The Phi Kappa Psi chapter at the University of Virginia is preparing to sue Rolling Stone magazine for damages arising out of a story the magazine published in November 2014 alleging that fraternity members were involved in a gang rape at the chapter. A review of the story by the Columbia University Graduate School of Journalism found errors in the story. Professor Eugene Volokh of the UCLA School of Law discusses the possible outcomes of such a lawsuit in this report and in his Washington Post article, “Libel law and the Rolling Stone / UVA alleged gang rape story — an update, in light of the Columbia School of Journalism report.”
One possibility is a libel suit by the fraternity chapter alleging negligence and seeking damages. Prof. Volokh says that negligence should be easy to show. But in order to get damages, the chapter would have to show economic injury, such as loss of contributions. That might be hard for the chapter to prove. Punitive damages might be another possibility, but recovering punitive damages would require a showing that the magazine acted recklessly, consciously disregarding a known risk of falsehood.
Individual members of the chapter could also sue for damages for emotional distress. However, since the article doesn’t name any individuals, anyone who sued would have to show that the statements about the fraternity as a whole reflected badly on him. “That’s not an open and shut case under defamation law.” Should any individual seek to recover punitive damages, he would have to show reckless disregard by Rolling Stone in order to recover. Prof. Volokh suggests that showing this “would be an uphill battle.” But, as he also notes, it is hard to say what might be revealed after a lawsuit is filed and discovery commences.
As to the University of Virginia, Prof. Volokh explains that the school would have no claim at all for damages. The U.S. Supreme Court cases of New York Times v. Sullivan and Rosenblatt v. Baer make it plain that an entity of government cannot recover damages for defamation even in the case of an outright lie about the entity.
Discussing Rolling Stone’s possible approaches to defending a lawsuit, Prof. Volokh opines that, as to individual fraternity members, they suffered no damages to their individual reputations, so they have no claim against the magazine. However, that defense is undercut somewhat by the magazine’s allegation that the rape was part of an initiation ritual. As to a suit by the chapter as a whole, the magazine might argue that there isn’t enough evidence of financial loss to justify a finding of damages against the magazine. And the magazine would certainly deny that it was reckless, so that punitive damages should not be allowed.
After discovery begins, attorneys for the plaintiffs will be looking for evidence of some kind that employees at Rolling Stone had thoughts that the story was false but that the magazine decided to publish it anyway. Assuming that such evidence exists, it might be in the form of an email, or it might come out in testimony by an employee who has been subpoenaed to testify in a deposition.
Prof. Volokh suggests that the fraternity would not proceed with litigation if there were a possibility that discovery might turn up evidence that a rape actually occurred.
Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA Law School. He teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. The Legal Broadcast Network is a featured network of the Sequence Media Group.