Phi Kappa Psi, the fraternity at the center of false gang rape allegations at the University of Virginia, announced Monday it is planning to sue Rolling Stone over its now-retracted article.
As far as libel cases go, it appears to be a slam dunk. The article treats the allegations of gang-rape as objectively true, and an analysis by Columbia University found glaring mistakes by Rolling Stone staff during the writing and editing of the article which kept them from discovering its many factual errors. A big six or seven-figure payday from Rolling Stone looks like it should be easy to win.
But is that the case? Several lawyers are weighing in, and the case is more complicated than it first appears.
First of all, it will matter a great deal whether Rolling Stone is sued by Phi Kappa Psi as an organization, or by its many members acting as a group of individuals. According to Eugene Volokh, a UCLA law professor who contributes to the Washington Post and has written extensively on a possible libel case, a claim by the institution likely has a better chance of success.
“If the chapter has independent legal existence, whether as a corporation or as an unincorporated association, and if it can show loss of income from potential members or from donors — or other loss stemming from, for instance, punishment by the university — then it could potentially prevail on this,” Volokh wrote Sunday night, prior to the frat’s announcement. In addition to showing a loss of income, the fraternity would only have to show negligence on the part of Rolling Stone. Given the detailed account of Rolling Stone’s journalistic errors given by the Columbia review, that should be rather straightforward, he said.
However, suing as an institution has a substantial shortfall. The frat would only be able to sue to recover money it can directly show was lost thanks to the magazine article, a sum that could total just a few thousand dollars in lost donations or membership dues.
If the fraternity is widely hated but hasn’t had its revenue stream substantially disturbed, the damages it collects from a win could be minimal. In order to collect punitive damages or damages for emotional distress, which are the routes to a big seven-figure payout, Volokh writes, the frat would have to sue as a group of individuals, and there, he says, the case becomes more challenging.
“[If Psi Kappa Psi has 80 or more members], then it might be too large for the defamation-of-a-group theory to apply, especially because the allegation is about nine members,” writes Volokh. Danny Cevallos, a legal expert for CNN, makes a similar point, noting that the frequent turnover of a fraternity’s membership makes it difficult for any member to specifically claim that he was the victim of false statements by Rolling Stone.
“Rolling Stone’s lawyers [will] likely argue that the group is so large and fluid (after all, the membership changes somewhat every year), that even though the fraternity’s reputation is tarnished, the members have suffered no individualized injury,” said Cevallos.
That said, the house members still have a chance, Volokh says. “[T]he Rolling Stone article appears to suggest that this was an initiation ritual for the fraternity’s members, which could be seen as implying that most fraternity members had likewise participated in other gang rapes, or might identify a particular subgroup of fraternity members as likely participants.”
Even if the members were able to successfully sue, collecting a seven-figure payout could be difficult, as Rolling Stone would have to meet the “actual malice” standard of libel in order for the plaintiffs to be eligible for punitive damages.
In order to show “actual malice,” the magazine would have to have been not just negligent, but have shown outright recklessness by publishing claims it either knew to be false or had no reasonable basis to believe were true. Even the Columbia review doesn’t prove that to be the case, as there is no strong evidence anybody at Rolling Stone knew or strongly suspected the allegations of gang rape were untrue.
If evidence emerges, however, that editors were skeptical of the story’s veracity but allowed it to proceed towards publication anyway, that could greatly increase the damages that Rolling Stone would have to pay out.
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