The Second Circuit rerolls the “Stone”

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Just when the publishers of Rolling Stone thought everything had been put behind them and they could move on, the United States Court of Appeals for the Second Circuit re–opened a defamation case that will make the magazine answer to three former University of Virginia fraternity brothers. The ruling in the suit came at a particularly poor time for Rolling Stone founder Jann Wenner and his media company, Wenner Music, as they announced just two days prior that the magazine was up for sale.

The case began in 2014 when Rolling Stone published an article about a brutal gang–rape that allegedly took place in the Phi Kappa Psi fraternity house at the University of Virginia. The article, entitled “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” depicted the alleged rape–victim’s vivid account, detailing the room in which she claimed she was raped and the various characteristics of her alleged rapists.

The author of the article, Sabrina Rubin Erdely, was a well-renowned author at Rolling Stone and specialized in true–crime stories, such as “The Gangster Princess of Beverly Hills,” about a Korean model accused of smuggling 7,000 pounds of marijuana. Erdely has also written extensively about transgender issues, pedophile priests, and sexual assault in the military. Thus, it came at no surprise when Erdely decided that her next topic of discussion in 2014 would be about rape culture on college campuses.

Erdely began her quest for the perfect story by telephoning Emily Renda, who worked on sexual assault issues at the University of Virginia and was also a rape survivor herself. Renda then put Erdely in contact with a junior at UVA who reported being gang–raped by pledges of a fraternity before rush. In emails and telephone conversations, all recorded by Erdely, the student, who would later be known in the article as “Jackie,” talked about meeting a lifeguard at the university’s aquatic center and being invited to a party at his fraternity house. That night, Jackie was lured into his bedroom where several other boys were hiding. After the lifeguard shut the door, Jackie claimed she was attacked and even punched in the face before seven boys raped her one by one.

In the beginning, Erdely believed Jackie to be reliable. Not only was she referred by a staff member of the university, but she told her story in a consistent, thorough fashion. Yet as the publication date of the article approached, Jackie became increasingly difficult to reach. Moreover, she never revealed the name of the lifeguard that allegedly orchestrated the whole night. Despite these red flags, Rolling Stone’s editors allowed the article to move forward without even verifying the lifeguard’s existence. After that concession, Jackie became fully cooperative until publication.

“A Rape of Campus: A Brutal Assault and Struggle for Justice at UVA” was published on November 19, 2014, and became an instant hit, with the online version attracting more than 2.7 million views; however, about a week later, Erdely had another telephone conversation with Jackie that caused her to have serious doubts about the credibility of her story. When Erdely finally convinced Jackie to disclose the name of the lifeguard responsible for her rape, Jackie was unable to spell his last name. Erdely then tried to investigate the name Jackie had provided but was unable to connect him to the university’s aquatic center, Phi Kappa Psi fraternity, or Jackie whatsoever. Erdely also learned that other journalists, including a reporter at the Washington Post, were criticizing her work due to a lack of factual basis. After losing confidence in the truth of her article, Rolling Stone published an editor’s note retracting Jackie’s story of being gang–raped at the University of Virginia.

[T]he Charlottesville police department conducted a four–month investigation into the matter and determined that it had “exhausted all investigative leads” in coming to its conclusion that “there is no substantive basis to support the account alleged in the Rolling Stone article.”

According to a report by the head of Columbia University’s graduate school of journalism, several lapses on Rolling Stone’s part led to the “systematic failing” of the magazine’s reporting and editing process. The most egregious misstep, the report identified, was Rolling Stone’s failure to corroborate Jackie’s account by reaching out to the university or fraternity and allowing them to explain or provide additional information. The lack of authentication became more apparent after the Charlottesville police department conducted a four–month investigation into the matter and determined that it had “exhausted all investigative leads” in coming to its conclusion that “there is no substantive basis to support the account alleged in the Rolling Stone article.” In addition, the university could not find proof of the existence of a student with the name Jackie gave for her alleged assailant, and the fraternity claimed it did not have a party on the night of the supposed attack.

