March 24, 2015

If the UVa frat sues Rolling Stone, "they are opening up every young man in that fraternity to scrutiny — their drinking habits, and I’m sure some of them are underage..."

"... their sexual habits, and their overall conduct....  It just seems like there’s a whole host of issues that could be there, and it would be unfair and unwise to subject these young men to that," Charles Tobin — who specializes in defamation law — told WaPo's Terrence McCoy.

In addition to that skeletons-in-the-closet problem, McCoy points out the problem of a group claiming defamation:
The Rolling Stone article doesn’t specifically name any student beyond pseudonyms and descriptions that aren’t matched by any member of the frat house....

For any group to have a justifiable claim, wrote Ellyn Tracy Marcus in the California Law Review in 1983, the group needs to be small. "As group size increases, courts become skeptical that the defamation could reasonably be understood to refer to any individual group member. … Reasonable persons do not take literally statements defaming groups of people, and understand such statements only as generalizations or exaggerations."
I'm looking at that law review article, and it's talking about, for example, a case where individual D.C. taxi drivers tried to sue The Washington Post for an article portraying D.C. cab drivers as rude louts. Rolling Stone besmirched the name of a specific frat. Anyway, McCoy also links to Eugene Volokh's analysis (from last December, before the recent news that the police investigation has found absolutely no evidence to support the rape anecdote told by Rolling Stone). Volokh discusses "defamation of a group," but then moves on to the separate topic of "Defamation of the fraternity": "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."

I'm not a libel law expert, but I see the "group libel" problem as addressing whether individual frat members could successfully claim to have been defamed because their frat was defamed. If the frat sues as an entity, there's no "group libel" problem.

70 comments:

Alexander said...

It would be a shame if we had to drag a bunch of you kids through the mud, all because you dared to stand up to us after we dragged a bunch of you kids through the mud.

Bob Ellison said...

Sounds like the male equivalent of slut-shaming.

I've got four sons, one in college. My skin is in this game. The culture is preparing me to go apeshit as soon as one of my sons is illegitimately accused of a crime. This is not going to go well.

lgv said...

Wow, McCoy uses the tactic of scrutinizing the "victims" by airing their drinking and sexual habits in order to support inaction.

Isn't that the same argument used to persuade rape victims not to press charges or sue their rapists?

As for the individual vs. group, I can see the case for the fraternity suing RS, but I find it a much harder case for the individual frat members.

lgv said...

"I've got four sons, one in college. My skin is in this game. The culture is preparing me to go apeshit as soon as one of my sons is illegitimately accused of a crime. This is not going to go well."

Well, one of four college men are rapists according to what I heard. I read it on the internet, too.

Eric the Fruit Bat said...

Seems counter-intuitive that frat members would be proud to admit under oath that they have never gotten laid.

traditionalguy said...

The Massachusetts Bay Puritan Theocracy is back and is angry at anyone caught having any fun.

How many Frat Boy Witches can be found and be publicly burned? That is the question.



rehajm said...

their sexual habits, and their overall conduct.... It just seems like there’s a whole host of issues that could be there, and it would be unfair and unwise to subject these young men to that,

Also why we discourage women from prosecuting rape, right?

lgv said...

Bob Ellison,

I apologize if you didn't realize my comment was snarky sarcasm.

Bob Ellison said...

Igv, and what is the purpose of trying to raise our sons with honor and respect toward women and other men?

Why should we bother?

We bother because it's right.

Bob Ellison said...

No, Igv, I got it.

Unknown said...

If the organization sues won't the individual members still be subject to discovery?

I can see how the corporate entity can sue for defamation. Not many people are going to want to pledge that fraternity now, regardless of its exoneration. And it was vandalized and the people who organized and led the lynch party are known, they aren't trying to hide. They are proud of it. So you could sue them for property and other damages. But then you get into the whole discovery thing.

traditionalguy said...

When a special inquiry court is created to find and punish a conduct, it will always find it, or if not, it will find lots of other bad stuff and rule that " The accused is innocent, but needs to be punished anyway."

