On April 5, Rolling Stone published the Columbia School of Journalism report on their November 2014 story about a gang rape at a fraternity house at the University of Virginia. That story fell apart shortly after it published. The report asks in the title, “‘A Rape On Campus’: What Went Wrong?” Everything, it seems. The investigation found:
[Rolling Stone’s] failure encompassed reporting, editing, editorial supervision and fact-checking. The magazine set aside or rationalized as unnecessary essential practices of reporting that, if pursued, would likely have led the magazine’s editors to reconsider publishing Jackie’s narrative so prominently, if at all.
After the report came out, the fraternity named in Rolling Stone’s story, Phi Kappa Psi, announced it would pursue all legal recourse against the magazine.
Last December, when initial skepticism prompted actual reporting which exposed the story as false, commentary turned from rape culture on college campuses to possible defamation suits against Rolling Stone.
Defamation, a false statement against someone’s reputation, is legally complicated. The articles differed on who could sue and who couldn’t and whether anyone would. Most recognized that a suit from the fraternity was viable but considered it unlikely, even if deserved. I wrote one of those articles, but I thought a suit by the fraternity was both deserved and very likely.
I was not surprised this week by Phi Psi’s announcement because I had made two different assessments of the case, neither of which have gotten much coverage.
False Reporting of Rape Is Defamation Per Se
Often, defamation damages are hard to prove. One’s reputation is a subjective thing and hard to measure in numbers unless the case is a simple one, such as a defamed business proprietor losing business. Therefore, the analysis went, even if the Phi Psis could prove the other elements of defamation, there would be a “why bother?” deterrent to a suit. How could they show, much less calculate, damages in civil court? It would be difficult, but hardly impossible to show damages in this case. The story spread on the Internet, and there are plenty of comments which could be used to show damage.
But the gang-rape allegation is defamation per se, a statement against someone’s reputation so egregious that courts assume damage. Defamation per se exists because some statements damage reputations in unquantifiable ways. In Virginia, the most likely jurisdiction for filing suit:
A statement is defamatory per se if it ‘(i) imputes the commission of a crime of moral turpitude for which a party may be convicted… Whether a statement is actionable as defamatory and whether it is defamatory per se are matters of law for the trial judge to determine.’ Taylor v. CNA Corp., 782 F. Supp. 2d 182 – Dist. Court, ED Virginia 2010.
As rape is a crime of moral turpitude for which a party may be convicted, a judge finding defamation per se is highly likely, and therefore, any difficultly in proving damages would not deter a suit, because:
Once a plaintiff proves defamation per se, ‘Virginia law presumes that the plaintiff suffered actual damage to its reputation and, therefore, [the plaintiff] does not have to present proof of such damages.’ (Fleming v. Moore, 221 Va. at 889-90, 275 S.E.2d at 636).
This presumption of damage can present challenges to juries calculating damages, but not in Virginia where the court may award punitive, or punishment, damages alone, without assessing actual damages. (Again, Fleming.)
Phi Psi would not need to prove damages for this suit, but lest anyone assume Phi Psi is just going after Rolling Stone’s deep pockets, Virginia caps punitive damages at $350,000. To monetarily damage Rolling Stone, Phi Psi would have to sue in another venue, such as New York, where Rolling Stone has its offices.* But that is the second point where I differ with other commentators. Not only does Phi Psi not need to prove damages, the fraternity isn’t suing for money, or even straight revenge.
Phi Kappa Psi Is Suing for Honor and Defense
To see damage to a reputation, a court has to know the plaintiff’s character and reputation prior to the defaming statement. Therefore, most commentary assumed that the discovery and cross examination the Phi Psi’s would have to endure in a defamation case would lead them not to sue. It didn’t, and I think my analysis correctly stated why. In the Internet age, the gang-rape allegation gone viral did plenty of damage and represents an escalating threat to men’s civil rights on campuses. The fraternity likely sees little left to lose and honor to gain in standing against Rolling Stone. (And if I’m right, then University of Virginia President Teresa Sullivan might start worrying about the possible civil rights suit against UVA.)
