The Phi Kappa Psi chapter at the University of Virginia has announced that it will file a libel action against Rolling Stone magazine based on the magazine’s story that a gang rape occurred at the chapter house. Law enforcement officers have found no evidence of any such rape, and Rolling Stone has apologized for mistakes it made in publishing the story. CNN legal analyst Danny Cevallos discusses the lawsuit and its possible outcomes in this report. The issues were also covered in his CNN story on the subject. [The lawsuit was the subject of an earlier LBN report.]
As to possible outcomes, Cevallos says that the question of how this story will end is like a law school essay question. “Part of it’s easy, part of it’s complicated.” The easiest part of the question relates to the University of Virginia. Because it is a state school, the university is a “state actor,” and New York Times v. Sullivan and later cases have held that a governmental entity cannot recover damages for defamation.
Another possibility is a suit by the fraternity saying that, based on the false statements in the article, the fraternity and its members suffered harm. However, says Cevallos, the general rule is that a group cannot sue for defamation. Likewise, individual members who are not identified in the article would not be able to sue under the general rule.
But there is an exception that might apply in this case, Cevallos explains, called the small group theory. The fraternity might fall under that exception for purposes of a lawsuit against the magazine. “But that’s not a slam dunk.” Even if the fraternity would be covered by the Virginia case law, a lawsuit has other problems.
If the fraternity members file such a lawsuit, their personal lives might be put under a microscope during the discovery process. Of course, if no one has anything to hide, discovery is not much of a threat. And, says Cevallos, Rolling Stone’s actions in the publication of their article seem to fit the requirements of defamation.
A different but related issue is that law enforcement was unable to find evidence of wrongdoing, but discovery in a lawsuit might turn up information that would be detrimental to the fraternity. Given the wide-ranging nature of discovery and the broad boundaries of what can be discovered, fraternity members might find that things in their emails, for example, could be embarrassing to them. This, says Cevallos, is a problem every plaintiff faces when commencing a lawsuit.
Cevallos says that Virginia law offers several avenues in the pursuit of a defamation claim. Public figures are out of luck unless they can prove that a defendant acted with malice or with reckless disregard for truth or falsity of statements. Private individuals are in a different position and do not need to establish the high standard of malice that public figures must prove. Virginia law, Cevallos suggests, will permit recovery if the plaintiffs in a lawsuit prove negligence.
Danny Cevallos is an attorney and the co-founder of Cevallos & Wong, LLP, a Philadelphia-based law criminal defense and civil litigation law firm. He is also a legal analyst for CNN and HLN. Danny is also admitted to practice law in New York, New Jersey, the District Court of Puerto Rico, and the United States Supreme Court, along with a number of federal district courts and circuit courts of appeal, including the United States Supreme Court. Danny practices primarily in the Philadelphia area, and also in the state and territorial courts of the United States Virgin Islands. The Legal Broadcast Network is a featured network of the Sequence Media Group.