Rolling Stone may come to regret that it chose a university in Virginia to portray as indifferent to rape victims.
Columbia Journalism Review, which published the official autopsy of the magazine’s willful ignorance in pursuing a sensational story about a violent gang rape at a University of Virginia fraternity, has a new feature on the three libel cases filed against Rolling Stone stemming from Jackie Coakley’s discredited allegations.
Though one has been dismissed already – by individual members of the fraternity, Phi Kappa Psi – because they couldn’t show the nameless allegations were “of and concerning them,” the fraternity itself has a surprisingly solid case.
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First Amendment Law Prof. Eugene Volokh of UCLA notes that Sabrina Erdely’s narrative portrays the fraternity itself as a threat to women, based on passages that suggest gang rape is expected of members:
“If someone said, ‘[There’s this] bar, people routinely get raped in this bar.’ Is that libel of the bar? You’re not accusing the bar of rape, to be sure, but you are accusing the bar of being a dangerous place that maybe allows dangerous patrons or dangerous employees. And the likely consequence of that is that the bar will lose business.”
Author Sabrina Erdely also gave the fraternity so little information about the allegation against it that Phi Kappa Psi’s answer may have been to an entirely different (perceived) question:
“That could be either further evidence,” Volokh says. “That could be further defamation. But simply saying bad things happened there, that itself is potentially defamatory.”
Interesting CJR piece on the Rolling Stone lawsuits, w/lots of helpful quotes from Eugene Volokh:https://t.co/f85t1wIWx8
— KC Johnson (@kcjohnson9) July 28, 2016
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Volokh points to Virginia’s relatively low bar for proving harm from defamation:
When it comes to damages, the fraternity’s case will be made easier by the concept of “defamation per se,” which is a feature of Virginia law. This refers to allegations that are considered on their face to be damaging, and relieves plaintiffs from having to establish that the defamatory statements caused them actual harm. The traditional examples are accusing the subject of the story of a serious crime, the slightly antiquated notion of acts of “moral turpitude,” allegations of having a serious or contagious disease, a lack of integrity in one’s profession, and the like.
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Phi Kappa Psi also has a good chance of being judged a “private figure” for purposes of damages:
If the judge agrees, it should have a strong case in proving the lower standard of negligence [by Rolling Stone]. The magazine might argue in response that the fraternity is a public figure—perhaps because it is an important institution on campus and that there is a public benefit to having its actions scrutinized.
Volokh, in an email, writes, “Generally speaking, small- and modest-sized businesses are treated as private figures, despite their role in the community; the same would apply to a fraternity.”
Read the story, which delves further into the legal relevance of the magazine’s refusal to look for witnesses and the much-harder libel suit by UVA Associate Dean of Students Nicole Eramo.
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