I raised that issue before as RS’ defense might be that they relied on credible facts and did not engage in reckless disregard of the truth. Our resident defamation specialists countered --as far as I know-- that the bar is set lower and that negligence suffices. I think that the public figure defense will not work very well, and that the absence of malice by RS will not play a larger role.
If I were a betting man, I’d still put my money on that the outcome will include redresses for actual damages, and a token amount to sweeten the moral victory with a bit for that purported pain and suffering. The loss of reputation will be both in the eye of the beholders and utterly hard to measure correctly.
I also think that pushing beyond an obvious settlement might turn in to a moral victory, but also a Pyrrhic one when all the closets swing open.
And speaking about obvious, it appears clearly that some believe the frats are entitled to a large compensation, and that this is an established conclusion. I do not think this will not happen, and not surprisingly don’t think it should happen.
I think the fact that people questioned the story does more to show malice or recklessness on RS’s part than anything having to do with Pi Kap specifically.
I was one of those people who upon reading a few paragraphs of the article, felt there was no way in h*** this story was true, but for the fact that RS named the fraternity. My cognitive dissonance told me that there was no way in h*** RS would publish this story with the fraternity’s name if it wasn’t true. So right then, Pi Kap’s reputation became tarnished as to me, until the truth came out.
Professional journalists questioned the story right from the start (WaPo, Slate and LATimes, I believe). Which tells me that if red flags went up for them right away, why didn’t the same flags go up for RS’s editors? This leads one to question whether RS was reckless or didn’t care at all (i.e. was malicious) about ruining Pi Kap’s reputation in order to sell magazines.
Don’t assume the jury will be a lot of students and faculty. I don’t know if Charlottesville is the county seat or if the jury would be pulled from there, but I worked in a court in Boulder and then entire time I was there we has 2 students on juries, one a grad student who lived in the mountains and the other a freshman who lived at home so was registered to vote and registered a car at his home address. For the rest of students, they usually moved before their names could be put on the jury rolls.
Our juries in liberal, hippie Boulder tended to be small business owners, housewives, IBM or Ball Aerospace engineers, county land owners. Pretty conservative. Juries aren’t composed of people who have no opinion about the subject (frats, college kids, rape, reporters, newspapers) but of people who have sworn they can follow the instructions and be unbiased in their verdict. No one likes rape or drunk driving or murder, but people on those juries have said they will listen to the evidence and follow the jury instructions, apply the law to the fact, and make a decision.
Here’s a question. Did the Columbia report show recklessness by RS?
I think RS will settle first due to the Columbia report being out there. I doubt they want discovery to happen in this case and the prior writing by the reporter. Remember we don’t know everything that RS did in this story, but only what they let Columbia see. RS is of course saying they let Columbia see everything (except that which was lawyer/client privilege) but is that the truth?
Discovery into the fraternity members will probably show they were boorish and immature like other young men their age. This could also be more embarrassing for the university if the fraternity can show the percentage of underage drinking violations and reported campus sexual assaults are higher among the regular students than fraternities.
@xiggi, if the plaintiffs are found in fact to not be public figures, then the burden of proof set to establish that Rolling Stone should be held liable is negligence. If the plaintiffs are found to be public figures, then to show liability they will have to prove that Rolling Stone acted in reckless disregard of the truth. That is a different issue than the issue of proving damages. Once the plaintiff establishes liability, then the question becomes can they show harm. I think the point Hunt was raising deals with that second aspect and is that since the article was widely debunked early on, and that there has been a great deal of publicity on this debacle that whatever reputational harm the fraternity chapter or the members suffered has been muted. That is a different argument than saying that this fraternity specifically or fraternities in general have a poor reputation and therefore it shouldn’t matter much that they were accused of being rapists. The first argument I get, and while it will require deftness before a jury, I think can be made by a good trial lawyer and can be used to try and control damages without completely gutting the liability defense. The second argument I disagree with because it is not logically consistent with challenging liability and is very, very risky.
The story blew apart after about two weeks. Nobody knows anybody in the frat. The accuser said she wasn’t sure which frat. Very few people know the name of the frat. The frat attracted males who wanted to join this year.
I am sitting on the jury. I don’t see any long term damages to the frat or anybody in the frat based on the article.
I agree with Hunt. The fraternity was damaged by the negligence of Arabs, but it’s to neither side’s advantage to go to trial. A moderate, secret settlement will be reached.
Hopefully there IS no long term damage. But there is well documented damage to the fraternity and its’members (having to leave the fraternity, death threats,etc.) as a diirect result of this article. I doubt seriously that Erdeley and her editors would take it lying down if they were harassed and forced out of their homes . There should be at least some settlement and damages awarded.
