The New Year might see two high-profile defamation suits. “Barry,” “Oberlin’s resident Republican” from a few years ago, is preparing to sue Lena Dunham for implying in her recently published memoir that he raped her. Members of the University of Virginia chapter of Phi Kappa Psi seem to be laying the groundwork for suing Rolling Stone for publishing unsubstantiated allegations of a brutal gang rape by fraternity members.
The Dunham fact pattern is straightforward: girl accuses easily identifiable boy of rape. Boy can sue girl for defamation. Boy might also sue Penguin Random House, the publisher of the book, “Not That Kind of Girl.”
The Rolling Stone fact pattern has more parts. The members of the fraternity Phi Kappa Psi, the fraternity itself, and possibly the North American Interfraternity Conference, have viable claims against Rolling Stone and their freelance writer, Sabrina Rubin Erdely, and “Jackie,” Rolling Stone’s source for the story. In the past few days, Jackie has reportedly named the individual instigator of the attack, who now has a potential defamation claim against her, although suits against Jackie are less likely for reasons I will discuss later. (The University of Virginia is a public entity and therefore cannot sue for defamation, although the various Greek houses there might pursue constitutional claims against the university for its response to the allegations, but that is another matter.)
The potential defamation cases involving Rolling Stone and Dunham have two elements in common that I have not seen other commentary consider yet. One, since both defaming statements are about rape, the accused parties can argue defamation per se, in which damages are assumed. Two, given Dunham’s notoriety on the web and the fact that the Rolling Stone article went viral, the defamed men have little to lose and might see suing as a point of honor for themselves and for other, less privileged, men falsely accused of rape in a growing trend. (In fact, as I finished this article, news of another defamation suit broke: Lady Gaga’s lawyer apparently misidentified on Twitter a rapist Gaga refused to name in an interview with Howard Stern.)
For the purposes of this article, I will assume that Dunham’s and Rolling Stone’s stories are true except as to the currently accused. Certainly, as the stories finally face investigation post-publication, they are unraveling, hence the discussion about defamation at all. One can’t be legally defamed by the truth. But to give rise to defamation claims, the stories only need to be false as to the identifiable parties, that is, the members of Phi Psi, the fraternity itself, and the individuals Jackie has named. In the Dunham story, that would include Barry the Oberlin Republican. I will also refer to an influential summary of U.S. common law regarding personal injuries, the “Restatement (Second) of Torts.” Restatements are common-law summaries for lawyers. Individual jurisdictions may vary in the specifics, but a restatement provides the textbook example of an action.
Here’s a Summary of Legal Standards for Defamation
There are two types of defamation, slander and libel, or spoken, written, or visual statements. Before the advent of modern communication, spoken and written statements had different implications, but as technology has sped up and integrated communication, slander and libel have largely merged into one tort of defamation. Here’s what the “Restatement” says about defamation.
First, truth is a defense to defamation. Critics have correctly noted that the stories could be compilations of truths or confusions of misremembered details. If the stories aren’t true as written, however, then defamation arises. For example, even if the story happened exactly as Jackie told the Rolling Stone freelance reporter, but it just occurred at a different fraternity house, it is the Facebook profiles of Phi Kappa Psi members who didn’t rape her that people are browsing to see if they look like rapists.
In the other case, Dunham’s account might be factually truthful save that, for example, Dunham might have decided that it fit her feminist memoir better if she was raped by the resident Republican rather than one of Oberlin’s many mustached progressives (an example I picked because, based on other news stories about misogynistic men, leftist seems plausible). Since the story is false regarding Barry, he has a case for defamation. (Even if her publisher releases a statement that “Barry” was an alias for Dunham’s rapist, as it did Monday afternoon, Barry the Republican was still easily identifiable from Dunham’s memoir, and he still has to face that many think he was the rapist.)
Second, the defamatory statement must be unprivileged. For instance, if it happened while giving legal testimony, then a defamation suit would fail. If the witness knew his statement was false, he might be guilty of perjury, but the subject of the false statement couldn’t sue for defamation. I see no applicable privilege defense in either case.
Third, there must be fault amounting to at least negligence on the publishing of the statements. Both Dunham and Rolling Stone have basically admitted negligence. In Dunham’s lead-up to the defamatory statements about Barry in her book, she writes:
I’m an unreliable narrator.
