The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A just-released Columbia School of Journalism report details the errors in the Rolling Stone story describing an alleged gang rape. Can the original story lead to a libel lawsuit? I blogged about this question in December, and lots of people seemed interested, so I thought I'd update the analysis in light of the report. My basic conclusions are:
- The Columbia report provides powerful evidence that Rolling Stone was negligent in its investigation—and negligence is all that's required for at least some kinds of damages to be recovered in some of the possible libel claims.
- It's possible that the fraternity and perhaps its members might be able to sue, but the matter is complicated.
- UVA itself definitely can't sue, because government agencies can't sue for libel.
Let me begin with who can or can't sue, and then turn in part two to what they'd have to show. (If you read the December posts, you should move to part two, as part one is largely borrowed from those earlier posts.)
1. Possible plaintiffs:
A. Individually recognizable alleged rapists: Naturally, if a story sufficiently identifies a real person, and falsely accuses him of rape (whether he participates through physical conduct or by egging on the rapists), he can sue. But "Drew," the alleged victim's date, and someone who allegedly lured her to the place where she was raped, isn't identified by name— the story labels him as someone "whom we'll call Drew."
He is identified as a junior, a Phi Kappa Psi member and a swimming pool lifeguard who worked with Jackie, the alleged victim. But that seems inadequate to point to anyone in particular, especially if it is true that—as the fraternity asserts—no Phi Kappa Psi member actually worked as a lifeguard. There just doesn't seem to be a person to whom someone could reasonably (but mistakenly) point and say, "That's probably that 'Drew' from the Rolling Stone article."
The matter might be different as to the alleged rapist whom Jackie says she recognized as having "attended her tiny anthropology discussion group." If a Phi Kappa Psi member was indeed in that group, then he might be so identified by fellow group members, and by anyone they tell about this. (I think reasonable readers could infer from the article that all or most of the alleged rapists were claimed to be Phi Kappa Psi members.)
I haven't seen, though, any published reports confirming whether there was a Phi Kappa Psi member in that group. Likewise, if there was only one man in the discussion group, then he, too, could be reasonably perceived as the alleged rapist by readers who know he was in the group, but who don't know what fraternity he was in—for instance, other discussion group members, or other classmates who had seen the discussion group together and remembered who was in it.
The story also says that the rapists "called each other nicknames like Armpit and Blanket." If those are actual nicknames of Phi Kappa Psi members, then they could have a case, on the theory that they were defamed in the eyes of those who knew the nicknames. Identifying an alleged criminal by his nickname can be libel, so long as some people would recognize the person by that nickname. But if these names are fictionalized (the "like" is somewhat ambiguous here), then again no one would be identifiable enough to qualify as a potential plaintiff under this theory. And I haven't heard any indication since the November story came out that any particular fraternity members (or anthropology students) have been viewed by classmates or by others as the people labeled in Jackie's account.
B. The UVA Phi Kappa Psi fraternity members as a group: Can all members of the UVA Phi Kappa Psi chapter sue on the theory that the statement injures their reputations? There's actually a considerable body of law on such questions. Restatement (Second) of Torts § 564A is generally considered a fair and influential summary of the law, and here are some key excerpts (slightly rearranged):
One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,
(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or
(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. . . .
[Comments:] When the group or class defamed is sufficiently small, the words may reasonably be understood to have personal reference and application to any member of it, so that he is defamed as an individual. In this case he can recover for defamation. Thus the statement "That jury was bribed" may reasonably be understood to mean that each of the twelve jurymen has accepted a bribe. It is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually have involved numbers of 25 or fewer. [Some cases do allow recovery as to larger groups, perhaps up to 70 or so, though these are unusual. -EV] …
Even when the statement made does not purport to include all of the small group or class but only some of them, as in the case of "Some of A's children are thieves," it is still possible for each member of the group to be defamed by the suspicion attached to him by the accusation. In general, there can be recovery only if a high degree of suspicion is indicated by the particular statement. Thus the assertion that one man out of a group of 25 has stolen an automobile may not sufficiently defame any member of the group, while the statement that all but one of a group of 25 are thieves may cast a reflection upon each of them. . . .
Illustration 2. A newspaper publishes the statement that the officials of a labor organization are engaged in subversive activities. There are 162 officials. Neither the entire group nor any one of them can recover for defamation. . . .
Illustration 3. A newspaper publishes a statement that the officers of a corporation have embezzled its funds. There are only four officers. Each of them can be found to be defamed. . . .