Most groups use the catch all called "guilty of conduct unbecoming a (college student)"

Bob Ellison said...

I apologize if your name is LGV and not IGV. It's difficult to tell the difference.

Ann Althouse said...

It's certainly true that if you sue somebody, you are lighting a fire under them. It's possible that they will settle because they don't want the effort and ugliness of the fight (or because they expect to lose), but if they decide to fight, they will have reason to come up with whatever is useful, and you have to take that into account before you sue. You are opening yourself to discovery and counterclaims.

When the cause of action is defamation, there is always the alternative remedy of using your own speech to achieve your goals. The frat in this case has gotten the benefits of public speech, because there's a lot of interest in this story, and many powerful voices have joined in to vindicate the fraternity's interests.

If you go to the courts, the dynamics change, and you have to think through whether you like the risks and want the benefits that will come in the judicial context. You become the attacker and you have the burden of proof. Will you be better off in the end? You may unwittingly make the defendant look sympathetic.

MaxedOutMama said...

Yes, I think your analysis is right. Because the Rolling Stone article implied that it was a hazing ritual imposed by the fraternity for pledges, I believe they do have a defamation case.

Falsely asserting that membership in this frat during the time period covered required participation in gang rape does indeed defame individual members during the time in question, unless you believe that gang rape is no big deal.

They have a case against Rolling Stone. I think they would win damages in a jury trial. Whether they have a case against UVA is highly questionable.

And since the claim was that the fraternity hazing practices required participation in gang rape, I doubt that too much inquiry into drinking habits will be done.

MadisonMan said...

You may unwittingly make the defendant look sympathetic

It would be hard, I think, to make RS look sympathetic in this case of false reporting.

Unknown said...

" Because the Rolling Stone article implied that it was a hazing ritual imposed by the fraternity for pledges, I believe they do have a defamation case."

I had forgot about that. That Rolling Stone's reporter, editors, and fact checkers all thought it was plausible that a fraternity could make gang rape a hazing ritual, thereby requiring all of its pledges to commit a morally reprehensible act and expect all of them to keep quite about it. That the pledges would all agree to commit a felony that could put them in to prison for years, with not a single refusal and no reporting this request to the police. That the members of the fraternity would put themselves into danger of conspiracy charges if a single pledge wasn't a psychopath and went to the police.

Says something about their grasp of reality.

MaxedOutMama said...

Additionally, under the "group libel" provision, it is very easy to show damages. The property was vandalized, the frat was suspended, and the frat was forced to hire lawyers to protect their interests.

Brando said...

I figure the Frat has a better case for libel as the frat was specifically named, and specifically targeted (temporarily kicked off campus, and subject to vandalism and threats by the usual mob of mouth-breathers and the white knights hoping to have sex with them).

Do they have a case against Jackie as well as Rolling Stone? She certainly lied to the reporter, but allegedly tried to keep her story out of the publication. At the very least, the school should be taking some disciplinary action against her.

Brando said...

"If you go to the courts, the dynamics change, and you have to think through whether you like the risks and want the benefits that will come in the judicial context. You become the attacker and you have the burden of proof. Will you be better off in the end? You may unwittingly make the defendant look sympathetic."

I wonder though how RS could look sympathetic here? Their best bet is that they were incompetent dupes who believed they had properly fact checked this insane story.

As for the frat, so it gets pointed out that they have zany rituals and too much drinking. Unless they really have institutionalized sexual assaults that would get uncovered at trial, I don't really see what they would have to fear here.

MaxedOutMama said...

Ann - in this case, it is impossible to make Rolling Stone look sympathetic. The failure to do even basic fact-checking of a very extreme claim is quite astonishing.

It only takes one student to get on the stand and describe what this did to their grad student search for an advisor or graduate applications, job search, personal relationship, etc.

The individuals in that frat will never totally escape this. There will always be those who believe that "something was wrong".

Yesterday, on Democratic Underground, the response to a post about the press conference assumed it was to announce charges. The conduct asserted in the Rolling Stones article was heinous, and heinous AS A GROUP. There is no possible way that the lives and prospects of some of these members haven't already been negatively effected.

