It seems to me that Dean Eramo would be the UVA employee most likely damaged by the RS article. Would a public university dean be considered a college officer and public figure?
Yes, the private plaintiffs do not have to demonstrate “actual malice” by the offender. On the other hand, it is not always clear if one can easily establish that the defendant published a statement about the plaintiff with reckless disregard for whether it is false or true. The journalist in this case and her editors might suggest they acted in good faith because they truly believed the account. The wheels of justice are not always following common sense, or easy conclusions.
The other issue will be about the direct responsibility of the magazine to the vandalism, which was perpetrated by other students. This is not as clear as releases of statements that incited violent acts, such as the rhetoric in the Ferguson case. The magazine might call on the people who suggested that a certain area in Lybia acted as a matter of spontaneous reaction!
This might end up with a token award for the actual damages and a symbolic victory to redress the tarnished reputation. And more than probably led by the insurance company that will want to cut their losses via a quick settlement. Settling cases is not foreign to fraternities.
We’ll probably never know, because it will be secret, but I predict a settlement of five figures, and in the lower half of that.
It gets kind of complicated as to who is or is not a public figure and in what context. But yes, I would start with the premise that a dean at UVa would be a public figure. It really doesn’t require as much as you would think.
A private individual, not a public figure, does not have to establish reckless disregard. Just negligence. That is kinda the point. A defense of we interviewed our source and she wasn’t obviously nuts, and we asked the school to comment and they didn’t, may beat a reckless disregard standard. Such a defense won’t defeat a claim of negligence.
I would bet all the money in my pockets that if Rolling Stone could settle this thing today for low six figures, they would do it in a heart beat.
To the experts: if the fraternity chapter sues RS, would that open the door to testimony regarding the chapter’s general reputation in the community, past transgressions, etc?
I think it is telling that the general reaction among the student body does not seem to have been one of disbelief. In other words, while the house is not guilty of this particular charge, they did not appear to enjoy a sterling reputation on campus when it comes to behavior around women to begin with. (I realize that this may be a mistaken impression.)
I would tend to think that both RS and the house would prefer that it all to go away quietly after some settlement that salvages pride and reputation for the house. (And, by publicly recognizing wrong-doing, also benefits the administrators and the university.)
And while I’m at it, I would point out that the lacrosse players at Duke, while innocent of raping Ms. Mangum, were in the habit of holding raucous parties at their group houses for which they hired strippers, the latter being something I personally consider vile and disgusting, and even more so in college-aged BOYS. Their reputation was terrible in that regard,which is why people initially were willing to believe that the charges might be true. (I do find it appalling that the faculty group who signed the open letter has never retracted it, at least not to my knowledge.)
Unless there is a recent history of provable rapes at that chapter, probably not. And by provable, I mean sexual assault in the way that term is understood in the law, not in some college disciplinary court. A reputation for heavy drinking or general caddishness really isn’t relevant to the question. I know a number of jerks. I don’t believe I know any rapists. There is a difference. Think of the risk you would run if you were Rolling Stone by effectively arguing that it is ok to accuse someone of rape because they sometimes throw beer on co eds at 2:00am. While some people on college campuses may think that any action disrespecting a woman is just one step on the slope of sexual assault, the jury will not be composed of UVa students, but actual adults, and likely older adults. I think for most people past a certain age, rape still means some type of non consensual penetrative act, not the much broader definition which seems to be gaining use on campuses. To equate such a heinous act with some type of boorish behavior would likely really tick off such people.
What sort of transgressions did you have in mind that would impact the suit?
I can’t imagine a student willing to make a public statement under oath something like, “These guys are known for getting girls drunk and having sex with them without their consent (i.e., rape).” Without some substantiating facts to go with it, they might also subject themselves to slander allegations.
I also have to believe that the fraternity’s past behavior has been pretty well vetted at this point, after a police investigation, a university investigation, and an investigation by its own national.
I haven’t read this whole thread so maybe it came up. But we don’t have a Sigma Alpha Nu chapter. Maybe you mean Sigma Nu or Sigma Alpha Mu?
According to there website Sigma Nu raised $15,000. Sigma Alpha Mu raised $3,000. That’s the number they have on there website, along with 1100 philanthropy hours. This surprised me. I’m not saying there number is wrong, but they definitely are a very active chapter. They’re not huge either.
@Ohiodad51, I certainly wasn’t suggesting that it was okay to accuse someone of rape because they were known for caddish behavior, nor would I think that would be what RS would be claiming.
