It was a pleasure to be on Fox New’s Happening Now show with host, Heather Nauert on an alleged sexual assault case that was reported by the media and later retracted.

We discussed the interesting defamation lawsuit filed by a University of Virginia campus administrator against Rolling Stone magazine over an article they later retracted regarding a sexual assault allegation. The article discussed an alleged sexual assault on campus where the “victim” indicated that an administrator (who is the plaintiff in the civil lawsuit) was unresponsive, insensitive and uncaring of her situation.  As a sexual assault lawyer both as a prosecutor and criminal defense attorney, sexual assault cases have to be handled with care.  But in this case, the question is if the sexual assault case is true in the first place.

The article caused a firestorm of controversy for the college, a fraternity, this administrator, and many others. However, soon the facts that the “victim” alleged came under scrutiny and Rolling Stone repeatedly apologized for having printed the article.

Those watching this case feel that Rolling Stone did not properly vet the sexual assault case facts enough; that they did not confirm facts, but rather, simply accepted the word of the alleged sexual assault “victim” alone. The lawsuit claims this defamed those mentioned in the article and that their reputations were damaged in the process.

While it is true that journalists should do some basic due diligence before reporting a story, the legal fact is that many times they go with one source who may have a story no one is willing to tell, which happens often in a sexual assault case. Many times this has actually led to unraveling cover-ups and facts hidden from the public. Sexual assault cases on college campuses is a societal problem to be sure.  But sometimes, the sexual assault case is untrue and people are wrongly hurt when it was inaccurately reported.

Legally, this case to me is clear. Defamation is a hard case to prove by definition as there are strong protections for freedom of speech and the freedom of the press that are very powerful. Courts are very reluctant to “chill” these basic rights, even if it means that from time to time people are injured along the way. These rights are considered cornerstones to a free society and given great protection, even when they are abused.

Under the law, opinions (as opposed to stating facts) are not actionable, because they are opinions of a person only. So, on this level, there is a legal issue when there are opinions expressed about how this was handled at the school.

Also, the truth is always a defense to any defamation case. So, the plaintiff has to show that it was not truthful. Then, the plaintiff must show the defendant either knew that it was untruthful and/or had a reckless disregard for the truth. This is a very difficult burden for the plaintiff to show.

Lastly, there are actually different levels of defamation depending on who the article is written about. A private citizen that is not a public figure, enjoys the most protections from defaming statements. But, as your public profile goes up, your privacy and rights to be protected from defamation go down.

There are many levels of public officials under the law. Actors, entertainers, TV personalities, government officials, elected leaders, are all fair game with the least protections. But so too are lower level officials, such as state college public officials that have policy making authority, such as the administrator that filed this lawsuit– claiming that she was insensitive to the sexual assault case a lie.  But to me, that is a matter of opinion, not fact- – making her civil case difficult to prove.

And, when a public official is defamed, it is required that they prove to a jury that there was “actual malice” in the reporting. This is a very, very difficult thing to prove, as well.  As a former NJ County Prosecutor and now criminal defense attorney, I know well that many times what is reported is nowhere near what is actually occurring in reality. But, to take action over it under the law is very difficult indeed.

While I believe that if this sexual assault case is untrue that it is reprehensible that the college was so maligned, it is also true that journalists have great protections, especially if the article is about a public issue of importance, such as sexual assault on college campuses. As a former NJ head County Prosecutor, and even as a criminal defense attorney, the instances of rape on college campuses and those colleges that did not follow proper protocols was alarming. So, I see this as a great issue of public importance under the law.

I believe for all of these reasons Rolling Stone Magazine will not be held accountable, regardless of whether the sexual assault case is true, or not. They may settle to rid themselves of further bad publicity, but if it goes to trial, I am predicting the plaintiff loses due to these very tough laws about defamation and what we currently know of the facts of this case.

© 2016 Robert (Bob) Bianchi, Esq.

Former head NJ County Prosecutor

NJ Supreme Court Certified Criminal Trial Attorney

Founding Partner The Bianchi Law Group, LLC


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