The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several readers have asked: If the Rolling Stone article describing the alleged gang rape of a UVA student at a Phi Kappa Psi fraternity party is materially false, could the Rolling Stone be successfully sued for libel? This is a good illustration of some important libel law principles, so I thought I'd write about it.
Let me stress up front, though, that my strength is in libel law, not in investigative reporting. I haven't done any independent investigation of the facts; instead, I'll describe how the law would likely apply to the facts as they have been reported, including in this Post article by T. Rees Shapiro. Naturally, if new facts come to light, that would affect the legal analysis, and of course if the charges in the Rolling Stone story prove to be accurate, then there would be no libel claim. Let me also stress 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 – it's just that libel law is the area that I am most equipped to discuss here.
1. Let us begin with who might be able to sue; I will discuss in Part 2 what sort of evidence they would have to point to (for instance, with regard to the magazine's alleged negligence) in order to win.
A. Individually recognizable 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. 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' scumbag from the Rolling Stone article."
The matter might be different as to the 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 whom 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.
B. Defamation of a Group: Can all members of the UVA Phi Kappa Psi chapter, though, 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 seen as 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 "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 since the allegation is just 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. 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), so the damage to them would likely be considerably less than to the Phi Kappa Psi members.
C. Defamation of the fraternity: 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. Defamation of identified university officials or of identifiable allegedly callous friends of Jackie's: I won't talk about this much, because this post is already very long, but I want to flag this for those who are interested. The general issues here would be the usual ones: Are the statements false? Was the Rolling Stone negligent in publishing the statements (or, as to sufficiently high-level government officials, whether it acted with recklessness or knowledge of falsehood)? Are the people sufficiently identifiable? Were the statements such as would defame a person?
And, you must be thinking, even if the statements aren't defamatory, would saying such falsehoods about someone be highly offensive to a reasonable person, which might lead to recovery under the "false light" tort, right? Aha! Got you there, smarty-pants legal eagle: The false light tort isn't recognized in Virginia. (Okay, I hadn't known that either, until I checked just now.)
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 while 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.
Was Rolling Stone negligent? Let's start with Rolling Stone's recently posted note to readers, acknowledging doubt in the story, which states:
Because of the sensitive nature of Jackie's story, we decided to honor her request not to contact the man she claimed orchestrated the attack on her nor any of the men she claimed participated in the attack for fear of retaliation against her. In the months Erdely spent reporting the story, Jackie neither said nor did anything that made Erdely, or Rolling Stone's editors and fact-checkers, question Jackie's credibility. Her friends and rape activists on campus strongly supported Jackie's account. She had spoken of the assault in campus forums. We reached out to both the local branch and the national leadership of the fraternity where Jackie said she was attacked. They responded that they couldn't confirm or deny her story but had concerns about the evidence.
Assuming this is true, I think it was probably negligent for Rolling Stone to publish the accusations without checking at all with the alleged rapists. Negligence is of course a famously vague standard; but it seems to me that publishing a story such as this, without trying to talk to the alleged rapists, would indeed be negligent. To be sure, their denials might just be unverifiable self-interested lies – but they could also be independently verifiable: "Drew," for instance, might have pointed out that he wasn't a Phi Kappa Psi member, the anthropology study group member might have had an alibi, and so on.
That Jackie's friends and campus activists "strongly supported Jackie's account," I think, isn't enough to make it reasonable not to check with the alleged rapists. The friends and campus activists likely knew the facts only based on what Jackie said (and perhaps based on their observation of Jackie that night, which could show that she was injured but not who injured her or how).
At most, their support for Jackie's story shows that Jackie had been making the same statements for some time. Even that's not clear: The Shapiro story in the Post reports that the friends now say that "details of the attack" as recounted by Jackie – such as the number of attackers and the nature of the attack – "have changed over time." Moreover, the Shapiro story reports that one of Jackie's friends who supposedly met her later that night and tried to help her says "he never spoke to a Rolling Stone reporter" and "dispute[s various] details of [the Rolling Stone] article's account." All this makes me wonder how thoroughly the Rolling Stone interviewed even her friends.
But in any event, they weren't witnesses to the alleged rape. The only witnesses were Jackie and the alleged rapists, and Rolling Stone didn't call the alleged rapists.
For much the same reason, I don't think the calls to the local or national fraternity were reasonable substitutes for interviewing the alleged rapists. This is especially so if Rolling Stone asked the fraternities not to talk to the alleged rapists themselves (or didn't give the fraternities enough information with which to identify the alleged rapists), which is what I infer from the magazine's "fear of retaliation" justification – after all, if the feared retaliation prevented the magazine from talking to the alleged rapists directly, it's hard to see why the magazine would have encouraged the fraternity leadership to talk to the alleged rapists.
This leaves the fear of retaliation point, which might in some cases be relevant to the negligence inquiry. Negligence has to do with lack of reasonable conduct given all the circumstances – a sort of cost-benefit analysis – and if asking certain questions risks retaliation against an alleged victim, that might (in some situations) justify not asking those questions.
But I just can't see how this argument would work here. Jackie talked to the reporter expecting the story to be published (though she at some point tried to back out). She knew that the alleged rapists would see the article when it was published.
Why would the risk of retaliation (physical or social) be substantially greater if the alleged rapists were called for their side of the story and thus learned about the article shortly before it was published? Interviewing the alleged rapists would thus have potentially had great benefit when it comes to figuring out the truth, and very little cost; failure to do so thus seems unreasonable.
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 the story, 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.
To be sure, 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 1 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.
3. Finally, let me close with a pragmatic note of caution (similar to the one I noted as to the Lena Dunham controversy).
Right now, the Phi Kappa Psi members from that year have apparently not been broadly and publicly identified. They know that if someone Googles their names, most of them won't come up in a "Controversy about the UVA Gang Rape Fraternity Allegations" story. But if they sue – one former member has reportedly already hired a lawyer – and even if they win, their names likely will come up in such a story, and some people will believe the allegations more than the vindication (or will just remember the allegations more than the vindication).
Would you rather be known to prospective employers, clients, friends, and lovers as "the frat guy in that story I read about the alleged frat gang rape, and apparently he was cleared or there was a settlement or something"? Or would you rather that the story not be part of their perception of you at all? One practical check on meritless libel lawsuits (filed, for instance, to buffalo a poor defendant into submission) is that they draw more attention to the reputation-injuring allegation, and can thus backfire against the plaintiff. But unfortunately that is also a practical check on meritorious libel lawsuits as well.
In any event, if you're still reading, thanks! And if I've erred in any of this, please let me know (preferably with some specific legal or factual details).