Does UVA’s Phi Kappa Psi Have a Defamation Case Against Rolling Stone?

The controversial Rolling Stone piece about an alleged gang rape at the University of Virginia, “A Rape on Campus,” has been in the news once again, after the magazine officially retracted the story and published its report on “what went wrong” with the piece.

There’ve been few tangible repercussions so far. Despite the fact that Rolling Stone published a piece of journalism that was the result of leaning on one woman’s debunked testimony, there will be no high-profile firings at this point. Yet the clearest response to the destruction left in the piece’s wake may be from the Virginia Alpha Chapter of Phi Kappa Psi, who announced that they will sue the magazine for libel.

The fraternity issued a statement, explaining that they are “[pursuing] all available legal action against the magazine.” While the exact nature of any legal action is unclear as of yet, there are several possibilities: the fraternity could for libel regarding individual members, as a group, or as an organization. Towards the last possibility, Eugene Volokh wrote in The Washington Post, “if the chapter has independent legal existence… and if it can show loss of income… then it could potentially prevail.”

In order to understand this potential libel case, I talked to Scott Pilutik, a private practice lawyer in New York with a focus on media law. According to Pilutik, “it’s very hard to get a judgement on defamation in the United States. Sometimes places will sue just to be seen as suing. There’s some sort of game in the act of suing, where you’re defending yourself in public. Even if it’s futile, at least it looks like you put up a fight.”

Pilutik explained that since the case is yet to be finalized, many questions remain. First off, who is the plaintiff? There are several possibilities, from the national chapter to individual members. In the case of individual members, “[the members’] main hurdle will be connecting particular passages in the article to injuries they’ve personally suffered. Since they weren’t identified by name, the question could be whether readers were nevertheless able to identify them —while most Rolling Stone readers likely couldn’t, perhaps students on the UVA campus could.”

If it ends up being the organization that sues Rolling Stone, the case is different. Pilutik explained that organizations have a difficult route to prove libel: “Was the fraternity economically impacted? How do they even make that showing?”

One important fact is that Rolling Stone already “vindicated the fraternity in their apology,” Pitulik said. It seems that at the end of the day, “Rolling Stone‘s conduct could be found negligent but probably not reckless. It’s easier to envision a filing of recklessness where Rolling Stone named names of alleged rapists and failed to contact them prior to publication, as opposed to what happened here.”

Scott Pilutik blogs about the law at Reality Based Community.