MaxedOutMama said...

Ralph - Let us not forget that the proprietor of this blog apparently believed the story.

If you were a member of that frat and had applied for an internship, to law school, etc, during the time in question, there's no doubt that it would harm you. And then what about relationships with faculty, etc? Once the university suspended the frat, they too were lending credibility to the claim.

Look at this:
http://www.huffingtonpost.com/2014/11/20/phi-kappa-psi-uva-vandalized_n_6194870.html

Note also the picture of the big rally in support of rape victims. The climate on campus for these students was vicious, and probably so extreme that if a student attempted to claim that it did not occur, they would have been viciously verbally attacked for the defense. When asserting your own innocence is held to be proof of your own depravity, your situation is dire. That's the atmosphere on college campuses today, and more specifically, the atmosphere on the UVA campus during the first few months following the article.

MayBee said...

The insanity around this case is both jaw dropping and disheartening.

Even yesterday, the fact that this girl had lied and defamed a whole group of young men could simply not be reported.
CNN's Sunny Hostin and the rest of the panel had to bring up the fake 1 in 4 will be raped stat, the fake only 2% of rape accusations are false stat, the specious only 48% of rapes are reported stat.

How this affected those accused or why we have entered into this current mania was left unexplored.

But are women really such delicate creatures we cannot stand hearing a woman made up a terrible rape claim for attention?

MayBee said...

The kids who sang a racist song on a bus have been kicked out of college.

The girl who accused a specific group of men of a vicious gang rape is having her reputation protected and her identity concealed.

Women must be coddled.

Big Mike said...

I imagine that their legal team is aware of the threat, and equally aware of legal counter-measures.

With luck the settlement will drive "Rolling Stone" out of business. Good riddance, and an excellent warning to other alleged news outlets when the story is "too good to check."

SGT Ted said...

Sounds like the male equivalent of slut-shaming.

That's exactly what this is.

Those dirty whores..I mean "fraternity members" would be wise to not press their claims, because we'll find out what they were wearing to the bar that night. They very well might have brought it on themselves.

Right?

Big Mike said...

And while they're at it, they should sue the University itself, President Theresa Sullivan as an individual, and the Charlottesville police who failed to investigate the vandalism that occurred.

The local gendarmerie can't be bothered to track down a serial rapist/murderer preying upon UVa co-eds, can't be bothered to investigate a vandalized frat house even after perpetrators confessed in public, but they sure can beat the snot out of a black student with a fake id.

Bob Boyd said...

"Over?! Nothing is over! Was it over when the Germans bombed Pearl Harbor?"


https://www.youtube.com/watch?v=q7vtWB4owdE

Matt said...

Do any of these attorneys offering their opinions actually practice law in Virginia? The article cites a D.C. lawyer, a Georgia law professor, and a law review article from California. If the frat sues Rolling Stone, it is likely that whatever court hears it will be applying Virginia law, with, as always, federal constitutional limits. I wonder what Virginia lawyers thinks about this case.

Larry J said...

lgv said...
Wow, McCoy uses the tactic of scrutinizing the "victims" by airing their drinking and sexual habits in order to support inaction.

Isn't that the same argument used to persuade rape victims not to press charges or sue their rapists?


It is exactly the same argument and tactic as was used against actual rape victims. It is just as reprehensible now was it was back then. Only, because these are young men we're talking about, no one really gives a damn. The accusation is all that matters. Condemn first, investigate later.

Were I them, I'd be ready for a scorched Earth policy. I'd sue the woman who made the false claims. I'd sue Rolling Stone for journalistic malpractice that resulted in defamation. I'd sue the university and its president by name for punishing the fraternity on false charges. The only way to reign in this nonsense is to make the people responsible for it pay large damage settlements.

Actual rape and sexual assault are far too serious crimes to be left to the charlatans and amateurs running the show as they are today. Every rape allegation without exception should be immediately turned over to local (not university) law enforcement.

Jay Vogt said...

