By now, everyone knows the basics of “A Rape On Campus,” the Rolling Stone report (no longer on the Rolling Stone website) in which journalist Sabrina Rubin Erdely tracked down a woman named “Jackie” who provided her with lurid details of a gang rape that supposedly took place at the University of Virginia’s Phi Kappa Psi fraternity house. The story’s gory details made the frat and its members look like brutal rapists and total scoundrels. The problem is that the story was false and duly retracted with abject apologies from Rolling Stone yesterday after an independent report by Columbia Journalism School Dean Steve Coll and his team found that the editorial processes had failed at every level to heed the warning signs that something was deeply wrong with the story. There is no need to repeat those well-documented failings here, but suffice to say that the protagonist bobbed and weaved at every critical moment. Notwithstanding all those red flags, Rolling Stone decided to publish her story without verifying its key facts, creating havoc for the fraternity and the university. The question Peter Robinson asks is does the “fraternity have any legal recourse against either Rolling Stone or the university?”
There is a lot packed into this question. The first question is if anyone wants to sue, even if they can make out the legal case. The general rule is that the long and torturous road to success in a defamation case is not worth the cost. The proceedings are brutal on witnesses. They cost a fortune to litigate. And worst of all, they bring the entire matter once again into the public eye, where the new round of publicity is bad for the fraternity and the university no matter what the outcome of the case.
But what about the legal soundness of the suit? Here Peter does not necessarily have his parties in proper alignment. The fraternity and its individual members have gone through hell. The fraternity can obviously bring suit, and so might some of its individual members if they suffered special harm in the process. But the lawsuit is tricky if those individuals are not identified as wrongdoers in the story and are instead hurt solely because they are representatives of the fraternity.
The University of Virginia is as much a plaintiff as a defendant. After all, it did not concoct the story and it was dragged through the mud along with several of its key administrators who worked on student affairs and were mentioned in the piece. Much of what was said about them apparently did not happen. Yet at the same time, it may well be that some of the statements the university made about the fraternity were not fully vetted, so it could be a defendant as well for its wrongful statements. That is not all that promising a legal route, however, given that the university was responding to a crisis not of its own making.
When we come to the actual legal issues, it seems clear that the university and the fraternity should both count as “public figures,” which means that they can only sue for “actual malice” or for Rolling Stone publishing statements knowing that they were false or with reckless disregard of the truth. Mere negligence will not cut it. It is worth noting that the Rolling Stone lawyers surely vetted the magazine’s apology, because all the building blocks needed for a defamation suit are missing from its account. The key words would be “actual malice,” “reckless disregard,” and “gross negligence.” But none of those terms appear in its lengthy mea culpa. Instead, Rolling Stone admits its own negligence (while carefully avoiding the use of that word) in order to defend itself against the more serious charge of its own “absolute malice.” That is certainly a credible position to take, but the result is hardly crystal clear. Once you have knowledge that your key protagonist has hedged on some information, concealed key sources, and had funny memory lapses, continuing to proceed with the story could constitute reckless disregard—or at least a jury might think so. There is no way that the fraternity or the university could win without a jury trial.
Lining up all the evidence is a huge amount of work, and my guess is that Rolling Stone will have some luck in arguing that its voluntary retraction should make a difference. It certainly does with respect to punitive damagers. It is less clear with respect to actual damages (assuming that they could be calculated), the determination of which is always a nightmarish task if there’s no particular transaction that was canceled in virtue of the revelations. General damages tied to the severity of the false statements and the visibility of the plaintiff are possible, but often viewed by courts with suspicion in these circumstances. If one looks at the history of defamation cases brought by public figures in the last generation, they don’t do well. They do so badly, in fact, that for nearly 25 years they have hardly been brought before the courts. Remember, this case is very different from the Duke lacrosse case, where the use of the names of the individual defendants set up lawsuits that settled before trial, evidently for substantial sums. And that case involved prosecutorial conduct, in addition to rather shocking behavior by Duke in its attack on the players.
In this case, without the individual plaintiffs and without an obvious villain, I would advise (free of charge) both the fraternity and the university not to pursue defamation cases. Take advantage of the information and use it when appropriate. It could well be relevant to any number of administrative proceedings of which I have no knowledge. By all means, try to slow down the Justice Department’s Office of Civil Rights, which is much too proactive on these matters anyhow, as the protest letter of many members of the Harvard Law School faculty points out.
Justice will never be done here. It is rarely done in defamation cases. The good news is that the Rolling Stone story is officially dead. The bad news is that its toxic effects linger on. A defamation suit provides little comfort.