Teresa Sullivan, then president of the University of Virginia, issued a statement responding to the Columbia report, saying Erdely’s original article “did nothing to combat sexual violence,” “damaged serious efforts to address the issue,” and “unjustly damaged the reputations of many innocent individuals and the University of Virginia.” As Stephen Scipione, then chapter president of UVA’s Phi Kappa Psi fraternity, put it, “It’s completely destroyed a semester of our lives, specifically mine. It’s put us in the worst position possible in our community here, in front of our peers, and in the classroom.”

With so much criticism toward the article and little factual basis to support it, it was inevitable that Rolling Stone would receive some form of backlash from those it affected. Former associate dean of the University of Virginia, Nicole Eramo, who was named in the article, sued the magazine for $1 million and Erdely for $2 million on defamation grounds. On appeal, the parties settled for $1.65 million.

[T]hree members of Phi Kappa Psi at UVA filed a different defamation suit against the magazine, its publishers, and Erdely.

In addition to the former dean’s lawsuit, three members of Phi Kappa Psi at UVA filed a different defamation suit against the magazine, its publishers, and Erdely. George Elias IV, Stephen Hadford, and Ross Fowler, although not identified by name in the article, claim the article amounted to “small group defamation” against every brother in the fraternity at that time. Furthermore, Elias, Hadford, and Fowler all claimed that details in the article could lead people that knew them to conclude that the article was about them individually.

In particular, Elias lived in a room in the fraternity house fitting the article’s description of the bedroom where the alleged gang–-rape occurred. For Fowler, who was the rush chair for the fraternity and also frequented the university’s aquatic center, the fact that Jackie said she was invited to the fraternity party by a lifeguard at the pool and that the gang–rape was part of the fraternity’s initiation process seemed to point some of the guilt to him. Lastly, Hadford claimed that his identity could also be ascertained from the article because Jackie said that she saw one of her alleged rapist riding his bike on campus and Hadford typically rode his bike to class.

The United States District Court for the District of New York held that the three fraternity brothers had not shown that the article was “of and concerning” them personally, and ultimately dismissed their claim. Their case was revived, at least in part, when the United State Court of Appeals for the Second Circuit overturned the lower court’s decision, noting that it was a “close call,” but nonetheless worthy of moving forward in the proceedings.

For defamation claims, plaintiffs only need to plead sufficient facts to make it plausible—as opposed to probable or reasonably likely—that a reader familiar with each plaintiff would identify him as the subject of the article. While Elias and Fowler’s pleadings were deemed sufficient to survive scrutiny, Judge Katherine Forrest, writing on behalf of the appellate court, affirmed the lower court’s dismissal of Hadford’s claim.

In a 2-1 decision, the appellate court also reversed the lower court’s rejection of the small group defamation claim. “Taking the allegations in the [a]rticle together, a reader could plausibly conclude that many or all fraternity members participated in [the] alleged gang rape as an initiation ritual and all members knowingly turned a blind eye to the brutal crimes.” In coming to that conclusion, Judge Forrest wrote, “Consider first the description of Jackie’s purported rape. Not only did nine men associated with the fraternity participate in the alleged offense, but several made comments — ‘Don’t you want to be a brother?’ and ‘We all had to do it, so you do, too’ — implying the event was part of an initiation ritual.”

Moving forward with trial will presumably continue with the discovery phase, which will inevitably call Rolling Stone’s ethical considerations back into question. Perhaps even more perilous for the magazine is the effect litigation will have on its ability to sell. In previous years, Rolling Stone owner Jann Wenner bragged of receiving a $500 million offer for the magazine. Since then, he’s sold 49 percent of the company to Singapore–based BandLab Technologies. Now, Wenner’s 51 percent stake is likely worth far less, and with litigation back on track, that number can be reduced further.

In response to the revival of the defamation case, Wenner stated, “We are disappointed with the Second Circuit’s ruling today, but are confident that this case has no merit.” Given the magazine’s decision to retract the debunked article, the magazine’s ethical lashing from other journalism sources, and Judge Forrest’s straightforward interpretation of the case, perhaps Wenner’s confidence is a little misplaced.