Not sure about the wisdom of pursuing a defamation action, however criminally this was curious to me:

From a Washington Examiner article yesterday "{Police Chief Timothy} Longo also said the Charlottesville police tried to obtain records from Jackie's meetings with U.Va. Dean Eramo, but that Jackie wouldn't sign a waiver releasing them."

Is this not what a subpoena is for?

Michael K said...

If I were Phi Psi, I would just ask a judge for an injunction to make people stop calling a fraternity a "frat."

rcocean said...

If the Frat can't sue the RS, they should sue the University. I hope someone gives the Frat some $$$ so they can stick it to RS, win or lose.

Those RS characters need to be punished especially Rubin.

Jay Vogt said...

. . . . Anne says, I'm not a libel law expert, but I see the "group libel" problem as addressing whether individual frat members could successfully claim to have been defamed because their frat was defamed. If the frat sues as an entity, there's no "group libel" problem."

I'm not either, but I think it gets pretty specific pretty fast. This specific fraternity at this specific University has specific young men responsible for the activities associated with pledging, hazing and socializing: namely the President, Rush Chairman and Social Chairman. They are real people, with real reputations and real futures.

Unknown said...

@MaxedOutMama

Young men in groups are capable of some pretty stupid stuff, but in addition to having to recruit psychopathic pledges who valued participating in gang rape over the social status gained by exposing such a hazing ritual they would have to also rely on the victims not reporting the rape to the police. Ever. Not one single time.

A moments thought would reveal that the only way such a scheme could work in the long term is if they killed the victim.

The fact that this story had any legs at all shows that a large number of people in positions of power in our media, government, and academia are as hysterical and irrational as the accusers and crowd during the Salem witch Trials.

Bryan C said...

"Is this not what a subpoena is for?"

A subpoena for poor lil' Jackie's accusations? Why, that's practically like raping her all over again.

Unknown said...

"Your honor, while it is true that the accused did not, in fact, ride a broom stick to a Black Mass where she consorted with the Devil, his imps, and fellow witches. Nor did she, at the Black Mass she did not attend, curse our crops or children.

However, as she is a witch and is accused of horrendous deeds (for which their is no evidence whatsoever but the word of an unreliable witness who as been shown to change her story according to her audience and advantage) then it is clear that despite her apparent innocence she must be guilty of some horrible crime and must be punished for it."

Unknown said...

http://tvtropes.org/pmwiki/pmwiki.php/Main/IdiotPlot

MayBee said...

How many of these stories that have caught national outrage and national attention have actually held up under scrutiny?

Duke rape- no
Trayvon - no
Mike Brown - no
Eric Garner - yes
UVa rape - no

Are we going to learn any lessons?

Anonymous said...

If it had been my fraternity chapter someone would start singing "On the cover of the Rolling Stone" every night after dinner. We would have all chimed in, in harmony.

We used to sing the themes from hog feed commercials, too.

Anonymous said...

Would it help the liberals to see fraternities as self-directed communes? They provide their own housing and food service. Decisions are made by one-man-one-vote rules. Maybe all students should be required to join one and learn some skills in group decision-making.

Or maybe instead of "frat" can we call them "kibbutzes." I think that still has the connotation of a hipster alternative to capitalism.

William said...

I didn't read the RS article. I wasn't aware that they claimed that the fraternity had an institutionalized policy of gang rape. You would think that a charge so patently ridiculous would have been made known and mocked for its absurdity. If accusing an organization of practicing ritualized gang rape is not defamation, then what exactly is defamation......I suppose if RS accused the Jewish fraternities of killing Christian children during spring break that might pass muster.

Krumhorn said...

If the frat sues as an entity, there's no "group libel" problem.

True, but it also dramatically changes the damages. Even if there are 50 to 100 Phi Psi members in that campus frat house, it's hard to escape the implication from the story that most of them are brutal rapists. They don't have to prove damages whereas the association would.

Nonetheless, I think that I would be hesitant to file for defamation, not because of what might generally be uncovered in discovery, but because if there is any scintilla of truth to Jackie's story (which there might very well be.....even if only a scintilla), she might be induced to part with what is really true, complete with name(s), and start the whole thing back up again with real ferver.

- Krumhorn

Smilin' Jack said...