Illustration 4. A magazine publishes the statement that most of the sales staff of a department store are homosexuals. The store employs 25 salesmen. It can be found that each of them is defamed. [Today, a charge of homosexuality may not be seen as defamatory, the way it was when the Restatement (Second) was published, but that's a separate issue. -EV]
I don't know how large Phi Kappa Psi is, but as I understand it there are 16,000 undergrads at UVA, of whom about 30 percent are in fraternities or sororities, and there are about 30 fraternities. Assuming that half of the Greek system members are men, there would be about 80 members per fraternity.
If that's about the size of Phi Kappa Psi, then it might be too large for the defamation-of-a-group theory to apply, especially because the allegation is about nine members (again, assuming the article is read as suggesting that all or most of the rapists were fraternity members). But on the other hand, the 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. And that could indeed "cast a reflection upon each [fraternity member]" (to quote the Restatement) and "defame[ each] by the suspicion attached to him by the accusation."
Careful readers will have noticed that this defamation-of-a-group theory could apply much more firmly to the men in Jackie's "tiny anthropology discussion group," if there were only two or three: A man's being identified as being 50 percent or even 33 percent likely to be a rapist certainly "cast[s] a reflection" and "defame[s] by the suspicion attached to him by the accusation." Those men, though, would probably be identifiable as such only to a small number of people (unless they had somehow been publicly identified following the publication of the story, and I've heard no evidence of that). The damage to them probably would thus be considerably less than to the Phi Kappa Psi members.
C. The fraternity as an organization: Corporations and unincorporated associations that have recognized legal identities (such as unions, partnerships and the like) can also sue for defamation that causes injury to their organizational reputation, independently of whether any member was defamed. For instance, if someone falsely accuses a corporation of defrauding customers, this might hurt the corporation's reputation even apart from injury to any particular employee's reputation. And this is true even for nonprofit corporations, see, e.g., Lega Siciliana Social Club, Inc. v. St. Germain (Conn. Ct. App. 2003); Gorman v. Swaggart (La. Ct. App. 1988) (yes, that's the Swaggart you're thinking of). As the Restatement (Second) of Torts § 561(b) puts it,
One who publishes defamatory matter concerning a corporation is subject to liability to it . . . if, although not for profit, it depends upon financial support from the public, and the matter tends to interfere with its activities by prejudicing it in public estimation.
The allegations of such group misconduct at the fraternity house certainly do harm the fraternity as an organization "in public estimation." Therefore, 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. And the central fraternity could also sue for similar losses, on the theory that its reputation has been tarnished both at UVA and elsewhere.
On the other hand, the organizations can't recover damages for the emotional distress flowing from the injury to their reputations (since they lack emotions). Individuals can recover such emotional distress damage, even above and beyond actual lost income.
D. Identified university officials or identifiable allegedly callous friends of Jackie's: I won't talk about this much, because this post is already very long. But I should note that one university official has said that his public statements were mischaracterized in the Rolling Stone article, and another university official has said that Rolling Stone "made numerous false statements and misleading implications" about how the official acted "as the Chair of University of Virginia's Sexual Misconduct Board." If those statements are indeed false, then they may be seen as defamatory and thus potentially libelous. (In many states, even nondefamatory falsehoods about a person can be actionable under the "false light" tort if they would be highly offensive to a reasonable person; but the false light tort isn't recognized in Virginia.)
E. The university itself: The university cannot sue. New York Times Co. v. Sullivan (1964) famously held that government officials can prevail in defamation lawsuits only if they can show that the defendant knew the statement was false, or was reckless about the possibility of falsehood—but it also, less famously, held that government entities can't sue for defamation, period, regardless of the defendant's mental state:
For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.
"[P]rosecutions for libel on government," the court repeated in Rosenblatt v. Baer (1966)—in a context that covered lawsuits and not just criminal prosecutions—are something that "the Constitution does not tolerate in any form." And the Virginia Supreme Court echoed this in Dean v. Dearing (Va. 2002). So even if someone deliberately lies about the University of Virginia, and this lie damages the university's reputation, the university can't win a libel lawsuit against the person.
Now if someone says about a private university that it doesn't adequately protect its students (because it doesn't adequately investigate alleged rapes and thus doesn't do enough to prevent future rapes), that might be a libel of the university. Compare Mzamane v. Winfrey (E.D. Pa. 2010) (that's the Winfrey), which holds that an allegation that a junior high school principal doesn't do enough to investigate alleged abuse of students could be defamatory; I think a similar allegation about a university official could be defamatory of that official, and of the university more broadly, in the right circumstances.