Because I add an invented detail to almost every story I tell about my mother. Because my sister claims every memory we ‘share’ has been fabricated by me to impress a crowd. Because I get ‘sick’ a lot. Because I use the same low ‘duhhh’ voice for every guy I’ve ever known, except for the put-off adult voice I use to imitate my dad. But mostly because in another essay in this book I describe a sexual encounter with a mustachioed campus Republican as the upsetting but educational choice of a girl who was new to sex when, in fact, it didn’t feel like a choice at all.
She describes herself as quite the consummate fabulist. Then she explains she wasn’t truthful in another passage about Barry, but that, this time, she is telling the truth. It reads as if telling the truth is an exception, not the rule for her. She prefers making up stories to suit her own narratives. That’s one thing when you are writing a diary. It is another when you publish a book as a celebrity. In the defamation case against Dunham, I anticipate that quote will be found behind the tab labeled “Negligence-Exhibit A.”
Likewise, Rolling Stone seems to have provided rather straightforward negligence evidence for the lawyers. Publishing the UVA gang-rape story in its final form was not just negligent but unethical. The Society for Professional Journalists has a Code of Ethics. First item: “Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible.”
Rolling Stone Broke At Least 16 Journalism Ethics Rules
Rolling Stone’s apology admits failure on these things. But that’s just the start. SPJ breaks down journalist ethics into four basic principles: seek truth and report it, minimize harm, act independently, and be accountable and transparent. There are many more violations to find there even though the list is relatively short and straightforward. (I recommend reading it with a mind to news in general. Egregious examples of violations abound in modern reporting.) Based upon the Rolling Stone story and apology, original and revised versions, I count 16 of 35 potential ethical failures, conservatively, including the entire section about minimizing harm:
– Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.
– Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment.
– Recognize that legal access to information differs from an ethical justification to publish or broadcast.
– Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information.
– Avoid pandering to lurid curiosity, even if others do.
– Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges.
– Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.
If these are an accurate example of journalism’s ethics, then lawyers ought to be able to show negligence just using Rolling Stone’s replies to the unraveling story. “These are the standards journalists are taught in school, and the reporter and her editors blithely ignored them.”
Rolling Stone has likely realized this, which I suspect is why they edited their apology to remove the statement about misplaced trust in their source. They are journalists. They aren’t supposed to trust sources. They are supposed to verify. (See first ethical duty, above.) Rolling Stone might try to fire Managing Editor Will Dana for the original apology that essentially blamed Jackie for the errors in the story and compartmentalize the damage, but see the other ethical duty to take responsibility for reporting. There is no saving option for them. In short, as Dunham and Rolling Stone are likely finding out from their lawyers, they have a problem.
The last of the defamation requirements is damages, which might not be mandatory to prove in these cases, as both defamatory statements involve rape.
The Rape Accusation Is So Serious Lawyers May Not Need to Prove Damages
In some cases, the defaming statement is so damaging— terrible disease, professional reputation, or crimes of moral turpitude, of which rape is a prime example—that courts do not require a showing of damages. This is defamation per se. The law assumes damages. Defamation per se has fallen out of favor in a few jurisdictions, but not in Virginia, the most likely law to apply to the potential Rolling Stone case. If it is not available in the jurisdiction where Barry the Oberlin Republican lives, then he could probably make some choice of law arguments to get a per se standard applied.
All defamed parties in both cases would have reputation damages, as rape is a heinous crime, but as Professor Eugene Volokh discusses here, these might be difficult to show. This is why the per se standard exists. Sometimes damage is hard to measure even when we know it is there.
So assuming that the maligned individuals would only have to prove the first three elements of defamation, above, the only thing preventing either lawsuit, besides money for lawyers’ fees, is the Streisand Effect.
The Accused Have Little to Lose and Much to Gain from a Lawsuit
Volokh’s post on these potential cases mentions the practical pressure against suing for defamation. It is ironic popularization, more commonly known as the Streisand Effect. Barbara Streisand once sued an environmental website to remove pictures of her ocean-side estate, which the site had published as an example of coastal erosion. Few had seen the pictures before the suit, but the pictures were quite well seen after she filed suit, so much so that she is the namesake of the effect.
