When U.S. News asked me last year to comment on Phi Kappa Psi’s plans for a defamation lawsuit against Rolling Stone, I responded that one of the first obstacles the fraternity would have to overcome would be to persuade the court that the article was “of and concerning” PKP as an institution and that it was not just about the individual perpetrators. The “of and concerning” test refers to the principle that a person suing for defamation needs to demonstrate that the defamatory words at issue referred to him or her (or it) specifically, either directly or by implication. That obstacle has now been overcome, as Judge Richard E. Moore of the Charlottesville Circuit Court has ruled that the article is reasonably capable of being interpreted as conveying defamatory allegations against Phi Kappa Psi. He overruled Rolling Stone’s demurrer and has allowed the case to proceed. It will ultimately be up to the fact-finder to determine whether the article is defamatory with respect to the fraternity.
Under Virginia law, a complaint for defamation must show on its face that the alleged defamatory statements are “of and concerning” the plaintiff. A plaintiff satisfies the “of or concerning” test if he shows that the statement was intended to refer to him specifically and would be so understood by persons reading it who knew him. Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985). Whether a statement may reasonably be interpreted as “of and concerning” a plaintiff is a question of law to be decided by the court. If a statement cannot be so interpreted in the opinion of the judge, the case will be dismissed at the outset. But if the court finds a reasonable jury could conclude that the defamatory statement relates to the plaintiff, the court will allow the case to proceed to trial. That is what has happened in the Phi Kappa Psi case.
The facts of this case have been widely reported. Essentially, Rolling Stone published an article in 2014 titled, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” which recounted the story of a University of Virginia student named “Jackie” who claimed she had been raped at a Phi Kappa Psi house party. Shortly after the article was published, Rolling Stone concluded Jackie’s story was not credible and it published a retraction. Multiple defamation lawsuits followed, including suits by UVA associate dean Nicole Eramo, three former members of Phi Kappa Psi, and Phi Kappa Psi itself.
To survive demurrer, Phi Kappa Psi had to convince the court that the article in question cast the fraternity itself in a defamatory light, and not just the individuals who were falsely accused of rape. This is a little more complicated than it sounds, because it’s not enough that the article involves Phi Kappa Psi in some way; the article must make a false statement about the fraternity (expressly or impliedly) that would tend to harm its reputation or deter readers from associating with it. After examining the allegations in the complaint, the court found that the Rolling Stone article did cast the fraternity in a defamatory light. Here are some of its key observations:
- Phi Kappa Psi at UVA is mentioned in the Rolling Stone article at least 18 times by name.
- There are at least nine other references to “that fraternity”, “a frat”, “the fraternity”, etc. that refer to Phi Kappa Psi.
- Phi Kappa Psi is mentioned “not just as the location of the alleged offense, but as the actual offender, the ‘adversary’ who must be proceeded against.”
- The term “gang rape” is used at least eight times, many in the same phrase or sentence as Phi Kappa Psi or its variations (including a reference to “Phi Kappa Psi gang rape victims”).
- The complaint recounts a moment when one individual apparently is reluctant to participate in the assault and another says, “Don’t you want to be a brother? We ALL had to do it.”
This last observation is what really seals the deal in my mind. If the Rolling Stone article falsely suggested that Phi Kappa Psi actually requires its pledges to commit sexual assault, the statement is unquestionably “of and concerning” the fraternity. Without this, the mere number of references to Phi Kappa Psi wouldn’t matter much. The question is whether the defamatory sting of the article would affect Phi Kappa Psi’s reputation. And I believe the court concluded correctly that it does.
Phi Kappa Psi’s complaint survived demurrer because, taking the factual allegations of the complaint as true, Rolling Stone made false and defamatory statements about PKP that would tend to lower it in the estimation of the community. The result would likely have been different if the article had stated that a rape was committed by members of a different fraternity who just happened to commit their crime on property owned by Phi Kappa Psi. Here, by contrast, the court recognized that Phi Kappa Psi wasn’t described simply as the location of a crime, but as a “bad egg” that must be proceeded against.
Judge Moore summarized the basis for his overruling the demurrer nicely when he wrote, “the fraternity itself is repeatedly identified and mentioned, and there are facts from which it can be reasonably inferred that the fraternity approved, condoned, supported, and even encouraged or facilitated such actions of the various unnamed or unknown (or nonexistent) individuals.”