Who sues? Parsing a possible Phi Kappa Psi v. Rolling Stone suit

Three men and UVA graduates from the Phi Kappa Psi fraternity are now suing Rolling Stone. Photo: Martyn Kyle Three men and UVA graduates from the Phi Kappa Psi fraternity are now suing Rolling Stone. Photo: Martyn Kyle

The Columbia Journalism Review’s 13,000-word report dismantling Rolling Stone’s retracted account of a violent gang rape at UVA was less than 24 hours old when the UVA chapter of Phi Kappa Psi, whose unnamed members the magazine’s story accused of a heinous crime, announced via press release it would sue for defamation.

The suits may not stop with the brothers. Tom Clare, an Alexandria-based attorney specializing in high-profile media defamation suits, confirmed Monday he has been retained by UVA Associate Dean of Students Nicole Eramo, who has publicly decried the story’s portrayal of her as an unfeeling administrator more concerned with the school’s reputation than with individual students. Clare would not comment further.

While the fraternity has also been mum on the details of its pending suit—a spokesman has twice declined interviews—it remains the only party in a field of aggrieved locals that has raised a battle cry. So what would a Phi Kappa Psi v. Rolling Stone suit look like? C-VILLE spoke to two local attorneys who know the ins and outs of libel law (defamation takes two forms; if it’s written, it’s libel, and if it’s spoken, it’s slander), and both said the fraternity faces an uphill battle.

Individual members of the frat probably won’t sue, said Charlottesville attorney Lloyd Snook. Rolling Stone’s own failures may have protected the magazine on that front, he said.

For an individual fraternity member to bring a suit, he’d have to show the story specifically defamed him, said Snook. But the alleged rapists in Erdely’s story are anonymous. Less than anonymous, it turns out: As the CJR review highlighted, the magazine never verified the existence of “Drew,” the pseudonymous ringleader of the alleged attack on Jackie, and later reporting indicated he might never have existed. It’s possible, said Snook, that there’s an individual out there who could argue the story gave a description that matched him enough to claim he was effectively named by the reporter and editors.

“But they’ve gone so far in the direction of irresponsible journalism as to be dealing with fiction, unbeknownst to themselves,” said Snook.

And the fraternity can’t sue on behalf of its individual members, said Snook, any more than the City of Charlottesville could bring suit because a few residents felt defamed by the story—the law just doesn’t work that way.

There is the option of suing as an organization or group, but Snook thinks the legal justification for that is flimsy. It would hinge on a quote in the story that merely hints at gang rape being an initiation ritual for inclusion in the frat, and defamation by implication can be hard to prove.

A group libel suit can be very tricky to win for other reasons, said Lee Livingston, a Charlottesville attorney with the firm MichieHamlett. Livingston, who emphasized that he has no direct knowledge of the Rolling Stone case, said a victory would rely on identifying damages and attaching a price tag to those damages.

“You have to ask yourself, what ultimate harm was done to the fraternity?” said Livingston. “Are people still pledging? Did anybody drop out? A jury’s not going to be that sympathetic to the hurt feelings of an organization.”

There’s something else Phi Kappa Psi would need to consider before it sued as an entity, said both lawyers, and that’s any skeletons hanging in the fraternity’s closets.

Details about past acts are generally kept out of civil litigation precisely because the court acknowledges they have the power to sway a jury, Livingston explained.

“In a defamation case, it’s different,” he said. “If there is anything to be discovered, it’s often admissible.”

That’s because plaintiffs are trying to prove that defamatory statements made their reputation go from good to bad, said Snook, “so what their reputation is becomes a matter of proof.” A defense attorney in this case would no doubt counter by trying to show the fraternity’s reputation was bad before the Rolling Stone story, he said. Among the stories that could be dusted off: former student Liz Seccuro’s successful effort to bring charges against William Beebe, the man who admitted to raping her in the Phi Kappa Psi house in 1984 and was sentenced to 18 months in prison in 2007.

“Do you really want to open yourself up to that?” asked Snook.

The question for Phi Kappa Psi, the lawyers agreed, is whether a libel suit against Rolling Stone is worth it.

“The civil law is set up to give you money, and the money is to make up for the harm that was caused,” Livingston said. The court can’t rewrite history, he said, and the jury—which has to arrive at a unanimous decision—can’t issue an injunction against the magazine to block future reports. “If you want to go in to make a statement, that’s not what it’s set up to do.”

And a big payout seems unlikely in this case, he said, in part because Rolling Stone ordered a public airing of its failings. Courts recognize efforts to mitigate damages in cases like this, Livingston said, so while requesting CJR’s detailed report might have upped the magazine’s chances of being found liable, it probably decreased the likelihood of being hit with a huge verdict.

The fact that the fraternity would face high hurdles in a jury trial leads Snook to believe Phi Kappa Psi came out swinging with its statement of intent to sue in the hopes of reaching a quick settlement. Still, juries aren’t always predictable.

“I think it’s just sort of saber rattling at this point,” he said. But “I could be surprised.”

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