Likewise, even apart from a claim of culpable lack of investigation, if someone says there was a serious crime against a patron of a particular establishment—whether a bar, a hotel or a university—and the speaker knows the statement is false or recklessly disregards the risk of falsehood, that might be the tort of "injurious falsehood." (This could also be labeled a form of the "trade libel" tort, but as to quality of services and not quality of goods.) The Restatement (Second) of Torts § 623A provides that,
One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if
(a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
(b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.
Under the right circumstances, reporting that there was a particular rape at or near a private university, knowing the statement was false or reckless about the possibility of falsehood, might thus be actionable on this theory as well.
But none of this matters here, because the University of Virginia is a public university, and like other public entities—police departments, government-run ski resorts, cities, counties, states or the federal government itself—it cannot take advantage of the libel claims that are available to nongovernmental organizations.
2. Say that a fraternity member, all fraternity members, or the fraternity itself can sue, and say that the statements are false and defamatory. What more do the plaintiffs need to show to prevail?
A. The fraternity members are almost certainly "private figures," and I suspect that the local chapter and even the national fraternity likely would be, too. When an organization is a public figure is an unsettled question. Believe it or not, Computer Aid, Inc. v. Hewlett-Packard Co. (E.D. Pa. 1999) concluded that Hewlett-Packard isn't a public figure, and although I think that's wrong, public figure status isn't as broadly imposed on corporations as one might think.
In particular, a precedent in the federal Fourth Circuit (which contains Virginia), Blue Ridge Bank v. Veribanc, Inc. (4th Cir. 1989) concludes that the bank wasn't a public figure. This suggests that a fraternity chapter and even the national fraternity probably wouldn't be one, either. And, again, the individual members wouldn't be public figures, unless there's something about them that I don't know.
B. Private figures can recover for "actual harm inflicted by defamatory falsehood"—including "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering"—if they can show that the defendant was negligent in its investigation.
Here, the report seems quite damning. It documents what strike me as major departures from reasonable investigative journalism practices; read the report or the excerpts I posted, and I think you'll be persuaded.
C. Private figures can also recover "presumed damages"—damages aimed at compensating for likely harm to reputation even if no specific financial loss can be proved—and punitive damages if the defendant published statements knowing that they were false, or with reckless disregard of the risk of falsehood. (This is often called the "actual malice" standard, though that is a legal term of art that has little to do with "actual malice" in the plain English sense of the word; I'll instead call this the "recklessness" standard, since in this case the allegation would be that Rolling Stone was reckless about the risk of falsehood, not that it deliberately lied.) Even public figures can recover actual damages, presumed damages, and punitive damages if they can show this recklessness as to falsehood. The difference between private and public figures here is just that private figures can recover actual damages based on just a showing of negligence.
This recklessness standard requires proof that the defendant was subjectively aware of a strong likelihood of falsehood; negligent (and even grossly negligent) failure to investigate, by itself, doesn't prove recklessness. But when reporters and editors had reason to think that a charge is "highly improbable," and were "aware that [someone] was a key witness and that they failed to make any effort to interview [him]," that could be evidence that "the [publication's] inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the accuser's] charges." (I quote here from Harte-Hanks Communications Inc. v. Connaughton (1989); see also Curtis Publishing Co. v. Butts (1967).)
Moreover, while different people might dispute whether the accusations here were indeed "highly improbable," a plaintiff could subpoena the editors and ask whether they themselves consciously entertained doubts about the story. Herbert v. Lando (1979) confirms that such discovery is potentially available.
If the discovery reveals that some editors did think this story was highly improbable, or otherwise had doubts about it, that conscious doubt coupled with the "fail[ure] to make any effort to interview" "key witness[es]" could be sufficient evidence of "a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the accuser's] charges." And that in turn would satisfy the recklessness standard.
This recklessness standard is much harder to meet than the negligence standard. (That's why it's important that the plaintiffs probably could collect substantial damages even under the negligence standard, assuming the hurdles in part one above are passed.) And it's impossible to tell whether the recklessness standard can be met without knowing more about the currently confidential details of the Rolling Stone investigation. But, unlike in many libel cases, I do think that it's conceivable that this standard could be met here.
* * *
Let me stress again, though, that the most interesting and important issues raised by this controversy—whether about rape, about the proper procedures for considering allegations of rape, or about journalistic ethics—are not issues related to libel law. But libel law is the area that I am most equipped to discuss here.