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Defamation suit against Rolling Stone reinstated by appeals court

Former members of Phi Kappa Psi fraternity house

Former members of Phi Kappa Psi fraternity house brought a defamation suit against Rolling Stone Magazine. Photo Credit: Getty Images / Jay Paul

A federal appeals court in Manhattan reinstated a defamation case by three former fraternity members at the University of Virginia against Rolling Stone magazine and the author of a bogus story about campus rape at the school.

The Second U.S. Circuit Court of Appeals said Tuesday Rolling Stone’s 2014 report on fabricated allegations from a woman it called “Jackie” effectively identified two of the men, though it didn’t name them, and defamed all three as part of a “small group” by naming their Phi Kappa Psi fraternity.

“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 court said.

Rolling Stone, which was just put up for sale by longtime owner Jann Wenner, had previously settled suits brought by the fraternity itself and a university administrator. In a statement, the magazine said it was “disappointed” by the appeals ruling, but still “confident’’ the ex-students’ case had no merit.

The fraternity members’ lawsuit against Rolling Stone and author Sabrina Erdely was dismissed by a trial judge in Manhattan federal court on the grounds the article didn’t actually name anyone involved in an alleged gang rape of “Jackie” by nine men in July 2012.

But the Second Circuit said a jury might conclude plaintiff George Elias was identifiable because his bedroom was the only one in the fraternity house that fit Rolling Stone’s description of where the fabricated gang rape occurred, and plaintiff Ross Fowler was a swimmer who organized initiations at Phi Kappa Psi.

That loosely fit “Jackie’s” description of her date as a lifeguard and the rape as part of an initiation, the court said. But the judges rejected claims from a third man, Stephen Hadford, whose only link was that he rode a bike on campus and “Jackie” said she saw one of her assailants later biking.

By a 2-1 majority, the panel also approved an alternative theory under which all three men could pursue their suit — that the small size of the 53-member fraternity and the sweeping allegations effectively defamed everyone by recounting claims that other women had been raped there and claiming a “decades-long” trail of sexual violence at the frat house.

“Connecting the dots, a reader could plausibly conclude that Phi Kappa Psi had a long tradition of requiring pledges to participate in gang rapes as a condition of membership,” said Judges Jose Cabranes and Katherine Forrest.

Judge Raymond Lohier, the third member of the panel, disputed that conclusion, arguing the opinion expanded the concept of “small group defamation” beyond what had been recognized in New York, and warning that all fraternity members might now sue Rolling Stone.

“Interpreting the article to mean that all members of the fraternity were either aware of or committed acts of rape warps the language beyond its plausible meaning and surrounding context,” Lohier wrote.


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