News + Insights from the Legal Team at Zalkind Duncan & Bernstein

What do Rolling Stone, Harvey Weinstein, and Bill Cosby have in common? The law of defamation.

The last two years have been exceptionally active for defamation cases in matters involving allegations of sexual harassment or assault. Just during the last week, for example, a lawyer for Harvey Weinstein announced that he intends to sue the New York Times following an explosive story alleging he has sexually harassed actresses and workers at his company for years. (That story was quickly followed by an even more damning story in The New Yorker; that story’s author, Ronan Farrow, reports that Weinstein has also threatened him with suit.) In cases involving the same legal principles and similar allegations—but the opposite party alignment—a number of Bill Cosby’s accusers are suing him for statements that they say paint them as liars (and at least one such suit has been allowed to move forward, though two others have been dismissed; the judge overseeing the cases drew a distinction between statements that disputed an accuser’s credibility based on disclosed, non-defamatory facts, and statements that implied the existence of non-disclosed defamatory facts). And a disastrously poorly fact-checked story published in Rolling Stone about an alleged rape at the University of Virginia has spawned a series of lawsuits and, most recently, an interesting opinion by the Second Circuit Court of Appeals concerning the viability of a lawsuit by UVA students who claimed that the article defamed them.

In the Rolling Stone article, since retracted, the magazine presented “a detailed account of an alleged violent gang rape” perpetrated at the Phi Kappa Psi fraternity house at the University of Virginia by “seven male participants and two male onlookers.” The article also detailed alleged deficiencies in the University’s response to the rape. The account proved to be, as the Second Circuit puts it, “fabricated.” Following the article’s publication, a former UVA associate dean—depicted in the article as discouraging the victim from reporting her alleged assault—sued its author and the magazine for defamation; her case went to trial and resulted in a three million dollar verdict. Separately, a group of undergraduate students and members of the fraternity sued, alleging that the article (and a related podcast) had defamed them by identifying them individually as supposed participants in the rape and collectively as members of a group of Phi Kappa Psi brothers at the time of the supposed rape.

The District Court judge who first heard the case granted a motion to dismiss, finding that the plaintiffs had not been specifically enough identified in the article to have grounds to sue; the plaintiffs appealed, and the Second Circuit has now reinstated the claims of two of the students who claimed that the article specifically identified them individually, and of the group, on the grounds that all Plaintiffs were defamed as members of the fraternity.

Under the law of New York (applicable to that case) defamation involves: “(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm.” (Defamation is a state law claim, but most states formulate it similarly.) The false statement must be about the plaintiff, not another person or someone unidentifiable. The Second Circuit concluded that while the article did not actually identify any individual student by name or even by a very specific description as being among the purported rapists, the details that it did provide were sufficient to lead readers to identify two of the three plaintiffs as likely being among them. In addition—and more significantly—the court also found that the article defamed members of the fraternity during the period in question as a group. The court stated: “Taking the allegations in the Article together, a reader could plausibly conclude that many or all fraternity members participated in alleged gang rape as an initiation ritual and all members knowingly turned a blind eye to the brutal crimes.”

The most obvious lesson of the Rolling Stone/UVA article debacle is that journalists should carefully fact-check stories before publishing them—particularly where the stories are likely to prove almost inexpressibly damaging to the reputations of those they accuse. But a second lesson is that simply not naming or providing a detailed description of a person accused of wrongdoing will not shield the author of such an accusation from a defamation claim. In at least limited circumstances, the Second Circuit has indicated that individuals who are mistakenly or falsely identified as rapists or criminals may be able to bring claims for defamation, even where their accusers never specifically identified them. That said, the Rolling Stone article and its aftermath presented an unusually dramatic set of circumstances. It remains to be seen whether courts will apply a similar analysis in circumstances where accusations are less widely publicized, less sensational, or less clearly false.

If you have been accused of sexual assault or harassment and are facing disciplinary action by your school, or if you have already been subjected to discipline for allegedly violating the school’s sexual misconduct policy, the Title IX lawyers at Zalkind Duncan & Bernstein LLP can help you navigate your school’s disciplinary and appeals processes, and advocate for your rights to fair treatment. Call us at (617) 742-6020 to speak with an attorney, or contact us here.

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