Let’s take it to another situation. Imagine that I have a reputation around town for having loud parties where the police are frequently called, where I have been charged for serving minors. My house is known as a place where kids go to have sex and smoke pot after school. A magazine prints an article in which I am accused of some related criminal activity: say, running a meth lab. It turns out that they printed a false story about me that they could easily have disproved by some basic fact-checking.
If I sue them, do they get to bring up my past transgressions, and can they get neighbors to testify about what they’ve seen going on? Or it that all off the table? That’s my question.
@consolation, I think you answered your own question. At its very simplest, it is not ok to excuse someone of rape when they are not a rapist. There are differences of degree, just like in real life. In your example, someone who drinks a lot or plays loud music at night may be a poor neighbor, but someone running a meth lab is a felon. Big difference. So yes, the law is sort of structured so the amount of damages recovered should rationally relate to the type of person you are and your standing in the community, and if the story was about how this frat planned their parties so they could get girls drunk and take advantage of them, maybe you could use prior wild parties to say, yeah, maybe we couldn’t prove it here, but this what they do, so what’s the harm? Accusing someone of a felony, and one of the big three (rape, murder, incest) at that is just categorically different. While I have been trying cases long enough to not be surprised by what a judge does, I would be shocked if a judge let Rolling Stone make such an argument. On a more fundamental level, any decent lawyer representing Rolling Stone (and they will have good ones) wouldn’t try that type of defense because you would effectively be admitting liability and it would blow up on you in about ten seconds. Any lawyer, let alone the Sharks that will be representing the plaintiffs here, would have all kinds of fun with an argument that Rolling Stone should not be liable because these frat boys are exactly the types of kids you would expect to be rapists.
There are other possibilities for damages I would think than everyone is considering. The fictitious event that Jackie fabricated and RS printed occurred a few years ago. There are members of that local fraternity who have graduated and are out in the work force who may have been damaged by this event. It doesn’t only effect the number of “kegs” the current college members etc. Those men could have been judged by their employers and co workers etc. I am also pretty sure I remember reading hat the current members were effected by professors mentioning in their classes.
The easy part of this case for the plaintiffs is they don’t have to prove whether the allegation is false. The police investigation already did that for them. All they need to prove is that RS was reckless or negligent and what the damages are.
@mamalumper, exactly. The damages here are diffuse, and a plaintiff’s expert can pretty much blackboard whatever number he wants. Now you can’t quantify the damages, and in a case where the defendant maybe made an understandable error, a good defense lawyer could score some points with that. But with an unsympathetic defendant, going after the plaintiffs’ case may tick the jury off, and then things could really get out of hand. That’s why the case will settle.
I think the fraternities deserve a settlement. But one has to admit that “We weren’t guilty of the gang rape THIS TIME” is not as good a defense as “Our fraternity has never been a place where gang rapes happen…”
I think there are plenty of actual damages suffered by the fraternity. The house was closed and they had to move out right at the end of the semester. they weren’t allowed to Rush in the spring and thus lost all that revenue. Individuals had losses related to moving, deposits, truck rentals, etc. I’m sure the house and others had lost deposits for parties in December/Jan. I think it would be easy to establish the tangible losses and I think they’ll end up settling for those.
I would like to see punitive damages in this case. RS could have easily published the story without using the name of the fraternity when it had done no fact-checking, or even the name of the university. Neither of those details added anything to the veracity of the tale of the supposed real rape. Perhaps the plaintiffs can make the case of actual malice by Erdeley, based on her history of writing articles aimed at taking down conventional institutions for rape incidents; a gynecologist, the Navy, the Catholic Church and now fraternities.
I’m not familiar with Erdely’s previous work. Were the previous articles untrue as well?
No to mention, Bay, every single newswire picked up the pictures of the frat house even before the vandalism. That bothered me alot when the story first hit. I was bothered on alot of levels, but I generally am when people cook up these kinds of clearly biased stories.
The thing I have read in this instance is that Erdeley had an agenda and went looking for a story to support her agenda. Survivors at UVa and other schools where she talked to students were uncomfortable with her. (there is a blog from a Yale student, for instance from someone saying that Erdeley passed on easily verifiable stories in favor of this sensational one because she was looking for an explosive story)’ So, I believe there has been some speculation that she has used similar methods in other stories she has been involved with but I don’t know specifics.