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Defamation suit against Rolling Stone dismissed

University alumni did not prove “A Rape on Campus” was “of and concerning” them, judge rules

<p>Plaintiffs&nbsp;George Elias IV, Stephen Hadford and Ross Fowler were members of the Phi Kappa Psi fraternity during their time at the University and graduated in 2013.</p>

Plaintiffs George Elias IV, Stephen Hadford and Ross Fowler were members of the Phi Kappa Psi fraternity during their time at the University and graduated in 2013.

Nearly one year after three University alumni filed a defamation lawsuit against Rolling Stone magazine over the now-retracted article, “A Rape on Campus,” a federal judge dismissed the suit in a New York courtroom Tuesday.

George Elias IV, Stephen Hadford and Ross Fowler — all three of whom were members of the Phi Kappa Psi fraternity during their time at the University and graduated in 2013 — filed defamation claims in July 2015 against Rolling Stone, writer Sabrina Erdely and Wenner Media in U.S. District Court for the Eastern District of New York.

Judge P. Kevin Castel ruled none of the plaintiffs could not state a claim for defamation because they could not prove the details in the article were “of and concerning” them.

This ruling follows a motion by the defense to dismiss the lawsuit.

The plaintiffs alleged that details in the article — which depicted a brutal gang rape of “Jackie” by members of the fraternity in September 2012 — could lead people that knew them “to erroneously infer” that they participated in the alleged rape.

Following the article’s publication, a Charlottesville Police Department investigation did not find any evidence to support Jackie’s account as described in the article.

“The Complaint describes incidents in which they have been confronted by family, friends and colleagues or felt public embarrassment due to their association with Phi Kappa Psi and the unfounded suspicion that they may have been involved in the attack on ‘Jackie,’” the ruling read.

Castel analyzed the plaintiffs’ claims and evidence in the dismissal.

The plaintiffs argued the article defamed Elias because the article described the alleged gang rape as occurring in a second-floor bedroom of the Phi Kappa Psi house and Elias said his room was the only one accessible, as it was the only second-floor bedroom not located behind an electronic keypad lock.

People who knew Elias may have concluded the alleged rape occurred in his bedroom, the plaintiffs alleged.

Castel, however, said the reference to a bedroom was not enough information to refer or allude specifically to Elias.

“The article contains no details that plausibly distinguishes Elias's bedroom from the several others on the second floor, even to those who knew extrinsic facts about the layout of the fraternity house,” Castel said.

The basis for Fowler’s claim of defamation is that quotes during the alleged rape, such as, “We all had to do it, so do you, too,” could lead a reader of the article to reasonably believe that rape was part of the initiation process for the fraternity.

Fowler was also the fraternity’s rush chair in the 2010-2011 academic year and was involved in the rush process the following year. Reasonable readers, the plaintiffs argued, would conclude Fowler was involved in several rapes if they had been led to believe that such an initiation practice existed.

In the ruling, Castel said the plaintiffs “read far too much into the words of the article” and, in the context of the article, Castel argued it would not be reasonable to suggest rape was an initiation for membership in Phi Kappa Psi because if that was the case, the large number of victims and attackers would have likely been the focus of the article instead of Jackie’s account.

The article also detailed how Jackie claimed to have seen one of her attackers ride by her on a bike on Grounds prior to a conversation with Dean Nicole Eramo, which plaintiffs argued would have been “of and concerning” Hadford given that he often rode his bike.

“Friends, family, and acquaintances of Hadford would have made the connection that Hadford must have been the person who Jackie saw riding his bike on campus,” the plaintiffs said.

Castel said the details in the article were not specific enough to lead a reader to identify Hadford.

“There is no basis from which Hadford could be distinguished from any other adult male riding his bike on the U.Va. campus,” Castel said.

Among the other points raised in the ruling, Castel said quotes from an interview Slate conducted with Erdely are an expression of the writer’s opinions, which receive full protection under New York law.

The ruling also acknowledged that the plaintiffs believed the Slate interview and the Rolling Stone article “gave readers the false impression that gang rape was an initiation ritual required of all Phi Kappa Psi members, thereby making the statements ‘of and concerning’ the individual plaintiffs and all other then-members of U.Va.’s Phi Kappa Psi chapter.”

This “small-group libel” claim did not hold up in Castel’s ruling because Erdely’s comments in the interview were found to be non-actionable opinions and the details in the article — such as a description of the attackers as recent graduates — did not apply to all 31 members of Phi Kappa Psi who graduated in 2013 and 2014.

Lawyers for neither side could be immediately reached for comment Tuesday night.