"If the UVa frat sues Rolling Stone...""

Why not sue the bitch who defamed them? RS was just the messenger.

Bruce Hayden said...

If I were Phi Psi, I would just ask a judge for an injunction to make people stop calling a fraternity a "frat."

It grates on me too. Back when I was an active member of one, we were instructed to correct anyone calling the fraternity a "frat". But, it appears from some posts that current fraternity members are not as gung ho in this regard was we were some 40+ years ago.

Bob Boyd said...

"Why not sue the bitch who defamed them? RS was just the messenger."

Presumably because RS has deeper pockets.

Brando said...

"Why not sue the bitch who defamed them? RS was just the messenger."

They may have a better case against RS, because Jackie arguably only lied to a few people while RS published the story. They ought to go after both, and toss in the University while they're at it, and see which claims have wings.

I'm still waiting to see the flood of "mea culpas" from the various screechy commentators who defiantly defended Jackie's story against those who suggested there were problems with it.

Tom said...

Typically, the house is owned by a housing corporation. These housing corporations cannot be charitable organizations (donations to the housing corps are not usually deductible). So the housing corps have to collect rent. If the housing corp was injured by article - either by lack of revenue or from vandalism - the housing corp may have cause to sue. To sue whom, is the question. Rolling Stone started the issue with its lack of due diligence with the article. But UVA acted upon the article and shut down the fraternity (along with others). Would a jury believe that it was reasonable Rolling Stone to believe that it's false article would result in harm to the fraternity? Maybe. Personally, I'd sue them all and see who blinks.

MaxedOutMama said...

Ralph - I found it completely implausible, from start to end.

But as to my earlier contention that the falsely accused will never, ever escape this, may I refer to the esteemed Sen. Kersten Gillibrand?
http://polhudson.lohudblogs.com/2015/03/24/gillibrand-avoid-victim-blaming-in-uva-rape-story/?utm_source=dlvr.it&utm_medium=twitter
Sen. Kirsten Gillibrand, who is pushing for stronger laws against rapes on college campuses, today warned against people criticizing the woman at the center of a University of Virginia sexual assault case.
...
“Victim blaming or shining the spotlight on her for coming forward is not the right approach,” Gillibrand said on “The Capitol Pressroom,” a public radio show in Albany. “In fact, what we have to focus on is how do we keep these campuses safe? How do we have better trained personnel on campuses so they can tell a survivor what her options are and so they can have all the facts?”


This is not just despicable - it's a modern McCarthyism, and it has very high-level adherents.

There's money in rape hysteria, and jobs. A nice pot of money and jobs at a time when government funding is getting tighter. Do not expect anyone of the people who depend on the narrative for their living to display the faintest trace of rationality.

I would bet a mint that if Prof Althouse were to publicly criticize the anonymous "Jackie" she would become the targeted of crazed activist groups at her campus.

NEVER BE THE FIRST TO STOP CLAPPING WHEN THE ACTIVIST SPEAKS.

MaxedOutMama said...

Bob - no one knows the identity of "bitch who defamed them".

Jackie is anonymous. The university and Rolling Stone will go on preserving that anonymity.

It's also quite clear that Jackie has some sort of psychiatric problem. It is Rolling Stone that turned one individual's maladjustment into a grand indictment through journalistic malpractice.

MayBee said...

I think they'd be afraid to sue "Jackie" because the Rape Activists Machine would go full force agains them.

In their statement yesterday, the fraternity had to say they hoped what Rolling Stone did wouldn't deter rape victims from going forward.

buwaya said...

It is situations like this that suggest that the suppression of dueling was, in retrospect, an error.

There are cases (quite a lot, and growing) where there is no practical recourse under the law.

Unknown said...

"I think they'd be afraid to sue "Jackie" because the Rape Activists Machine would go full force against them."

"Jackie" apparently picked the fraternity at random. This reminds me of the "Satanic Abuse" scandals in the 80's. Specifically the one were a cop took one of the "victims" (actually the kids were victimized by the authorities) and drove him or her around town so they could point out the abusers. A lot of poor and mentally challenged people ended up in prison. The witch hunt didn't end until they started accusing people who could afford lawyers and had high social standing.

