Law and logic limit the possibilities for potential litigants
by Carole McNall
I hope they get sued by everyone … and they lose big.
I’ve heard that reaction often since the Easter Sunday release of a report sharply critical of Rolling Stone’s article “A Rape on Campus.” I’m a journalism professor, lawyer and former newspaper reporter, so I’ve been following the story with deep interest.
My journalism professor and former reporter side agree with the “sue ’em” crowd. But my lawyer side cautions defamation law could pose a barrier to any win, big or small, for those suing Rolling Stone or the article’s author, Sabrina Rubin Erdely.
Erdely’s article claimed to tell the story of Jackie, a University of Virginia student allegedly raped at a fraternity party.
But almost immediately after the story was published last November, observers questioned its accuracy. By December, Rolling Stone had added to the online story a lengthy editor’s note disavowing much of the Jackie narrative. The magazine also asked Steve Coll, dean of the Columbia University Graduate School of Journalism, to review the process that led to publication. The resulting report, almost 13,000 words, presents a litany of basic journalism procedures that were ignored by the magazine, its editors and writer. Those start with leaning almost completely on a single source for Jackie’s story and failing to verify her information with others.
The Coll report provides lots of ammunition for a defamation lawsuit. Indeed, Phi Kappa Psi, the fraternity, has announced plans to sue Rolling Stone and possibly Erdely. And at first look, it appears prospective plaintiffs could have a strong case.
In general, someone suing for defamation (libel or slander) must prove four things. Three of them should be easy for a plaintiff suing Rolling Stone; the fourth poses a problem.
1. Defamation: False statements that damage a plaintiff’s reputation. The statements have to be false and they have to appear to be fact, not opinion. Virginia defamation attorney Jeremiah Denton III notes on his website that a Virginia plaintiff does need exact wording of the allegedly defamatory statements. That should not be difficult here.
2. Publication: For defamation actions, “publication” simply means repeated to at least one third party. Again, not a problem: Rolling Stone’s circulation as of June 2014 was 1.47 million.
3. Fault: The fault requirement varies, depending on whether the plaintiff is a public or a private figure. A defamation plaintiff would prefer to be considered private, since that simply requires proof of negligence by the publisher of the statements. The Digital Media Law Project notes that Virginia courts require considerable public activity before they rule a plaintiff a public figure. Here, I suspect the courts would see Phi Kappa Psi as a private organization.
Some states require proof of actual monetary loss in a defamation suit. Denton’s website says Virginia is not one of those states. That should mean it will be enough for Phi Kappa Psi to prove they were damaged in the eyes of the public. Again, that should not be a problem.
4. Identification: But this may be a problem. Defamation law aims to provide a remedy to a plaintiff who can be identified. Put the subject of the statements in too large a group and courts reject the idea that they can be identified as a subject. In a group of five (for example, the female faculty members in my department), a plaintiff can argue she could be identified individually. Stretch that group to cover all the female faculty members at my university and you may have too many to identify (and defame) any individual.
So who can sue? Two parties drop off the potential plaintiff list immediately. Because government bodies cannot sue (see the Supreme Court in New York Times Co. v. Sullivan and later decisions), the University of Virginia, a public college, can’t sue. Even if it can prove damages, it has no legal remedy.
Also off the potential-plaintiff list: Jackie’s alleged date on the night of the party. The story casts him as the person who led her into the room where she was raped. But the story never names him — he is simply identified as a man “whom we’ll call Drew.” Erdely offers some hints — she says he was a junior, a lifeguard, a Phi Kappa Psi member and a member of a small discussion group for one of her classes. But Phi Kappa Psi spokesmen say they have no member who is a lifeguard, and none of those reporting the story has indicated finding “Drew” in that discussion group.
The most likely plaintiff: Phi Kappa Psi. The fraternity’s UVA website lists its current membership as 82. That’s almost certainly too large for the fraternity to sue as a group. It may, however, be able to sue as an organization. UCLA law professor Eugene Volokh, writing in The Washington Post, notes a group with a recognized legal identity can sue for defamation that damages the group’s reputation. At this writing, no lawsuit has yet been filed, so it’s not clear which approach the fraternity might be planning to take.
Volokh quotes some UVA officials as saying Rolling Stone misquoted them. Even though the university itself cannot sue, those individuals might be able to do so.
My nominees as possible plaintiffs: The Rolling Stone story claims Jackie was raped by seven men who wanted to become members of Phi Kappa Psi while two others watched. I’ve not found information on how big an average pledge group might be for that fraternity at that campus. But if any given pledge group is not much larger than seven, those men might be able to claim they were identifiable and move forward with a suit.
The story also identifies by pseudonyms three friends who allegedly met with Jackie after she left the fraternity house. At least one of those individuals has been interviewed by several reporters — although Erdely never spoke to him. He denies all the statements she attributes to him and says he would have told her that when she was writing the story had she asked.
The statements attributed to the three friends seemed to describe people more worried about their social lives or the university’s reputation than about the attack on Jackie. Because other reporters found the three, they are apparently reasonably identifiable. An attorney could argue that they had suffered damages, especially because Virginia does not require proof of monetary damages.
But with the pledges and the friends, remember that someone suing for defamation has to hire his or her own attorney. The fraternity may be the only potential plaintiff with the resources for that effort.
Will Rolling Stone get sued by “everyone?” No, because, as mentioned, some of those affected are legally barred from suit. Will they lose big? Perhaps. Will Rolling Stone serve as an example for the next writer tempted to chase the story she thinks she has rather than the one that exists? That remains an open question.
Carole McNall is an assistant professor of journalism and mass communication at St. Bonaventure University and is licensed to practice law in the State of New York.