It’s been a rough year at Rolling Stone Magazine. And that is the biggest understatement I’ve probably ever made in the history of this column. The magazine is fighting off now three separate lawsuits stemming from its investigative report on an alleged gang rape at the Phi Kappa Psi fraternity at the University of Virginia. “Alleged” is the operative word there, because there is good reason to believe the horrific events described in the article never actually happened. Rolling Stone has disclaimed the article and a Columbia Journalism report – commissioned by Rolling Stone – pulled no punches on the many journalistic failings that went into the investigation, writing and editing of the article.
Three U-Va alumni filed suit earlier this year, contending that the article led readers to believe they were among the assailants. Later, Nicole Eramo, a U-Va. Associate dean, filed a lawsuit, contending the article falsely portrayed her as an unsympathetic bureaucrat who was unwilling or unable to support the alleged victim.
Now Phi Kappa Psi has joined the fray. It recently sued the magazine and the reporter for $25 million in damages arising from the article. According to the lawsuit, Phi Kappa Psi has taken a hit in tangible and intangible ways. The fraternity’s reputation surely was affected by the article. The article didn’t describe “Old School” style high jinx. The description of the rape was brutal. And, as the complaint details, that led to more tangible consequences, like vandalism, including broken windows at the Fraternity house and the words “UVA Center for Rape Studies” painted on the building’s exterior.
The Phi Kappa Psi complaint is painstakingly detailed. It’s 94 pages, with over 200 additional pages of exhibits. Included in that detail is a lot of discussion of the Columbia Journalism Report along with a litany of damage the fraternity sustained following the article’s publication. But that may not be enough for Phi Kappa Psi to prevail.
In addition to the obvious elements of a libel suit – publication, falsity, and reputational harm – a plaintiff has to demonstrate that the libel is “of and concerning” the plaintiff. In many cases, that’s a no brainer. But in other cases, not so much. And there’s a good policy reason underlying the requirement. Lots of people are embarrassed by unflattering revelations. Imagine how mortified parents must be when their kids – at any age – are the subject of negative press. Think Temple University feels good about the Bill Cosby revelations? But if anyone affected by defamatory content could sue, the pool of plaintiffs would be close to infinite.
Traditionally, the “of and concerning” line has been drawn very strictly. So if someone libeled me neither my wife, kids, siblings, law firm, law school, church, etc. would have a claim. The libel may affect them, but it’s not “of and concerning” any of them.
And that’s where the fraternity may have a problem here. The key allegations in the story in the story are that a group of INDIVIDUALS committed a brutal crime. And while they were certainly identified as fraternity members, it was not the act of the fraternity itself. The mere fact that the alleged assailants were identified as members may not be sufficient to support a claim by the fraternity – even if it’s false and even if it affected the fraternity’s reputation.
Phi Kappa Psi seems to recognize this potential problem. It makes a point frequently in the complaint to argue that the Rolling Stone allegations are “of and concerning” the fraternity. We’ll see how that works. And Phi Kappa Psi may argue that the article’s discussion of how the fraternity responded to the allegations constitutes libel, separate and apart from the rape itself. And allegations along those lines – that the fraternity was insensitive, unresponsive, or encouraged a dangerous culture – would surely be “of and concerning” to Phi Kappa Psi. And that would be bad news for Rolling Stone.