Anyone that pointed out the absurdity of the accusations (holes in the stories were numerous and obvious) was accused of being part of the satanic conspiracy. Sometimes they were even charged.

Brando said...

"Jackie is anonymous. The university and Rolling Stone will go on preserving that anonymity."

I think her identity has been leaked, but news outlets are sticking with their policy of not giving her full name.

In any event, if the frat sues they can force RS or UVA to give up her name and identity so she can be a named party.

Michael K said...

"This reminds me of the "Satanic Abuse" scandals in the 80's. "

That is a story that counsels caution. Remember Gerald Amauralt was imprisoned for 18 years and Martha Coakley was running for Governor as a Democrat while he was confined.

In 2002, then-Acting Governor of Massachusetts Jane Swift refused to commute Amirault's sentence, despite a unanimous vote in favor of his release by the state's parole board. Amirault's case had previously been upheld by the Massachusetts Supreme Judicial Court.[5] Martha Coakley, then Middlesex district attorney and subsequently State Attorney General, lobbied Swift to keep him in prison[6][7] and Swift denied Amirault's clemency.

There is no question about the malice at the base of these issues.

Brando said...

"I think they'd be afraid to sue "Jackie" because the Rape Activists Machine would go full force agains them."

Maybe true--while no doubt she lied, I can see her painting herself as a troubled, mentally ill person and getting sympathy. Plus the fact that she likely has no money, so the frat probably for PR purposes won't want to go after her (though it's a shame--people shouldn't be deterred from reporting rapes, but people should absolutely be deterred from making false reports).

"In their statement yesterday, the fraternity had to say they hoped what Rolling Stone did wouldn't deter rape victims from going forward."

And they were right to do so--none of this should mean that a rape victim is better off staying silent. Unfortunately, when people see a case like this (or Duke Lacrosse) they may be thinking "I'd like to report my rape, but I don't know if I can handle having my story run through the wringer like this--not all the facts make me look good" rather than "I better not go telling lies!"

Unknown said...

@Brando

Yep. Standing up to the mob could have negative political consequences. So what if a few nobodies have to go to prison.

The important thing is to get and hold political power. Once that is done then you can start working on helping the helpless.

Unknown said...

Oops. Meant to direct my last comment to Michael K

Earnest Prole said...

Reasonable persons may not take literally statements defaming groups of people, but some university presidents certainly do. What else explains their attempts to eradicate entire fraternities on the pretext of a member’s actions, whether real or imagined?

n.n said...

Rolling Stone yelled "fire in a crowded" frat house, which is as a matter of precedence not protected by the First Amendment. Neither is yelling "rape", "racist", etc., but prosecutorial discretion and liberal activism have nullified rational and reasonable.

Birches said...

Yesterday, on Democratic Underground, the response to a post about the press conference assumed it was to announce charges.

Against "Jackie" or against "Haven Monahan? I'm just wondering if the people at DU are even more deluded than I thought.

Michael K said...

Political power on the left comes from these serial panics, like satanic abuse, then day care abuse, then rape culture.

damikesc said...

I guess blaming the victim is OK in some areas.

Matt Sablan said...

I don't see what their drinking habits have to do with whether or not they raped someone on a specific night.

richard mcenroe said...

Charles Tobin is the kind of lawyer who would drag a rape victim's entire sexual history into testimony.

RecChief said...

Terrence McCoy endorses extortion

MaxedOutMama said...

Birches - charges against the nine fraternity boys who the poster believed raped "Jackie".

Here's a link - I did not make this up:
http://www.democraticunderground.com/10026404011

n.n said...

JournoLists are in competition for the least admired professionals in a civilized society, along with ambulance chasers, [civil rights] racketeers, feminist supremacists, etc.

zefal said...
This comment has been removed by the author.
Anonymous said...

As a defendant, UVa is more vulnerable than RS. If the frat were to sue the school, I very much doubt UVa would adopt a scorched earth legal strategy against their own students. There would be strong repercussions from many sides if they did.