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.”
Continue Reading Phi Kappa Psi’s Doubtful Defamation Claim Against Rolling Stone