Professor Goodman and RIIPL to Guide NJ Journalists on Digital Newsgathering Law

 

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Professor Ellen P. Goodman is thrilled to announce the receipt of a grant from the Geraldine R. Dodge Foundation in support of a RIIPL project on digital journalism.  The grant comes from the Foundation’s journalism sustainability project, with funding from the John S. and James L. Knight Foundation.  Working with students, Goodman will be conducting research on the frequently asked questions of New Jersey digital journalists with respect to their legal rights and responsibilities in the newsgathering process.  We expect that these will include issues such as defamation, privacy, social media, hacked data, government records, and the use of new technologies like drones.   The FAQ project will produce general written guidance on these questions that will serve as a much-needed community resource.  The project will also model law school participation in the new news ecosystem.  FAQ partners will include the NJ News Commons and the Local News Lab.  #njmedia @RutgersIIPL @ellgood.

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Why UVA Fraternity is Likely to Succeed Against Rolling Stone

By: Brittney Cafero (Rutgers-Camden Law Class of 2015)

 Rolling Stone is likely to be liable if a University of Virginia fraternity sues it for defamation, as threatened. UVA’s Phi Kappa Psi (PKP) fraternity has said it will sue the magazine for a story published in November 2014 entitled, A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA. The article recounted an alleged gang rape of a student named Jackie at a party at PKP. Once the article was published it gained national attention, but there was also much doubt as to the story’s truth.

Not long after it ran, Rolling Stone posted an editor’s note on its website that effectively withdrew the story. Rolling Stone then hired Columbia University’s Graduate School of Journalism to conduct an investigation of the reporting process. Recently, Columbia Journalism Review issued a 13,000-word report—which was a product of the investigation—that discredits the Rolling Stone story. For instance, the report found that Rolling Stone had failed to adhere to routine journalist practices, such as reporting, editing, and fact checking. As a result of the report, Rolling Stone issued a retraction, and PKP announced it plans to take legal action against the magazine.

PKP has grounds for a defamation suit, but it will face several challenges. As of now, it is not clear whether PKP itself will file a lawsuit or whether individual members will be named as plaintiffs. Most likely PKP itself will sue because Phi Kappa Psi was identified throughout Rolling Stone’s story, whereas none of the individual members were identified.

Students participating in rush pass by the Phi Kappa Psi house
at the University of Virginia in Charlottesville, Va., in January 2015.

To prove defamation, PKP must prove several elements. First, the story must be “of and concerning” the fraternity. PKP probably satisfies this element because the article stated the following: the alleged gang rape took place at PKP, the fraternity hosted a “date function” that night, prospective pledges were present, and the person who allegedly arranged the attack on Jackie was a PKP member. These statements all presumably damaged PKP’s reputation in the eyes of some readers. According to the CSJ Report, Sabrina Erdely—the author of the Rolling Stone article—felt Jackie “was secure” about the name of the fraternity: Phi Kappa Psi. However, none of the statements made in the Rolling Stone article about PKP were proven to be true statements of fact and they were not sufficiently fact-checked. For these reasons, PKP should be considered an “of and concerning” party to proceed with a lawsuit against Rolling Stone.

Next for defamation, PKP must prove falsity because the article is about a matter of public concern, as it pertains to sexual assault on college campuses. The writer of the article, Sabrina Erdely, said she was searching for a single college rape case that would show “what it’s like to be on campus now … where not only is rape so prevalent but also that there’s this pervasive culture of sexual harassment/rape culture.” Here, PKP can use Rolling Stone’s recent retraction as evidence that the magazine has conceded falsity.

Lastly for defamation, PKP must prove that Rolling Stone acted with the required level of fault, which is negligence if PKP is a “private figure” and actual malice if it is a “public figure.” According to the Supreme Court in Gertz v. Robert Welch, Inc., public figures assume roles of prominence in society; and thrust themselves to the forefront of particular public controversies. They also have access to a special self-help remedy because they have significantly greater access to the channels of effective communication to counteract false statements. On the other hand, private figures lack the means to rebut false statements and there is thus a greater state interest in protecting them. It is arguable as to whether the local and national fraternity are public or private figures, but regardless, it seems PKP would be able to meet either applicable standard of fault against Rolling Stone.

