Apparently, the Virginia chapter of Phi Kappa Psi has announced its plans to sue Rolling Stone Magazine over its ill-fated article “A Rape on Campus.”  And what may likely turn out to be Phi Kappa Psi’s exhibit A in the libel suit, is the report from the dean of the Columbia School of Journalism, published in Rolling Stone itself.  

In any libel suit, a plaintiff has to prove several elements.  Among other things, the plaintiff has to prove the publication is false.  No matter how derogatory the publication, if it’s true, there’s no libel case.  This is why Tony LaRussa has never sued me for all of the mean things I’ve said about him over the years. In the Rolling Stone case, however, it seems pretty clear that there was plenty of falsity to go around. 

The plaintiff also has to prove “fault” on the part of the publisher.  And this element varies based on the identity of the plaintiff.  A “private figure”  plaintiff needs to show only that the publisher was negligent.  And in the case of a libel suit against a major publication like Rolling Stone, the issue is whether the publication adhered to reasonable professional standards in its reporting and editing.  If the fraternity is considered a private figure, the Columbia report seals the deal on this point.   The report not only concludes Rolling Stone fell short, it provides example after example to illustrate its point. 

On the other hand, if the fraternity is consider a public figure, it will need to prove that Rolling Stone published the piece with “actual malice.”  The U.S. Supreme Court adopted that term in the historic case of New York Times v. Sullivan.  And I’m not sure why they used those words.  Typically malice describes a  person’s attitude to another person.  It’s synonymous with “spite” and “hate.”  But “actual malice” is actually about one’s attitude toward the truth.  Did the publisher know the report was false or entertain serious doubts about its accuracy?  That is a tougher standard, because it is almost subjective.  And people can get it wrong, but not doubt the truth.

But even if the standard turns out to be actual malice (and I think a fraternity at a large University is probably a public figure) the Columbia report is still the plaintiff’s best friend.  It lays out any number of red flags that should have put the reporter and editors on alert about the reliability of “Jackie” – the subject of the story.  Courts would likely view these red flags as circumstantial evidence of actual malice.  And that will make life tough for Rolling Stone.  

But a libel plaintiff also has to prove the publication is “of and concerning” the plaintiff.  And frequently that’s easy.  If Tony LaRussa ever does sue me, there will be no doubt I was writing about him when I used terms like “pompous buffoon” and “spawn of Satan.”  But on other occasions, this element isn’t quite as easy to establish.  For example, courts don’t recognize “collateral damage” in libel suits.  So, for example, a plaintiff’s parents, who may be horrified about what someone says about their son or daughter, can’t bring a libel suit.  And if the libel is about an organization, typically, individual members can’t bring a suit on the theory that they have been tainted by the libel of the organization.

And this may be where a lot of the fighting takes place in Phi Kappa’s suit.  I’m not sure that the fraternity can sue for erroneous statements about its members.  So even if there is no “Drew” (the alleged ringleader of the rape), the false description of him and the events isn’t “of and concerning” the fraternity.  To the extent the article was critical of the fraternity’s reaction to the events, those passages are probably fair game for the lawsuit.  But even though “Jackie’s” story may be false, it’s possible that the reporting on how the fraternity reacted is entirely true.  So, this case may not be such a slam dunk. 

The Columbia report makes for interesting reading.  And if you thought to yourself “how did this happen” before you read the report, you may find yourself asking that question again after you finish it.  I do think the report’s very first paragraph is instructive. It says:

Last July 8, Sabrina Rubin Erdely, a writer for Rolling Stone, telephoned Emily Renda, a rape survivor working on sexual assault issues as a staff member at the University of Virginia. Erdely said she was searching for a single, emblematic college rape case that would show "what it's like to be on campus now … where not only is rape so prevalent but also that there's this pervasive culture of sexual harassment/rape culture," according to Erdely's notes of the conversation.

Erdely’s question reflects a dangerous “everybody knows” attitude.  That is, everybody knows “rape is prevalent on college campuses.”  And everybody knows “there’s this pervasive culture of sexual harassment/rape culture” there.  Because if these are accepted truths, then the reporter is less likely to be skeptical of any given anecdote that validates what everybody knows.  Call me old school, but I like skeptical reporters. 

So if I heard a reporter make a comment like Erdely, I’d challenge her on it.  What information did she personally have that rape is prevalent on college campuses, or that there’s a pervasive culture of sexual harassment?  I’m not suggesting that’s not the case, but I think the fewer assumptions the reporter brings to an assignment, the better.  I think Erdely and her editors were a little too willing to accept the truth of what everybody knows.   And now everybody knows they’re in trouble.