The Mess That Rolling Stone Left Behind

 

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.

Members have made 19 comments.

  1. Profile photo of Instugator Thatcher

    Eugene Volokh over at this link ( another law professor) defines a public figure more precisely. By his take, the Fraternity is not a public figure.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/05/libel-law-and-the-rolling-stone-uva-alleged-gang-rape-story-an-update-in-light-of-the-columbia-school-of-journalism-report/

    • #1
    • April 6, 2015 at 9:30 am
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  2. Profile photo of John Yoo Contributor

    I agree with Richard on the legal framework. But I wonder whether all of the possible plaintiffs are public figures. As Richard says, a publication must prove an absence of malice to gain First Amendment protections from a defamation suit by a public figure. It seems to me that the members of the fraternity are not public figures and should be able to sue under the easier defamation standard.

    • #2
    • April 6, 2015 at 9:34 am
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  3. Profile photo of Marley's Ghost Member

    Well, this certainly sheds some practical legal perspective to the current situation. It is sad that universities are all too willing to leap at the throat of student organizations and faculty who are, to their mind, representatives of regressive thought and behavior. This arrogance, coupled with their abject fear of liability, have conspired to make universities inhospitable to many liberties as well as personal responsibility.

    Perhaps the best thing that could come of this is a series of articles detailing the shoddy journalistic and editorial practices of Rolling Stone and placing them within the context of a good 15 year run of degrading standards in this field. Thus, with enough public shaming it could help to correct this trend though my impression is that currently journalists feel there are NONE who can stand in judgment of their profession and that alone is a major part of the problem.

    • #3
    • April 6, 2015 at 9:41 am
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  4. Profile photo of Richard Epstein Contributor
    Richard Epstein Post author

    John Yoo:I agree with Richard on the legal framework. But I wonder whether all of the possible plaintiffs are public figures. As Richard says, a publication must prove an absence of malice to gain First Amendment protections from a defamation suit by a public figure. It seems to me that the members of the fraternity are not public figures and should be able to sue under the easier defamation standard.

    Thanks to John for that addendum. The easier standard, which would be negligence, would be applicable to individual plaintiffs. But they have a different problem. Because no one was singled out by name, the case will run afoul of the “of and concerning requirement.” When there are too many people in the class, the statement is treated as one of general public policy. The dividing line is somewhere between, say, 8 and 15, at a guess, which means that the fraternity members would be out of luck even with the lower standard. It was the naming of the Duke Lacrosse players which made that case very different. Not to mention the internal disciplinary procedures and the suspensions that followed by Duke. That case involved a lot more than defamation. For the gory details, see the Wikipedia account. 

    • #4
    • April 6, 2015 at 9:43 am
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  5. Profile photo of Joseph Eagar Member

    Speaking of defamation, can state governments sue individuals (say, a certain Apple executive) over false speech that materially affects their economies?

    • #5
    • April 6, 2015 at 9:47 am
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  6. Profile photo of A-Squared Inactive

    Drudge is reporting that the frat is planning on suing Rolling Stone.

    Update: Here is the story

    The fraternity at the center of a now-discredited Rolling Stone rape article says the story was defamatory and reckless and they are pursuing legal action against the magazine.

    Phi Kappa Psi said Monday in a statement that the article was viewed by millions, led to members being ostracized and there was vandalism of the fraternity house.

    • #6
    • April 6, 2015 at 10:00 am
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  7. Profile photo of Guruforhire Member

    UVA has a different problem. Title IX.

    • #7
    • April 6, 2015 at 10:08 am
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  8. Profile photo of Guruforhire Member

    Eugene Volokh has been writing about the defamation issues since the whole thing started if you are interested.

    • #8
    • April 6, 2015 at 10:10 am
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  9. Profile photo of Tommy De Seno Contributor

    Richard Epstein: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…

    While I agree with the rest of Professor Epstein’s post, as a lawyer who litigates defamation cases, I’ll respectfully disagree with him on the above.

    Defamation cases cost the plaintiff nothing. They are taken on contingency. A legal fee is only generated if the plaintiff prevails.

    They can be less expensive to bring than other injury cases, as the injury portion does not require an expert opinion, as it does with an orthopedic or neurologic injury.

    The cases are no more long or torturous than any other case I file. There is a 300 day discovery period and then you go to trial. That’s not long.

    The defendants are very often insured, so there is no problem getting paid at the resolution of the case.

    • #9
    • April 6, 2015 at 11:20 am
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  10. Profile photo of Arizona Patriot Member

    The cost of litigation may be very much reduced for the fraternity, which is the obvious plaintiff, as I wouldn’t be surprised if a number of capable lawyers would be willing to take the case on a contingent basis, for a share of any recovery and the free advertising that they would gain from handling such a high-profile case.

    Does anyone know the legal status of the particular fraternity involved? If it is a corporation, it would almost certainly be able to sue in its own right. If not, it might technically qualify as a common-law partnership under the applicable law (presumably Virginia law). This “joint venture” or “joint enterprise” approach treats the fraternity as a partnership, and has been used to hold individual fraternity members liable for the actions of non-corporate fraternities, at least in my home state. Depending on state law, the partnership itself, or one or more of its general partners, might have the right to sue on the partnership’s behalf.

    • #10
    • April 6, 2015 at 11:58 am
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  11. Profile photo of Arizona Patriot Member

    Tommy De Seno:The cases are no more long or torturous than any other case I file. There is a 300 day discovery period and then you go to trial. That’s not long.

