Rolling Stone Makes Move to Dismiss Defamation Lawsuit Over Rape Story

The publication says its now-retracted article was not "of and concerning" three members of the Phi Kappa Psi fraternity.
Associated Press

When reporting a story, a media outlet's fuzziness with details can be both helpful and harmful. According to Rolling Stone, which continues to deal with fallout from a now-retracted article titled "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA," the fact that it was sketchy about the details of a purported gang rape of a freshman identified as "Jackie" is reason to end a defamation lawsuit brought in New York.

George Elias, Stephen Hadford and Ross Fowler sued in July over the discredited article that prompted a commissioned investigation by the Columbia Graduate School of Journalism. They identified themselves as libeled members of the Phi Kappa Psi fraternity blamed for the rape.

On Tuesday, Rolling Stone sent a letter to the judge spelling out the basis for an anticipated motion to dismiss.

The article, written by Sabrina Erdely, described nine men participating in the attack, but besides one individual identified as "Drew," didn't give names of the rapists.

Rolling Stone, represented by attorney Elizabeth McNamara, cites the legal standard that a defamatory statement must be "of and concerning" a particular individual.

"Here, Plaintiffs allege that the Article identifies them [Elias, Hadford and Fowler] as 'participants in [Jackie's] alleged gang rape,' but no reasonable reader could reach that conclusion," states the letter from Rolling Stone. "The Article does not refer to Plaintiffs by name, nor does it describe them physically or provide biographical information about them ... [Besides Drew,] the other perpetrators are described sketchily at best, and the minimal information provided belies any plausible conclusion that Plaintiffs were these individuals."

In particular, Rolling Stone says the story suggested that seven of the alleged rapists were underclassman, yet the plaintiffs were seniors at the time of the alleged crime. The publication also finds it dubious that Elias was identified by the location of the described incident. Stated another way, Rolling Stone is suggesting that the plaintiffs are self-identifying themselves as accused rapists when their report suggested otherwise.

Of course, just being a member of Phi Kappa Psi at that time could be cause for wrongful assumptions in the eyes of readers. But Rolling Stone continues by using group libel doctrine to head off this line of attack.

"First, the 'group' at issue is not clearly established," states the letter. "The Article does not even make clear that the rapists were members of PKP; instead, they appear to be freshmen non-members of the fraternity. Thus, the 'group' may well be all males at UVA, or all males in the freshman class, or possibly all members of PKP. However defined, the group is not small. When an allegedly defamatory statement makes reference to a large group of people, no individual within that group can fairly say that the statement is 'of and concerning' him or her, nor can the 'group' as a whole state a claim for defamation."

Here's Rolling Stone's full letter to the judge.

Rolling Stone is also facing a defamation claim from University of Virginia associate dean Nicole Eramo and has a different defense there.