company earlier this year after it was ordered to pay professional wrestler Hulk Hogan funded by billionaire Peter Thiel.
While insurance will likely cover the damages in the Rolling Stone case, such amounts still have the possibility to inflict serious financial pain on smaller, local publications. “[Rolling Stone], The New York Times, Washington Post, they have deeper pockets than most journalists have,” commented Ross.
“There are things that have been going on this year that, taken together, suggests that libel verdicts like this might have a chilling effect,” Ross lamented in an interview just before the election. Specifically, Ross says the chilling effect could come “when people self-sensor because they’re afraid of the consequences of speaking.”
The decision in the Rolling Stone case may not itself cause alarm for the outlet. Ross agrees that the publication of the article was “such an unusual constellation of unprofessional behavior” that serious journalists and serious publications need not be frightened by the verdict. In a report by the Columbia Journalism Review of the incident, the author notes that even “” were overlooked by the editorial staff of Rolling Stone. “The report was devastating,” said Ross.
However, it is the larger libel climate that has Ross most concerned. President-elect Donald Trump has a history of threatening publications with libel lawsuits, so much so, in fact, that the American Bar Association issued a report on Trump’s use of libel lawsuits, only to the report for fear of a libel lawsuit from Trump. (The American Bar Association eventually did publish the report ).
“This isn’t a healthy atmosphere for responsible journalism digging at serious issues,” said Ross. “Writers may not go after certain kinds of stories and traditional outlets for news may not publish certain kinds of stories because of these decisions.”
Yet, all hope should not be lost. Ross argues that serious journalists – their organizational counterparts – shouldn’t back down from the challenge of protecting the integrity and ethics of journalism.
“As a society, as a legal profession, and as a journalism profession, we really need to keep a close eye,” Ross encouraged. “We must make sure that the standards for making a libel case remain high, and that journalists don’t start censoring themselves.”