ON THE BLUNDER OF THE ROLLING STONE
Investigative journalism gets the hook.
In the December 2014 issue of Rolling Stone (released in November), writer Sabrina Rubin Erdely published a devastating article detailing an alleged gang rape concurring at The University of Virginia chapter of the Phi Kappa Psi fraternity. Following the publishing of the article, the UVA campus was rocked with negative reaction, resulting in the short term suspension of all fraternities on campus. There were cries of condemnation of Greek life by professors and students alike. Demonstrations occurred in front of the Phi Kappa Psi house, and vandalization followed, with cinder blocks and bottles being thrown through house windows. Things got so heated and dangerous that several members of the fraternity left the house.
However, cracks soon appeared in the reporting of the story, and ultimately, on December 5, 2014 Rolling Stone issued an apology, citing “discrepancies” in the circumstances of the Story.
On April 5, 2015 the Columbia School of Journalism published a highly critical review of the story and the methodology of Rolling Stone in researching and publishing the story in question.
Now, The University of Virginia chapter of the Phi Kappa Psi fraternity, has announced its intention of filing a lawsuit against Rolling Stone for its “reckless” reporting.
SO IS A LIBEL SUIT COMING?
By UVA? NO. (UVA is a governmental entity, and governmental entities cannot sue for defamation.)
By The University of Virginia chapter of the Phi Kappa Psi fraternity, or individual members? Hmmm, well, maybe, possibly.
The Libel law standard explains why the is answer on UVA is definitive, while the answer on the fraternity and/or its members is, well, lawyerish.
Here is the law in Virginia as it pertains to Libel:
(1) a publication about the plaintiff,
(2) of an actionable statement,
(3) with the requisite intent.
So what is an actionable statement? The courts have defined an “actionable statement” to be a statement that is both false and defamatory , causing damage to the person about whom the statement is made.
The next level of analysis is whether the fraternity is an identifiable plaintiff, or is it simply a (too) large group?
If the group is too large, suit would be unlikely.
Example: I can’t sue if someone tells a lawyer joke, but if the joke identifies me by name, is published, with the intent to defame me….well, maybe I could.
Another rub-truth is a complete defense in a libel action, which raises a fascinating angle: What if the story was factually inaccurate as published, but contained some core truth in terms of what was described. Might a trial reopen the issue of fraternity life on campus? Are there stories that could move the needle closer to truth than it exists now? If sued, one would expect Rolling Stone to explore all defenses available to it. I am not suggesting that there are skeletons that would be unearthed, but clearly this is an issue that Phi Kappa Psi will want to explore when considering suit. Lawsuit discovery can be expansive, and fraternity life at UVA will go back under the microscope if suit is filed.
Finally, plaintiffs in a libel case need to prove damages, which can include lost reputation, loss of income/ employablity, etc. This will be a challenge as well. Fraternity members could argue that they are known on campus as members, and thus have been harmed. But all in all, not an easy mountain to climb.
In the end, these are tough questions for Phi Kappa Psi and their lawyers to consider and evaluate. If a suit is indeed filed, they and the public need to be prepared for more information on this issue to be revealed, either at trial, if it gets that far, or through possible press leaks during discovery.
And in the end, maybe that is not such a bad thing, regardless of where the evidence leads.
Contact us at Favaloro Law Offices if you wish to discuss this issue further, or leave a comment below. We are a full service litigation firm concentrating in medical malpractice and personal injury law.