UPDATE 1, November 10, 2015: The fraternity sued Rolling Stone. The complaint alleges at paragraph 85:
Rolling Stone published the defamatory Article even though there was “no substantive basis” to support Jackie’s story. Rolling Stone destroyed Phi Kappa Psi’s reputation through false statements, explicit and implied, published with actual malice— knowledge of falsity or reckless disregard for truth or falsity—and negligence. The allegations in this Complaint dealing with fault demonstrate that Rolling Stone published its Article, and the post-publication statements that are also alleged by this Complaint to have defamed Phi Kappa Psi, with actual malice. All of these allegations are also pleaded to establish negligence, in effect a “lesser included offense” for fault purposes. Because Phi Kappa Psi is a private figure, it need only establish basic negligence—the failure by Rolling Stone to act as an ordinary reasonable publisher under the circumstances—to establish liability. In order to qualify for presumed and punitive damages, however, Phi Kappa Psi in this Complaint goes above and beyond the negligence standard required to establish liability, to additionally allege actual malice. All of the allegations of fault alleged below that meet the actual malice standard of knowledge of falsity or reckless disregard for truth or falsity thus also allege the lesser included fault level of negligence.
As explained below, I don’t think Phi Kappa Psi will be able to convince the court “it need only establish basic negligence,” and I don’t think they will be able to prove, as a factual matter, “actual malice.”
UPDATE 2, June 29, 2016: A defamation suit filed by Phi Kappa Psi members was dismissed. The suit filed by Phi Kappa Psi remains pending, but still faces multiple case-dispositive motions.
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Rolling Stone’s recent article, “A Rape on Campus,” needs no introduction. (If you really need one, check the extensive Wikipedia article.) On April 5, Rolling Stone formally retracted the article and published an extensive outside critique of its fact-checking and reporting methodology by Steve Coll, dean of the Columbia School of Journalism. The next day, the Phi Kappa Psi chapter at UVA issued a press release announcing “plans to pursue all available legal action against the magazine.”
As the press release begins:
“The report by Columbia University’s School of Journalism demonstrates the reckless nature in which Rolling Stone researched and failed to verify facts in its article that erroneously accused Phi Kappa Psi of crimes its members did not commit,” said Stephen Scipione, President of the Virginia Alpha Chapter of Phi Kappa Psi.
Scipione’s use of the word “reckless” is undoubtedly a reference to part of the standard for proving defamation, i.e. showing “the statements were made with knowledge that they were false or with reckless disregard for their truth.” Cashion v. Smith, 749 SE 2d 526, 533 (Va. 2013). But that magic word, “reckless,” is just one small part of the analysis. As explained below, whatever that critique by Steve Coll says about Rolling Stone’s journalistic practices, that critique also includes a lot of information and conclusions that will make it difficult for the fraternity to prevail in a defamation lawsuit.
Defamation has a special place in our firm’s history (see some of our cases here, here, and here — they all settled confidentially), and the truth is: defamation cases are tough. By and large, the vast majority of people whose reputations have been unfairly damaged in the media do not have a viable legal claim. Defamation cases can fail for a million reasons, and here I want to focus on just two problematic issues: the fact that the fraternity is bringing the case, and the Coll report’s findings about the mindset of Rolling Stone.
Let’s start by being clear about what this post is not about. This post is not about sexual assault on college campuses; for that, watch The Hunting Ground. This post is not about journalistic standards; for that, Poynter has compiled more than a dozen reactions to the article’s retraction.
Rather, this post is about the single issue raised by the press release: whether “the Virginia Alpha Chapter of Phi Kappa Psi” has any “available legal action against the magazine.”
Over at CNN.com, Danny Cevallos, a criminal defense attorney, identified a key limitation on the proposed lawsuit: as described so far, it would be on behalf of the fraternity only, and not any particular members. That starts the fraternity off in an awkward spot: the vast majority of defamation law relates to claims brought by individuals. Virginia law recognizes the right of individuals who were part of a defamed group to bring cases. See Gazette, Inc. v. Harris, 325 SE 2d 713, 738 (Va. 1985)(citing Ewell v. Boutwell, 138 Va. 402 (1924)(“if the language employed is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.”)). But that’s not what the fraternity is proposing, at least not yet. [Update: I discuss this issue below.]
I can’t tell from the fraternity’s website what they actually are — a corporation? not-for-profit? unincorporated association? As I’ve written before, many fraternities take creative steps to avoid liability, including gaming their official structures — but the claims available for companies are a bit more limited and less developed under the law, and generally relate to accusations of fraud. See, e.g., General Products Co., Inc. v. Meredith Corp., 526 F. Supp. 546 (E.D. Va. 1981)(“A corporation may be defamed by statements which cast aspersion on its honesty, credit, efficiency or its prestige or standing in its field of business.”) The original article by Rolling Stone has been removed, but a copy is still available on archive.org. I found it interesting that the fraternity’s press release didn’t identify any particular statements about the fraternity in the original article that they alleged were false, and I had trouble identifying any myself.
Consider, for example, this paragraph from the original article:
A bruise still 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.
What, exactly, is the defamatory accusation against the fraternity as an association? There are two separate accusations against certain unidentified members of Phi Kappa Psi, but nothing in particular to the fraternity itself. This may seem like an unnecessarily subtle distinction, but defamation cases are routinely dismissed on issues just like these. For the fraternity itself to succeed in a claim, it must point to defamatory accusations about it as an organization, not merely defamatory accusations against its members.
