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The Yale Women’s Center’s message to Zeta Psi was clear: “Lawyer up.” But the legal merits of a possible sexual-harassment case against the fraternity are much less clear, several legal experts told the News on Tuesday.After a picture of the fraternity’s pledge class standing in front of the Center with a sign that read “We Love Yale Sluts” surfaced on the Internet over the weekend, the Center board said Monday that it has contacted two lawyers, who tentatively agreed to work on the case pro bono.
While charges of harassment connected to the physical blocking of the Center door are more likely to stand up in court, members of the board would have a harder time proving the pledges committed defamation by holding up the sign, experts said. But before it gets that far, Zeta Psi is looking to repair its image by participating in or hosting events in support of women at Yale.
Members of the Center wrote “This Time We Sue” in the tagline of an e-mail denouncing the photo they sent out on various panlists Sunday. But so far the Center has taken no legal action beyond contacting lawyers, Chase Olivarius-McAllister ’09, the Center’s former political-action coordinator, said.
“Wait for us to file a suit before deciding on the merits of the case,” she said.
Defamation law requires a specific targeted individual, said Eugene Volokh, a law professor at the University of California, Los Angeles. But it would be hard to name individuals who were defamed by a poster like the one featured in the photo, he said.
Even if a target could be identified, courts would treat the term “slut” as a word that expresses an opinion and is therefore difficult to define legally, Volokh said.
“The idea of group defamation doesn’t exist in American law,” explained Yale Law School professor Robert Post. “The idea of defaming women in general is not a cause of action in the U.S.”
Susan Estrich, a professor at the University of Southern California’s Gould School of Law, said she does not think the Center would have a case against the students for holding up the sign.
“There’s no law I’m familiar with that says you can’t stand out front with stupid signs,” she said. “They just engaged in speech that people found offensive.”
She suggested another course of action she says would be more consistent with the First Amendment: more speech.
“Maybe somebody should go over to the fraternity house and put up signs that say ‘We Love Yale Fools,’” she said. “I hope the women of Yale are smart enough and strong enough and clever enough to give as good as they get and realize that free speech is a value and not get mad but get even.”
But Estrich said blocking the entrance to the Center could be more serious legally. On the second count, harassment, the Center may have a stronger — but still far from knock-down — case, experts said.
“It’s right in the gray area of ‘Is this protected speech, or is this harassment?’” Deborah Rhode ’74 LAW ’77, a professor of law at Stanford, said.
Rhode said the pledges’ presence at the Center — which one member has alleged deterred her from entering and which could reasonably be construed as creating a “hostile and intimidating environment” — is legally much more significant than the photograph itself. But there exists an obvious tension with the First Amendment when someone sues for this kind of offensive speech, she said.
Volokh said the harassment claim faces a similar problem — identifying the victims, who in this case could include the Center itself and the woman who was allegedly prevented from entering. Either way, sexual harassment suits usually have to prove a pattern of “severe and pervasive” behavior, which the one-time incident would not constitute, Volokh said.
Courts have generally been more permissive of speech on college campuses, Volokh said, as long as it holds up under a number of tests. Along with a few other circumstances, speech is unprotected when it has the imminent potential to incite illegal conduct, when it is likely to be perceived as a threat of a crime, and when it is libelous, he said.
Whether a suit is ever filed or not, the brothers of Zeta Psi are focused on their trial in the court of public opinion.
“We’re all terribly sorry, and at that moment we didn’t actually think that Yale girls are sluts,” a student pictured in the photograph said. “Obviously it was inappropriate, and obviously we shouldn’t have done anything. At the moment, you don’t think.”
He said the fraternity is planning a public-relations initiative to mend its damaged reputation, with brothers brainstorming ways to reach out to the community.
“We actually have a meeting tomorrow with all the brothers, and everyone’s supposed to bring an idea of how to help restore our image,” the student said. “Everybody’s excited to help out because everybody’s very sorry. It was a stupid moment, a stupid thing.”
The chapter’s president, Jon Charest ’10, would not comment on the content of weekly chapter meetings. But he said the fraternity hopes to do “something to support the female community at Yale.”
Charest said Zeta Psi has not yet been contacted by the Women’s Center. Olivarius-McAllister declined to comment on whether the Center had been contacted.