Rolling Stone thought it was finally in the clear, after the magazine came to a financial agreement with University of Virginia administrator Nicole Eramo, settling her defamation lawsuit over an article that accused her and others at UVA of ignoring a student’s gang rape.
But just as the publication goes on the market, a Federal appeals court has announced the UVA fraternity Rolling Stone reporter Sabrina Rubin Erdely accused of committing the gang rape can go ahead with their own defamation lawsuit against both the magazine and Erdely herself.
Rolling Stone has faced several lawsuits over the infamous (and now-retracted) article, which claims a student named “Jackie” was invited to a party at UVA fraternity Phi Kappa Psi, only to be dragged into an upstairs bedroom, beaten, thrown through a glass table, and then repeatedly raped as part of a bizarre PKP hazing ceremony. The story chronicled Jackie’s heart-rending, terrifying, and ultimately unsuccessful attempts to get UVA administrators to punish the frat – or even acknowledge her story.
It turned out, however, that Jackie’s story was almost certainly fabricated from whole cloth. In depositions, Erdely admits she didn’t fact-check Jackie’s story, or even interview key named witnesses – she merely took Jackie and UVA’s campus anti-rape activists at their word.
Back in 2016, members of Phi Kappa Psi, who say the Rolling Stone story identifies them as Jackie’s attackers, sued the magazine for defamation. But a lower court dismissed the suit, claiming that “the article’s details about the attackers are too vague and remote from the plaintiffs’ circumstances to be ‘of and concerning’ them.”
Late Monday, the Second Circuit Court of Appeals said they disagreed.
“[W]hile it is a close call, we conclude on balance that the complaint plausibly alleged that the purportedly defamatory statements in the Article were ‘of and concerning’ Elias and Fowler individually,” she writes .”At this stage of the litigation, Plaintiffs need only plead sufficient facts to make it plausible—not probable or even reasonably likely—that a reader familiar with each Plaintiff would identify him as the subject of the statements at issue. With regard to the Article, Elias and Fowler have met this burden.”
One of the frat brothers, “Elias,” was known to live on the frat’s second floor, and had the only bedroom in the house large enough to accommodate Jackie’s made-up gang rape. “Fowler” says he was the man Jackie identified as her “crush,” the one she says invited her to the frat party, and the man she claims led her upstairs to the “hazing.” He, the court says, gets the benefit of the doubt: he doesn’t match Jackie’s description to a tee, but he was the frat’s Rush Chair, and Jackie described her crush as a swimmer – and he’s the only swimmer in the frat.
A dismissal, against one final member of PKP, did stand. the court said “Hadford” was the only biking member of the frat, but that Jackie’s description of one of the frat members “riding a bike around” campus grounds wasn’t sufficient to identify Hadford.
The Court did suggest, however, that there’s a claim for “group defamation:” the whole UVA PKP fraternity may have a claim, since they were both identified in the story and suffered damages.
“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. Indeed, Erdely suggested such an interpretation in her Podcast interview.”
This decision, no doubt, comes as a major disappointment to Rolling Stone and its founder Jann Wenner, who probably hoped to recoup some of the nearly $2 million loss the magazine suffered as a result of the bad article. In several months, they may owe more – and it’s probably certain that no possible buyer will want to take on that liability, either.