Lawyers for Rolling Stone are surely playing a form of courtroom chess as the magazine defends itself in a Virginia court over its notorious University of Virginia gang rape story.
In sum, they'd be smart to be thinking several moves ahead, contemplating the possibility of losing the high-stakes defamation trial, and perhaps having a possibly stronger chance of victory on appeal.
University administrator Nicole Eramo is suing for $7.5 million, alleging she was cast as the story's "chief villain" and portrayed as indifferent to the claims of "Jackie," the story's protagonist whose claims were discredited and later retracted by the magazine.
Says Michael Dorf, a Chicago attorney who teaches First Amendment law and has also handled President Obama election law matters when he was a candidate:
"Dean Eramo has claimed 'actual malice' by Rolling Stone, which means it either published knowing that the allegations in the article were false, or that it acted in reckless disregard of whether the article was true or false. Since the best defense to defamation, truth, seems to be out since Rolling Stone retracted the story, it has two other avenues."
First, it has to show "its good-faith belief in the truth of the story (to get rid of intent) and to show that it did its best to verify the accuser's account (to get rid of reckless disregard)." He notes how a formal Columbia Journalism School report criticized Rolling Stone's fact gathering, which doesn't help the defense.
"Second, it will probably try to prove that all the things said or implied about Dean Eramo were merely opinion, rather than a statement of fact, and therefore excluded from libel," Dorf said.
"If Eramo's defamation claim comes down to her reputation being hurt because Rolling Stone said she didn't do enough to help victims or was part of a campus culture that showed an indifference to rape, that could be portrayed as a matter of opinion," he said.
The magazine's argument so far has been that up until the point that Jackie became clearly anxious and dodgy — after the story was published — it didn't have cause to doubt her. Reporter Sabrina Rubin Erdely has testified that she believed Jackie, found no great inconsistencies in her tale and that Eramo herself didn't even hint she had any suspicions.
As history shows, the need to show actual malice by a defamation defendant is difficult. Rolling Stone received an important and favorable related ruling when Eramo was deemed a limited-purpose public figure.
In theory, Erdely and Rolling Stone need not convince the jury its investigation was comprehensive. The law is such that it could be shown to have been very inadequate, and they could still win.
But the reality in an era in which Hulk Hogan won a huge victory over Gawker is that there may be almost reflexive qualms toward Rolling Stone, or any other media defendant these days — especially with Donald Trump bashing the press on a daily basis.
It's partly why all is not lost if the magazine loses at trial since, at first blush, several media attorneys find the legal underpinnings of its case to be solid.
Before the jury itself, much will depend on how it views the testimony of the reporter and her editors.
Will anybody admit to pre-publication doubt about Jackie's account? How will the jury handle the magazine's defense of not interviewing a raft of Jackie's friends and the alleged fraternity rapists?
The magazine says it kept its reportorial distance because the primary source feared retribution. That could be tricky argument to a jury not especially sensitive to journalistic processes. As one prominent press lawyer notes, courts have indicated that the deliberate avoidance of witnesses who might not corroborate a tale is evidence of actual malice.
So some jurors might shake their heads over the magazine's explanation of why so many people, especially friends, weren't thoroughly vetted and asked about Jackie.
As for Jackie herself, a large chunk of a three-hour video deposition has been played to the jury. She maintains she was sexually assaulted but also claims pressure by the magazine and frequently responded to questions with, “I don’t remember.”
It's all partial explanation as to why, if you're the magazine, you're "building a record," as lawyers put it, especially to appeal any potential thumbs-down verdict on malice.
Further, you want to try to minimize any damage award, something over which Gawker failed miserably against Hogan.
Gawker's A.J. Daulerio was portrayed as arrogant, even cavalier, during his testimony in the Hogan case. By comparison, reporter Erdely was generally portrayed as contrite, and even in tears, during her early testimony last weekend.
That's a far better tack to take, even if no guarantee of success at trial in what's a tricky age for media defendants.