That’s the first hurdle.
The second hurdle relates to the standard applicable to lawsuit, which differs based on the identity of the plaintiff. I don’t think the Virginia Alpha Chapter of Phi Kappa Psi has a high likelihood of being deemed a “private” plaintiff.
It’s a large and well-known organization, one that, the original article notes, already had a reputation for sexual assault (I saw no indication in the Coll report that there were any problems with the following paragraph):
You can trace UVA’s cycle of sexual violence and institutional indifference back at least 30 years – and incredibly, the trail leads back to Phi Psi. In October 1984, Liz Seccuro was a 17-year-old virgin when she went to a party at the frat and was handed a mixed drink. “They called it the house special,” she remembers. Things became spotty after Seccuro had a few sips. But etched in pain was a clear memory of a stranger raping her on a bed. She woke up wrapped in a bloody sheet; by rifling through the boy’s mail before fleeing, she discovered his name was Will Beebe. Incredibly, 21 years later, Beebe wrote Seccuro a letter, saying he wanted to make amends as part of his 12-step program. Seccuro took the correspondence to Charlottesville police. And in the midst of the 2006 prosecution that followed, where Beebe would eventually plead guilty to aggravated sexual battery, investigators made a startling discovery: That while at Phi Psi that night, Seccuro had been assaulted not by one man, but by three. “I had been gang-raped,” says Seccuro, who detailed her ordeal in a 2011 memoir.
Moreover, as the Coll report notes, there’s no denying that sexual assault on campus is an issue of public concern, and Rolling Stone had information that it was a problem at UVA and information that — arguably — suggested it was a particular problem at that fraternity:
Erdely’s choice of the University of Virginia as a case study was well timed. The week she visited campus, an 18-year-old UVA sophomore went missing and was later found to have been abducted and killed. The university had by then endured a number of highly visible sexual assault cases. The Department of Education’s Office of Civil Rights had placed the school, along with 54 others, under a broad compliance review.
On Oct. 2, Erdely interviewed UVA President Teresa Sullivan. The reporter asked probing questions that revealed the gap between the number of assault cases that the university reported publicly and the cases that had been brought to the university’s attention internally. Erdely described the light sanctions imposed on students found guilty of sexual misconduct. She asked about allegations of gang rapes at Phi Kappa Psi. Sullivan said that a fraternity was under investigation but declined to comment further about specific cases.
Given that the fraternity is likely a public figure, or at least a limited purpose public figure, and given that the reporting was on a matter of public concern, that means the fraternity will have to satisfy the “actual malice” standard, which brings us back to the Cashion v. Smith case identified above. Cashion described the “malice” standard this way:
A non-exhaustive list of such elements included a showing that: (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. We held that any one of the elements if proved by clear and convincing evidence, defeats the privilege.
Cashion at 533 (citations and quotations omitted). And this is where the details of the Coll report become so important. As Coll found:
Erdely believed firmly that Jackie’s account was reliable. So did her editors and the story’s fact-checker, who spent more than four hours on the telephone with Jackie, reviewing every detail of her experience. “She wasn’t just answering, ‘Yes, yes, yes,’ she was correcting me,” the checker said. “She was describing the scene for me in a very vivid way. … I did not have doubt.” (Rolling Stone requested that the checker not be named because she did not have decision-making authority.)
(Emphasis added.) A ‘firm belief’ in the truth of what was reported is the antithesis of showing Rolling Stone published the statements with “knowledge that they were false or with reckless disregard for their truth.” It is also inconsistent with a showing Rolling Stone was “motivated by personal spite or ill will.” Indeed, the Coll report finds rather swift action by Erdely and Rolling Stone once they came to doubt their source’s credibility.
That’s the second hurdle.
As I said, there are many other problems with a claim against Rolling Stone. My point here is to simply show how difficult defamation cases are, and to show that, even if we accept all kinds of problems in Rolling Stone’s handling of the story, that does not mean the fraternity can file a suit and collect a check — unless, of course, Rolling Stone just wants to get rid of the fraternity’s potential claims to keep it out of the press. If Rolling Stone fights it, though, they have good odds of getting it dismissed before it makes it to a jury.
Update: Eugene Volokh has an analysis of some of the other issues. I agree with him that, when it comes to individual fraternity members bringing a claim for individual defamation, “no one would be identifiable enough to qualify as a potential plaintiff under this theory.” I similarly agree that, for the fraternity to prevail in a case, it would have to show at a minimum a “loss of income,” which will be tricky at best, and might not even be accurate, we don’t know what their income looks like.
I disagree, however, that, if an individual brought a claim, they could proceed under the “negligence” standard (instead of the “actual malice”) standard, because Rolling Stone would likely be successful in arguing that the statements were about a matter of public concern, something the Coll report supports. Also, Volokh hedges by saying it’s “conceivable” that the actual malice / recklessness standard could be met. I suppose it’s “conceivable,” but if discovery goes the way the Coll report did, it will simply reaffirm Erdely and Rolling Stone’s genuine belief in the report and will show at most negligence in their fact-checking, but not the sort of “reckless disregard for the truth” necessary to prevail.