@dstark, big damages are either long term/permanent or intense. If the reporting is to be believed, there were death threats made to the brothers on social media, people were expelled, the frat was kicked off campus, etc., etc. Think of it like someone who is the victim of a mugging or the like. People who suffer an intense trauma commonly suffer long term effects that are often the predicate to a damage award. In addition, if they can find some brothers who can testify that the issue was brought up in job interviews, then it will allow people to conclude that there was some potential then maybe they can blackboard some potential long term economic consequences as well.
This is one of the biggest defamation cases I have ever heard of. It was national news for weeks, Virginia news for the entire winter. I cannot think of another case in which a national ‘news’ organization printed such a huge lie that garnered such attention. Perhaps the last was the one Dan Rather had to resign over and that was against a public figure (Bush) so no defamation suit was filed. That was 15 years ago.
Grades could have suffered, mental health could have been effected, job searches could have been compromised or put on hold during this period after the article came out. I am not a litigious person but if I had a son that had been caught up in something like this, I would be livid and would support an effort to go after Rolliing Stone and Erdeley for damages.
@Ohiodad51, There may have been death threats in social media. Who was expelled? Nobody, right?
The frat wasn’t kicked off campus. There was a suspension which has been rescinded.
Heck, Jesse Ventura was awarded 1.8 million. Who here knows (without looking it up) what Kyle accused him of? I had never heard of the alleged defamation until the verdict. It wasn’t defamation but it is reported (Vanity Fair) that each of the three Duke lacrosse players got $20 million from Duke for their treatment after being falsely accused. And while these fraternity members weren’t individually identified like the Duke lacrosse players, the figures could easily be in the millions since RS did no investigation.
My gut tells me that the men in this frat will get a multi-million dollar settlement. RS will not even fight it.
dstark, fraternity members had to vacate their home, which was the fraternity house. One of my sons was in a fraternity and lived in his fraternity house for two years. That was his home. Would YOU want to feel forced out of YOUR home as the result of some bogus allegations? I can’t tell if you’re being sarcastic or not but the whole thing really is no laughing matter.
@dstark, actually I am a defense lawyer, so you sound like my kind of juror The problem with cases like this from a defense perspective is that you have bad facts, and a likely unsympathetic defendant. Add to that that there is no natural cap on damages, and it becomes hard to really evaluate your risk. Could you walk out with damages in the low six figures, yep. But if you get a couple angry jurors, you could be in the high sevens too. Of course, that same logic applies on the plaintiff’s side as well, which is why I think the case settles. If the case does get tried, and I had Rolling Stone I would try for something called a hi lo, which is a private agreement among the parties that regardless of verdict, the plaintiff would get between say 100k and 1m. If the award lands between those two numbers, that is what gets paid. If it is over, the plaintiff takes 1m, and if it is a defense verdict or nominal award, then the plaintiff get 100k. Such agreements are uncommon, and some states won’t allow them, but in the right case they can be helpful.
I don’t think either side is sympathetic, as far as jurors are concerned. Rolling Stone screwed up, clearly. OTOH, nobody who was in a fraternity or had a family member in a fraternity would be sitting on that jury, because the defense attorneys are not idiots, and fraternities’ reputation among people not connected to fraternities is not very high. The case will settle.
^^^^
That “hi lo” proposal seems like a pretty raw deal for the fraternities. Wouldn’t one of their objectives in litigating this matter be to send a strong message that fraternities are not going to take these sort of things lying down? I would think trying the case is what they are going to want to do, no matter what.
If they lose or get a nominal amount, at least they have signaled that people better be prepared to spend $ on legal costs because they will go after you. But putting a cap of a million on that jury award? What it their incentive to agree to that deal? Why not just go for broke? They are pretty well funded and I am not sure that the monetary award here would really be their sole objective.
I was just using random numbers. And the reason a hi lo would work here is exactly because the frat may want to try the case to make a point. The hi lo wouldn’t be disclosed to the jury, and it guarantees that some money gets into the pockets of the guys who went through this, while also ensuring that the lawyers get paid, which as we all know is the most important part.
@cardinal fang, each side only gets three challenges not based on cause, so I wouldn’t count on being able to exclude everyone who was in a frat from the jury pool. Now, they can probably exclude for cause everybody who thinks that women who go to frat parties deserve whatever they get, the same as the plaintiff will try and exclude everyone who thinks that frat’s reps are so bad it doesn’t matter what you say about them. But you won’t be able to just get everyone who was in a frat off.
