Last Call For The Real Victims

The Phi Kappa Psi fraternity at University of Virginia is suing Rolling Stone magazine for defamation, fallout for its now discredited and retracted campus rape story from last year.

The chapter of Phi Kappa Psi said in a statement that it would pursue all available legal action. The announcement came a day after a team from the Columbia University Graduate School of Journalism concluded the magazine failed to follow basic journalistic safeguards in publishing the story, which accused the fraternity of hosting a gang rape.

The story sent shockwaves through the sleepy campus about 70 miles (113 km) from the capital Richmond. Students held demonstrations on campus as well as in front of the fraternity house, which was vandalized after the article was published.

"Clearly our fraternity and its members have been defamed, but more importantly we fear this entire episode may prompt some victims to remain in the shadows, fearful to confront their attackers," Stephen Scipione, the president of the fraternity chapter in Charlottesville, Virginia, said in a statement.

Proving that in a court of law, well, the guys at Volokh Conspiracy admit that's not going to be much of a problem.

Corporations and unincorporated associations that have recognized legal identities (such as unions, partnerships and the like) can also sue for defamation that causes injury to their organizational reputation, independently of whether any member was defamed. For instance, if someone falsely accuses a corporation of defrauding customers, this might hurt the corporation’s reputation even apart from injury to any particular employee’s reputation. And this is true even for nonprofit corporations, see, e.g., Lega Siciliana Social Club, Inc. v. St. Germain (Conn. Ct. App. 2003); Gorman v. Swaggart (La. Ct. App. 1988) (yes, that’s the Swaggart you’re thinking of). As the Restatement (Second) of Torts § 561(b) puts it, 

One who publishes defamatory matter concerning a corporation is subject to liability to it . . . if, although not for profit, it depends upon financial support from the public, and the matter tends to interfere with its activities by prejudicing it in public estimation.

The allegations of such group misconduct at the fraternity house certainly do harm the fraternity as an organization “in public estimation.” Therefore, if the chapter has independent legal existence, whether as a corporation or as an unincorporated association, and if it can show loss of income from potential members or from donors — or other loss stemming from, for instance, punishment by the university — then it could potentially prevail on this. And the central fraternity could also sue for similar losses, on the theory that its reputation has been tarnished both at UVA and elsewhere.

On the other hand, the organizations can’t recover damages for the emotional distress flowing from the injury to their reputations (since they lack emotions). Individuals can recover such emotional distress damage, even above and beyond actual lost income.

So yeah, I think Rolling Stone may have to settle on this one, and that's before the individual defamation suits are leveled.  Where this goes from here, well I'm betting a lot of legal mess across the board, but if there's one guaranteed result from all this it's that campus sexual assaults and rapes will be even less likely than they are now to be reported, especially against fraternity members.