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The Basics of Libel Law in the Lena Dunham Case

In her memoir Not That Kind of Girl, Lena Dunham claims she was “raped by a Republican” named Barry, the college’s “resident conservative,” when she was a student at Oberlin College. Her story started falling apart when John Nolte of Breitbart conducted a month-long investigation at Oberlin College to try to substantiate her claim. Nolte was unable to do so, and concluded: “Under scrutiny, Dunham’s rape story didn’t just fall apart; it evaporated into pixie dust and blew away.”

Although she never gives Barry’s full name, Dunham apparently provided enough details in her memoir to make “Barry” easily identifiable to everyone who was on the campus at the same time she was. As Powerline attorney John Hinderaker says, “if you Google for 15 seconds you can find out” who “Barry” is, because there was only one active Republican at the campus named Barry.

Nolte’s investigation found that the facts asserted by Dunham “do not point back at him. Not even close. This man is by all accounts (including his own) innocent.”

“Barry One,” as Breitbart has termed him, started a legal defense fund to cover the legal costs he has already incurred and for “potentially pursuing Lena Dunham and Penguin Random House” in a libel suit. Apparently, his lawyer had been trying unsuccessfully since Oct. 6 to get a statement from Dunham clearing Barry.

UCLA School of Law Prof. Eugene Volokh and Hinderaker are both correct that Barry One has a credible libel case against Dunham.

The heart of a libel suit is injury to one’s reputation, and there is no question that false charges of rape and sexual assault damage one’s reputation and lead to grave societal and economic costs (Barry One says he has “already spent a substantial portion of his savings on legal fees”).

As Volokh summarizes, the fact that Dunham didn’t identify Barry by his full name is not an obstacle to a successful libel suit. The Restatement (Second) of Torts, a law treatise that every law student becomes familiar with in the first year of law school, specifically says that “it is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.” Dunham’s description of Barry would seem to meet that standard.

So if the investigation conducted by Breitbart is correct, if easily-identifiable-Barry is innocent, and if Dunham continues to refuse to issue a retraction of her rape claim, then Dunham and her publisher are wide open to a libel lawsuit. And unlike Dunham, Barry is not a “public figure.” He won’t have to prove that Dunham or Random House knew what they published was false — just that it was false.

The smartest thing Dunham could do is quit ignoring Barry One’s lawyer and issue a retraction that specifically clears Barry, “the resident conservative” of Oberlin College. Apparently, that is finally going to happen — at least to some extent. 

According to The Hollywood Reporter, after basically ignoring Barry and his lawyer for two months, lawyers for Dunham have said that future printings of her book will come with a disclaimer that “Barry” is “not the real name of the man who raped Dunham.” And Random House has said that it will pay the legal fees that Barry One has incurred to date.

It is too bad that it took threats of legal action and the establishment of a legal defense fund to make Dunham, her lawyers, and Random House finally do the right thing. It would be even better — and more appropriate — for Dunham to issue a personal apology to the man whose reputation and life she was in the process of ruining.

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