This key question will determine whether a UVA frat can successfully sue Rolling Stone
The outcome of any libel lawsuit filed by UVA's Phi Kappa Psi chapter could depend on whether the fraternity is considered a private individual or a public entity, according to David Ardia, a professor at the University of North Carolina law school and co-directory of the UNC Center for Media Law and Policy.
In Rolling Stone's original article on sexual assault at the university, UVA student "Jackie" told the magazine she was gang-raped during a date party on Sept. 28, 2012, at the campus' Phi Kappa Psi fraternity house. Much - if not all - of Jackie's story has since been disproved by media reports, a police investigation, and a report by Columbia Journalism School that Rolling Stone published earlier this month.
Ardia doesn't know any cases nationally that have determined whether a fraternity is private or public - a distinction that significantly changes the burden of proof in a potential libel lawsuit. It's much easier for a private individual to succeed in a libel suit than a public figure like a movie star or a US senator.
If Phi Psi is considered a private entity, the fraternity will have a much lower burden of proof in its case.
When plaintiffs are categorized as public figures, they have to prove "actual malice" - that the defendant knew the information was false when they published it or published it with "reckless disregard" for the truth. Because this is such a hard standard to meet, public figures rarely win their cases, according to Ardia.
However, if a private figure brings a libel case, then they just have to prove the media outlet was negligent. As Ardia explained, rather than proving "actual malice," a private figure's case is based on the standard of whether a "reasonable person" would have published that statement.
If UVA's Phi Psi chapter is designated a private figure, it could have a legitimate chance of winning its case, according to Ardia.
The fraternity may have an especially strong case, according to Ardia, due to an investigative report into Rolling Stone's reporting and editorial decisions that was conducted by Columbia Journalism School.
"There's certainly enough here that we know from the [Columbia] report to allow a jury to find that there was negligence and that this fell below the standard that a reasonable person would have engaged in at the time when the story was published," he said. "That's a much easier standard to prove."
"This case is somewhat special because you have this searching, detailed investigation that would be very valuable for any plaintiff in this case," he said.
Most libel suits get dismissed by a judge in the early stages of the case, Ardia explained, but the Columbia report points to enough evidence to at least get the fraternity's case to a jury and "past all of the pre-trial hurdles."
Columbia's review may prove to be a double-edged sword for Rolling Stone, according to Ardia.
"The ethics of journalism is to admit when you made a mistake, and Rolling Stone has done something quite laudable by getting this report done in the first place and then sharing it," he said.
On the other hand, Ardia said, admitting its faults may make the Rolling Stone case more difficult to defend in court. "They have made a bed," he said, "that's going to be very difficult to sleep in."
Rolling Stone has previously declined to comment on the fraternity's plans to sue. We reached out to the magazine again for comment and will update this post if we hear back.