The United States Court of Appeals for the Second Circuit has reinstated the defamation lawsuit against Rolling Stone by the Phi Kappa Psi fraternity. The decision by Judge Katherine Forrest is an interesting application of the rarely successful “group defamation” claim. The decision comes as the Rolling Stone magazine itself has been put up for sale. As I have previously written, the editors failed on almost every level in the scandal, including failing to fire author Sabrina Erdely for the article alleging the gang rape of a freshman identified as “Jackie” at the University of Virginia. The panel in Elias v. Rolling Stone, 16-2465-cv, consisted of U.S. Circuit Judges José Alberto Cabranes and Raymond Lohier Jr., with U.S. District Judge Katherine Forrest of the Southern District of New York sitting by designation. The vote was 2-1.
The lawsuit brought by members of Phi Kappa Psi was dismissed in 2016 by U.S. District Judge Kevin Castel who viewed the defamation associated with the fraternity to be “too vague and remote from the plaintiffs’ circumstances to be ‘of and concerning’ them.” However, the Second Circuit found that a group defamation claim was valid for two of the three fraternity members: George Elias and Ross Fowler while rejecting the claim of Stephen Hadford.
One of the best known group defamation cases occurred in 1952 in Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end story sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the store and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.
Courts consider but rarely find small-group defamation. One successful claim occurred in Brady v. Ottaway Newspapers, 84 A.D.2d 226, 445 N.Y.S.2d 786 (2d Dep’t 1981), based on a newspaper editorial imputing criminality to 53 unnamed, unindicted police officers. Brady found that “[b]ecause the group is small and includes few individuals, reference to the individual plaintiff reasonably follows from the statement and the question of reference is left for the jury.” Id. at 231.
In this case, the Second Circuit found that
“while 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. 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.”
Both Elias and Fowler were identified after the article came out, and received harassing texts, emails and comments from peers, co-workers and reporters. As for Hadford, the panel found that his claim was based largely on his being a member of the fraternity and riding a bike. In the article, Jackie claimed to have seen “one of the boys riding his bike on the grounds.” That was not enough for the majority.
In his dissent, Lohier believed that the panel had exceeded the scope of state precedent that it was meant to apply in such cases.
The decision is an important addition to group defamation case law. The panel concludes “The District Court erred by evaluating the Article’s various allegations against Phi Kappa Psi in isolation, rather than considering them in the context of the Article as a whole. 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.”
I agree with the opinion, which only reaffirms the terrible judgment of the editors at the magazine before and after the publication of this clearly defamatory article.
Here is the opinion: Rolling Stone Decision