The University Phi Kappa Psi chapter announced Monday its intentions to pursue legal action against Rolling Stone Magazine shortly after the Columbia Journalism School released its review of the magazine Sunday.
The review detailed the journalistic failures of writer Sabrina Erdely and the Rolling Stone editing chain in the Nov. 19 publication of an article detailing a brutal gang rape of a University student by a member of Phi Kappa Psi. In the wake of the article and the impact it had on the chapter, Phi Kappa Psi plans to file a lawsuit against the magazine for defamation.
As a defamation case, the lawsuit will seek reparations for the injuries Phi Kappa Psi brothers experienced as a direct result of false statements made against them in the article. While specific details of the lawsuit have yet to be released, legal experts are speculating what it may entail.
One of the initial clarifications to be made is whether the court will rule the fraternity as a public or private figure. University Law Prof. G. Edward White said the latter would prove more advantageous to the fraternity during legal proceedings.
“Given the difficulty of showing out-of-pocket losses in defamation cases, it will be critical in this case whether the fraternity is considered a public figure or a private citizen defamed on a matter of public concern,” White said. “Private citizen plaintiffs defamed on matters of public concern can recover if they can show falsity, loss of reputation and a negligent attitude toward whether the statement was false or not — for example, failing to make a ‘good faith check’ on the accuracy of the allegedly defamatory statements.”
As a private figure, Phi Kappa Psi would need only prove negligence in checking for accuracy on the part of Rolling Stone, while if considered a public figure, the chapter would need to prove “actual malice” on the part of the magazine.
Questions have also been raised as to whether the fraternity brothers should sue collectively as a fraternal organization or as individuals. UCLA Law Prof. Eugene Volokh said he was not in favor of the idea of the brothers suing individually, especially given that courts generally draw the line well below 80 individuals for organizational cases.
“The size of the organization does matter, and it cuts against the organization, but what also matters is the nature of the accusation and how it bears against each member,” Volokh said.
Given the article’s implication that rape was part of a ritualized initiation all brothers had to go through and the lack of evidence linking the brothers in the article to actual brothers in Phi Kappa Psi, Volokh said the lawsuit would be better presented on behalf of the fraternity as a collective since the allegations of the article reflected on all brothers equally.
Though Phi Kappa Psi publicly stated intentions to sue the magazine, it is uncertain whether writer Sabrina Erdely will also face legal action. Volokh said both the magazine and Erdely are potentially culpable and that restricting the lawsuit to one party may pose problems.
“Since both of them seem culpable in different ways, I think sueing just one would invite the defendant to say, ‘This is the other defendant’s fault’ and would make the jury wonder why the other entity or person wasn’t sued,” Volokh said. “[This could] incline the jury maybe to saying, ‘Well, this defendant is only responsible for part of the damages, maybe half.”
Volokh said whether the lawsuit will go to trial by jury is another question entirely. He said he had some reservations as to what the best course of action for Phi Kappa Psi would be, mentioning that plaintiffs often get a better deal through settlement due to the expenses incurred during trial. He said he was doubtful the fraternity would refuse to settle.
White said he thought settlement would be a less sensible option for Phi Kappa Psi and hopes the fraternity will “aggressively pursue” the case to trial, as settlement would provide Rolling Stone the opportunity to avoid having its journalistic practices reexamined in a public forum.
“[The fraternity] is seeking primarily to vindicate its reputation as opposed to recovering a substantial damage settlement,” White said. “Any settlement, in my view, should include a very conspicuous public statement by Rolling Stone that none of the practices alleged to have been part of Phi Psi’s hazing protocols occurred, and that no members of the fraternity were involved in any assault on ‘Jackie.’”
Robert Turner, associate director of the National Security Law Center of the Law School, said Rolling Stone would have interest in stopping the lawsuit at settlement, explaining the magazine’s insurance company would face risks in a trial setting.
Turner said if the lawsuit does find its way to a courtroom, Phi Kappa Psi will need to provide evidence of the article’s harm to the chapter’s reputation, such as a decline in contributions or a loss of membership — and thus decreased revenue from membership fees. While he said no guarantee of legal success can be made for Phi Psi, the conduct of Rolling Stone both in producing and responding to the article will provide a challenge to the magazine’s lawyers.
“Now that [Rolling Stone’s lawyers] have asked top experts to investigate every aspect of the matter and the report is public, and they still have done nothing to hold anyone accountable for all the wrongful things that have been done, I find it difficult to fathom a legal theory by which Phi Psi would lose unless there is some procedural hurdle,” Turner said.
While the lawsuit is on behalf of the fraternity, it ultimately stands for something far greater for the University community, he said.
“Since the University itself cannot sue, in going forward [Phi Kappa Psi] would be vindicating the reputation of our entire community,” Turner said. “I think Phi [Kappa] Psi is in a position to champion not only its own reputation, but that of the University and its living graduates around the world. And I will be greatly surprised if they lack the courage to do what they believe is right."
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