After Rolling Stone and the Columbia Journalism School released a report retracting the former’s story alleging that members of a UVA fraternity gang-raped a female student, the fraternity named in the story is pursuing legal action against the magazine. But their legal plans, still unspecified, aren’t obvious. In fact, it seems like it could in fact be a little tricky for the fraternity to sue for defamation.
“After 130 days of living under a cloud of suspicion as a result of reckless reporting by Rolling Stone magazine, today the Virginia Alpha Chapter of Phi Kappa Psi announced plans to pursue all available legal action against the magazine,” the fraternity said. The negligence in the story, written by reporter Sabrina Rubin Erdely, was quite serious: The alleged rape victim said it happened at the fraternity on a specific night (September 28, 2012), when no party happened at the fraternity that night. Erdely didn’t provide that allegation to the fraternity when asking for comment, and the fact of whether a fraternity hosted a date function on a particular night would not have been hard to figure out some other way. This seems to meet one of the key criteria for a libel lawsuit by a private figure (such as a fraternity member) — that the defendant was negligent in its reporting of the falsehood.
Erdely’s apology doesn’t mention UVA corporately (just “the UVA community”) or the fraternity members; lots of people have noted that could be part of a legal-defense strategy, a way to avoid admitting more guilt than necessary, rather than just a lack of concern for the frat and its members. Rolling Stone’s apology does mention the fraternity but the entire process the magazine has pursued — commissioning an outside review rather than admitting mistakes on its own, refusing to fire any employees — has also come across to some like a way to protect themselves legally.
But interestingly, it’s not quite clear how exactly the fraternity can sue for damages. UVA could probably demonstrate great harm to its reputation and attendant economic damages, but as this CNN legal analysis points out, it cannot sue because it’s a government entity. CNN suggests that the fraternity has a good case for defamation, but its main problem could be that it’s a group making a case against an article that faulted fictitious members of said group. There aren’t actual fraternity members who were individually defamed here.
The reputation of the Phi Kappa Psi chapter at UVA was obviously damaged, but Eugene Volokh points out that organizations cannot sue for emotional damages, just economic ones, and the economic damage here doesn’t seem huge (perhaps some alumni donations, the trouble of being suspended for a time, weaker rush turnout . . .). One legal possibility is for the fraternity to try suing as a group of individuals, on the grounds that the Rolling Stone story aired false information about a few members of the group and therefore damaged the reputations of all its members. This is certainly bolstered by the fact that Erdely irresponsibly related Jackie’s assertion that the gang rape seemed to be part of some kind of initiation ritual at the fraternity. But that still doesn’t put the group in the perfect spot: The group of individuals involved could be larger than the relevant statutes allow, Volokh suggests.
The fraternity corporately and the members individually certainly seem to have been harmed in some way by Erdely and Rolling Stone, but that doesn’t mean they have a clear way to get compensation as a legal matter.