If these men sue for defamation, the concern goes, then they will not only make the allegations better known, but also will have their lives exposed to investigation. Rolling Stone, Penguin Random House, Dunham, Jackie and a host of editors will each be highly motivated to prove the truth of the allegations and—in an effort to argue against damages—would probably search for proof of a reputation so awful that the defamatory statements, even if false, couldn’t have damaged their reputations further.
In typical cases, I think Volokh is right: these concerns would deter a lawsuit. But these are not typical cases. These are sensational stories of the Internet Age. Everything Dunham writes gets international commentary online (despite her TV show’s relative lack of popularity). Journalists from popular publications are already searching the Phi Psi members’ Facebook pages and scoring their rapist potential. A dispatch from Hanna Rosin at Slate:
In the last few days, the names of the fraternity members started to leak out, and many of us [at Slate] began to look up their Facebook pages. I found myself playing the profiling game: Is that the kind of haircut a rapist would have? Are those the kinds of girls he would have hanging all over him? Oh, yeah, that bro is totally a rapist. If the boys remain shadows in these stories, as so many of them have as we’ve (rightfully) focused our attention on campus sexual assault, then we can project all our prejudices onto them. Which is exactly what people did to women for all those years.
More publicity in this context is relatively inconsequential. There is already enough publicity to warrant a reaction from them. (And in the circumstance that a court did not apply a defamation per se standard, posts like Rosin’s could be used as evidence of damage.)
More importantly, Americans face a news world where journalism standards are tossed aside in favor of viral stories. Add to the viral pressure the activist pressure, where truth is supposedly irrelevant and women are to be believed regardless of facts. Barry, the members of Phi Psi, and the fraternity as a whole might see themselves as required by honor and bravery to take a stand. If they don’t fight these allegations, who else will fall victim to the consequences of false rape claims?
Looking at the Phi Psis specifically, many might see these men as oafs, hard partiers, likely violent misogynists, but at least for the men of Phi Psi at UVA, I bet they see themselves as honorable. They have a bond of fraternity spanning generations—again, normally something people scoff at nowadays, but it probably means something to these men—and a collective deep pocket that those bonds can provide. With those advantages, I also bet they see a responsibility to stand when others cannot, such as the solo cases like Barry’s, in which he has to seek crowd funding to pay for the suit. Throw on weakened due-process protections resulting from Title IX requirements and the reality that, once a rape allegation gets into the system, men are on their own, and suddenly a little more unpleasant publicity for a handful of fraternity members is nothing in the face of the growing threat of false accusations.
Why Phi Psi Will Sue Rolling Stone, But Not Jackie
If Phi Psi, both the individual members and the fraternity, sue on these facts they might break Rolling Stone, which if nothing else, would provide a strong deterrent to any other media outlet publishing unverified stories. This deterrent effect leads me to believe they will sue Rolling Stone rather than Jackie, the source. The cynic might think it is Rolling Stone’s deep pocket they or their lawyers seek, but that is not all of it. That is one of the reasons I haven’t given much discussion to the freelance writer. She will likely be named in any suit, but the publicity around this story meltdown makes it highly unlikely any other outlet will ever hire her.
The current cultural environment won’t stand for suing an alleged victim of rape. Dunham is a rare exception, since she published her accusation in a well-publicized book, the accusation is severe for Barry, and she probably contractually indemnified Penguin Random House. Even so, I expect a public relations firestorm on this point if Barry sues Dunham. As for Jackie, even with solid contrary facts I doubt many law firms would want to take the kind of PR heat from suing a woman who claimed she was raped. In addition, Rolling Stone’s actions towards Jackie, who allegedly wanted her account taken out of the story, and the depressing implications the sensationalized article has for other rape victims has made them a publishing pariah. They are the only entity to have enraged everyone. That makes them safe to sue, from a public relations standpoint.
Given the current notoriety of the story, the members of Phi Kappa Psi have little to lose. They likely have the money and they most certainly have the motivation. They might not have to prove damages. They have a target everyone hates and a one-year statute of limitations. (Assuming they sue in Virginia). The New Republic isn’t the only magazine that should have held a wake last week.