    I’ll add two practical caveats: (1) the time necessary to get to trial can vary widely by jurisdiction, and (2) it’s not clear whether this would be a federal or state court case, and this might vary depending on the jurisdiction in which the plaintiff chooses to file suit and the parties named as defendants.

    • #11
    • April 6, 2015 at 12:04 pm
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  12. Profile photo of gts109 Member

    Seems like there’d be complete diversity b/t the frat and Rolling Stone (NY HQ, unlikely to be a VA corp) and Erdely (who lives in PA, I think). I’m guessing it’d be removed to federal court by Rolling Stone if it were filed in state court in Virginia.

    • #12
    • April 6, 2015 at 1:54 pm
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  13. Profile photo of James Gawron Thatcher

    Richard,

    I think it is high time that institutions started to ask the question about malice of intent. I think the knowledge of what such a story would bring in acclaim and outright profit for the perpetrator is obvious to those who have been paying attention to the marketplace of victimization for the past 30 years. That this story would severely damage the University, the Fraternity, and the individual members of the Fraternity would have been also crystal clear to the perpetrator. It is time to stop the naive hopefulness that this was just a mistake. This was no mistake. I think that a truly world class litigator could win such a case. I think it is time that institutions consider taking on just such a fight to punish those that viciously do damage in this fashion.

    We are in an ethical free fall. When Holder the Attorney General of the United States can conduct extended witch hunts in microscopic situations for which he knows full well the facts don’t merit a second look, then demagoguery becomes the law of the land.

    Regards,

    Jim

    • #13
    • April 6, 2015 at 2:13 pm
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  14. Profile photo of Arizona Patriot Member

    gts109:Seems like there’d be complete diversity b/t the frat and Rolling Stone (NY HQ, unlikely to be a VA corp) and Erdely (who lives in PA, I think). I’m guessing it’d be removed to federal court by Rolling Stone if it were filed in state court in Virginia.

    Well, the plaintiff could defeat diversity in a Virginia state court filing by joining a Virginia defendant, such as the accuser, if she still lives in Virginia. Alternatively, the plaintiff could sue in a different state court (such as NY or PA) in which one of the defendants “resides” (including corporate “residence,” which includes both state of incorporation and principal place of business), and this prevents removal.

    There may be a number of alternative proper jurisdictions, so I’d want to research the law in each before advising the plaintiff re where to file.

    • #14
    • April 6, 2015 at 2:14 pm
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  15. Profile photo of gts109 Member

    Yes, they could file suit in other places, or join a diversity defeating defendant. I wasn’t foreclosing those possibilities. But if the VA frat files suit in VA state court, and doesn’t sue the penniless Jackie (is she even from VA???), it may well be removed by the target, out-of-state defendants.

    And, yes, the plaintiff’s lawyers should research what each state’s law says before filing! I’ve gotta think Virginia law is going to apply, regardless of forum, though.

    • #15
    • April 6, 2015 at 2:25 pm
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  16. Profile photo of James Gawron Thatcher

    Richard,

    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.”

    Yes, technically, they have covered themselves but to any average juror they are as guilty as sin. There is the story in black & white. A full lurid claim of a horrific crime. The crime never took place and is a total fabrication. They never vetted such a story?!!? I don’t think so. If they had made the most minimal effort to check it out they could crawl behind that but they have already admitted that they didn’t. They aren’t exactly a junior high school newspaper. I think a jury could hammer them quite nicely for this load of c#@p. You hire a patient proficient super-lawyer on this and they’ll take Rolling Stone downtown.

    Regards,

    Jim

    • #16
    • April 6, 2015 at 2:43 pm
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  17. Profile photo of Johnny Dubya Member

    My prediction: The fraternity will, through settlement or trial, end up with a really nicely-appointed house and a tidy sum for a scholarship fund.

    • #17
    • April 6, 2015 at 4:37 pm
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  18. Profile photo of Instugator Thatcher

    Please don’t forget – from Erdeys OWN NOTEBOOK – she was shopping for a story, involving a Fraternity, that highlighted a Frat’s desire to perpetuate a rape as a rite of initiation.

    She went shopping for a story that fit her narrative, found one, and Rolling Stone published it without adequate oversight. That is malice aforethought – from the writer herself.

    • #18
    • April 6, 2015 at 9:52 pm
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  19. Profile photo of No Caesar Thatcher

    Two observations from a layman:

    1) Rolling Stone didn’t fire anybody so they can mitigate the risk from one of the individuals (2 editors and 1 writer) turning on them. Keep everyone in camp, circle the wagons, and stick to their story. However, that sends the message that the magazine sees no problem in their behavior. It seems to this layman that this is another arrow in the quiver for the argument of malice.

    2) UVA is much-loved in Virginia, and many powerful people in Richmond and DC (of all political stripes) have a personal connection with it. That is why the Washington Post led the charge in bringing the truth to light. The jury pool that would likely hear such a case — be it Federal or State court — would be inclined to be favorable to any plaintiff. Those NOVA suburban moms whose sons are in fraternities are going to be like grizzly bears coming out of hibernation. Alumni in general are really angry about this besmirching. The chat boards, etc. are full of lots of liberal-leaning alumni who are out for blood for what their school was put through.

    If ever there was an environment where grounds for defamation, etc. could bear new fruit, this is it.

    • #19
    • April 7, 2015 at 10:16 am
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