A prominent legal scholar gave an interesting analogy for how the case against Rolling Stone's rape story may play out
The suit was filed in response to the now-discredited article "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA," which told the story of a gang rape that apparently never happened.
The story drew national outrage but was discredited following an investigation by Columbia Journalism School and was retracted by Rolling Stone.At the center of the defamation case is the issue of libel, one of the areas of free speech not protected by the First Amendment. Proving statements written in Rolling Stone were libelous, however, isn't necessarily clear cut.
To start, Phi Psi will need to prove that the defamatory statements were about the fraternity specifically and not just the individual fraternity brothers implicated in the story.
UCLA law professor Eugene Volokh provided an interesting analogy in the Columbia Journalism Review about Phi Psi's role in the story:
"If someone said, '[There's this] bar, people routinely get raped in this bar.' Is that libel of the bar? You're not accusing the bar of rape, to be sure, but you are accusing the bar of being a dangerous place that maybe allows dangerous patrons or dangerous employees. And the likely consequence of that is that the bar will lose business."
Perhaps more importantly, a judge will first rule on the issue of whether Phi Kappa Psi is a public or private figure. The 1964 Supreme Court case New York Times v. Sullivan established that the standard for proving defamation in libel cases differs depending on whether the plaintiff is a public or private entity.
With a private entity, the publisher must only be proven "negligent," while public entities must prove malice - a much higher burden of proof.The Phi Psi lawsuit against Rolling Stone isn't the only case currently pending against the magazine for their retracted story.
Nicole Eramo, the University of Virginia associate dean of students, also filed a defamation lawsuit against Rolling Stone magazine. Earlier this year, a lawsuit filed by three individual fraternity members was dismissed by a judge, though it's unclear if the plaintiffs will appeal.