Shortly after the Columbia Journalism School issued its postmortem on Rolling Stone's "A Rape on Campus" and the embattled magazine announced it would not be firing anybody for the way the story was handled, the fraternity at the heart of the now-discredited story announced it would seek a remedy in court.
"After 130 days of living under a cloud of suspicion as a result of reckless reporting by Rolling Stone magazine, today [Monday] the Virginia Alpha Chapter of Phi Kappa Psi announced plans to pursue all available legal action against the magazine," the group said in a statement.
There are two ways Phi Kappa Psi could choose to approach a suit. It could either sue Rolling Stone on behalf of its members, or it could bring a suit for damage done to its reputation as an institution. But even as the media world moves on from what it feels is a closed case, any legal challenge would be tremendously thorny, with high hurdles to clear and a tremendous amount of uncertainty.
“It's a complicated issue if it's going to be the fraternity as a plaintiff,” said Lee Berlik, a defamation lawyer who practices both in Virginia and Washington. “It's definitely going to be closely watched.”
A Question of Facts
Columbia’s investigation found both Erdely and her editors at Rolling Stone failed to meet journalistic standards at a number of junctures on the way to her piece’s publication, both by failing to contact the accused and failing to vet many of the accuser’s claims.
Being able to prove neglect is often a huge, important hurdle in cases involving libel and defamation, though at trial, proof would have to come from testimony. While Columbia’s imprimatur was enough for many in the media world to put the matter to bed, the report alone would not be enough for a judge.
“In order to win a defamation lawsuit, you've got to prove everything from the bottom up,” said Jake Denton, a lawyer based in Virginia. Were a case to go to trial, Phi Kappa Psi would have to depose the accuser, the accused and everybody else involved in the allegations all over again.
A Question of Size
The kind of legal action Phi Kappa Psi pursues will likely be influenced by its size. Virginia’s courts have long recognized something called “small group theory,” which allows members of an organization or group to file suit against somebody for defaming them, even if the defamatory statements are not directed at the group’s members by name.
But most plaintiffs who have employed this tactic successfully have been very small, often with no more than a couple dozen members. Phi Kappa Psi, a national fraternity with chapters all over the country, might be too big, though no upper limit exists. “How big, or small, the group must be is not set in stone,” said Dave Heller, deputy director of the Media Law Resource Center. “Libel treatises suggest that groups of 25 or fewer may have a cause of action for group libel, but that's a guideline and not a hard rule.”
A Question of Morals
Should the fraternity’s lawyers decide Phi Kappa Psi is too big, it could use a different strategy: suing for damages to the organization as a whole. “The fraternity should be able to sue in its own right for damage to its reputation as an institution,” Heller said.
Should it go down that road, two things determine the amount of money that can be awarded: the actual amount of money the plaintiff has demonstrably lost as a result of defamatory statements, and the amount of emotional distress the plaintiff has suffered.
In this case, the monetary losses could include anything from a drop in pledge fees to diminished donation on behalf of its members. But emotional distress is often a much bigger part of any suit settlement, and a key issue in any prospective suit will be whether Phi Kappa Psi can suffer emotional damages or whether its moral character can be impugned.
If an individual fraternity member were to bring a case against Erdely or Rolling Stone, that person would almost certainly claim Rolling Stone engaged in something known as defamation per se, which involves falsely accusing people of things that diminish or compromise a person’s moral standing, like falsely accusing someone of having a sexually transmitted disease such as HIV, or of having committed a crime of moral turpitude -- a rape, for example.
Whether an entity like a fraternity can have its moral character impugned will be something that’s debated vociferously by both sides before any trial begins. “That’s something that the lawyers are going to argue about,” Berlik said.
“If it's determined that it's defamation per se, Rolling Stone's going to want to settle,” he added.