I know the conventional reputation of fraternity guys: boorish, spoiled, party boys who thrive off their patriarchal privilege. There is some truth here. I’ve known plenty of frat guys. I dated a few others. They weren’t typically poor. They partied. Their living spaces tended from sparse to gross. They occasionally got citations from the Dallas police for peeing in public. But to the extent they were boorish, it was more youth than maleness. I know bad guys existed, but the frat guys I knew were all honorable men or men who aspired to be honorable. It would have been difficult for others to blend in and live together. As one frat guy friend wrote to me in a discussion about why it took so long for anyone to interview some of the Phi Psi’s:
We had a standing order for 25 kegs a week as we were on tap 24 hrs a day, I don’t know how many parties we had but it was A LOT, we had a brother break both his legs after falling off our roof during a football game (yes, on the roof), and lit the House on fire several times with bottle rocket wars. When the Dean came to inspect one of the rooms which caught on fire, he opened the door and knocked over a bong. In addition to the parties mentioned above, every year we used to have ‘October Fester’ and ‘Spring Bake’ (figure it out). For Christmas, we’d put every brothers’ name into a hat with his ‘bottle of choice’ written on the back. For whomever you picked, you had to buy him that bottle and write the most offensive poem you could about him. We all got together, finished the bottles and then read the poems. We were on academic probation for so many consecutive semesters that when we finally got off it, we had t-shirts printed.
In the midst of all that, every year, without fail we had a HUGE Christmas party for a house nearby which cared for special needs children. We put a tremendous amount of work into this and had a brother, who was a lineman on the football team, dress as santa. Every year, the workers of that special needs house would tell us they were SOOOO grateful and the kids would be excited about the party for at least a month beforehand. In the springtime we used to raise money for several local charities, always in the thousands of dollars.
To be frank, I remember at least as many girls who were friends hanging out at our house as I do girlfriends. Some female friends were at the house so often, they were like brothers. I can unequivocally state, if a rape had happened in our house, EVERYONE would have known about it and NO ONE would have tolerated it. Yes, it possible that the ‘culture’ of fraternities could have changed in the last 26 years. But I’d bet a dime, its not the culture that’s changed, but instead the rhetoric.
After I graduated, the last time I was there, I pulled into the parking lot for my fraternity the same time as the firetrucks. It was good to see nothing had changed.
Regardless of the stereotype, and regardless of the party-boy impressions, frat guys see themselves as honorable. For quite some time, that honor has had nowhere to go. (Men can still find honor is the military or fatherhood, but by current standards those are for a small group of men the culture assumes are not suited for college or only encouraged in men over 30, respectively.) Young men want to prove themselves, and there are so few ways they can do this any more, especially when they are 20 and the conventional wisdom expects them to be oafs who are less-successful than women. When they live down to this expectation, it is often because they don’t see anything better for them to do.
But after the Rolling Stone failure, a bunch of 18- to 22-year-old guys—from Virginia, no less—have an opportunity to prove themselves. They can stand in the face of continued insult to ensure that Rolling Stone, or any other publication, can never again so callously jeopardize real victims of violence or create victims of slander.
They aren’t interested in the money. They are interested in deterrent.
Rolling Stone Is In Deep Trouble
Phi Psi waited for the Colombia report before they confirmed they would take legal action. That was logical and wise. Most commentators think Rolling Stone would be wise to settle as soon as possible. I agree, but I do not assume settlement is on the table. If I’m right about Phi Psi’s motivation for the suit, it isn’t. The fraternity might offer terms that involve large donations to sexual violence charities and organizations funding Title IX lawsuits by men, and require long-term journalism warnings that will remind us of health warnings on cigarettes, but a simple large-sum settlement isn’t likely.
Additionally, I don’t assume Rolling Stone can be wise. Their recent history suggests otherwise. It isn’t just Rolling Stone’s mangling of this story. Also this week, the Boston Marathon bomber was found guilty on all charges. Rolling Stone had featured him as a heartthrob cover in the months after the bombing. When the Disney measles outbreak and subsequent anti-vaccine reckoning started a few months ago, Rolling Stone’s anti-vaccine article, “Deadly Immunity” by the late Robert F. Kennedy—the one retracted by Salon, who had jointly published the article with RS—made a few rounds. Rolling Stone wasn’t an example of journalistic glory before the gang-rape article.
Now, in the wake of the Columbia report, Rolling Stone has refused to fire any of the key players. They’ve even kept the author of the piece on payroll. At first glance, this is stunning. Obviously, a company in such a precarious legal position would want to take aggressive remedial action and fire the parties responsible. Can the powers at RS really be that dense? Certainly, that is possible. But the lack of firings could also be strategic, if desperate.
The Columbia report finds journalist error at every stage of publication, which means that not only were errors made, but also no one caught any of them. Between the Columbia report and the other evidence of Rolling Stone’s lax story standards, the fire-worthy problems might be so pervasive that they cannot find a logical line to draw between who can stay and who must go. They might have figured that their only hope for the magazine and their individual careers is to stick together and, well, hope.
*New York still distinguishes between libel (written defamation) and slander (oral defamation), but still has libel per se. It has no punitive cap but requires that 20 percent of any punitive award goes to the state’s general fund.