If PKP is deemed a private figure, then it can recover if it shows that Rolling Stone was negligent in its investigation. Under a negligence standard, PKP only needs to prove that Rolling Stone failed to exercise the care that a reasonable, prudent journalist would exercise under the same circumstances. Here, PKP can use the CSJ Report as evidence that Rolling Stone failed to adhere to routine journalistic practices.

For instance, the report states that Erdely failed to corroborate her facts in the article with PKP, such as the date of the alleged party, whether there was pledging taking place, and whether one of the PKP members worked as a lifeguard with Jackie at UVA during such time or was in her anthropology class. Although Erdely emailed PKP’s president and asked if he could comment on the allegations of a gang rape made against it, the CSJ Report found she should have provided PKP with more details to give it an opportunity to verify her facts. As the CSJ Report found, there was a lifeguard who worked at the same time Jackie did, but he was not a member of PKP. These examples should be enough to prove negligence by Rolling Stone.

If PKP is deemed a public figure, then it must prove actual malice, which is a higher level of fault than negligence. Under the actual malice standard, PKP must prove that Rolling Stone published the statement knowing it was false or with reckless disregard for the statement’s truth. For instance, if a bell went off in the mind of the reporter or editor that something seemed off about the statements before publication and yet they decided to publish them anyway, then that could prove actual malice. The information gathered in the CSJ Report strongly suggests that this standard has been met here—specifically, that Erdely and her editors knew there was a good chance that the article was false and purposefully avoided learning the truth. For example, after the article was published, according to the report, Erdely said, “An alarm bell went off in my head…how could Jackie not know the exact name of someone she said had carried out such a terrible crime against her.”

Jackie made no request that Erdely refrain from providing PKP with details or contacting her friends, but Erdely chose not to do either. Erdely’s choice to not provide PKP with details was risky, as the CSJ Report noted. In addition, Erdely chose not to examine PKP’s social media for members to interview and she chose not to look for students who worked at the aquatic center, even though there was no agreement made between her and Jackie to refrain from those inquiries. More so, the CSJ Report found that Erdely claimed she included a disclosure in an early draft of the story that stated Jackie refused to divulge her alleged attacker “Drew’s” full name, but her editor, Sean Woods, cut the passage out. These examples should be enough to prove that Rolling Stone acted with actual malice.

Ultimately, Rolling Stone mislead readers to believe that Rolling Stone knew who “Drew” really was; interviewed Jackie’s friends; and verified that PKP had a party on the night described, that one of PKP’s members was a lifeguard and one was in Jackie’s anthropology group, and that members were pledging that semester. Although this situation may have a chilling effect on sexual assault victims telling their stories to journalists, Rolling Stone’s failure hopefully provides guidance for how journalists can better investigate college sexual assault cases in the future.

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Prof. Carrier WSJ interview on EU charges against Google

Prof. Carrier was interviewed on Wall Street Journal TV about the European Union’s charges against Google for favoring its services over those of rivals.

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New article on Loestrin pay-for-delay case

Issues of pay-for-delay settlements are percolating in the courts: California Supreme Court, 3rd Circuit, district courts.

Next up: the the 1st Circuit, reviewing the dangerous Loestrin decision. In In re Loestrin 24 FE Antitrust Litigation, the U.S. District Court for the District of Rhode Island issued a concerning ruling on drug patent settlements. The court misapplied the Supreme Court’s landmark decision in FTC v. Actavis, granting a motion to dismiss plaintiffs’ challenge to a settlement that had allegedly delayed generic entry.

In this short article, I summarize the case and then discuss six concerns with the opinion: (1) an improper framework, (2) an excessively high bar confronting plaintiffs, (3) a restriction of Actavis to cash payments, (4) the neglect of Actavis holdings, (5) the casting of blame on the Supreme Court, and (6) a disregard of pleading standards.
If this decision stands and is adopted by other courts, patent litigants will gladly accept the roadmap the court provided to “evade Sherman Act scrutiny.”
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