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Why Rolling Stone’s Lawyers Aren’t Celebrating The Defamation Lawsuit’s Dismissal


Before the lie gets halfway around the world, the trending headlines about the dismissal of the defamation suit against Rolling Stone are oversimplified. Only one of three defamation cases against the magazine has been dismissed. The lawsuit in federal court in New York has been dismissed. The two cases in Virginia, one in state court and the other in federal court, remain. Also, the plaintiffs in the New York case will likely appeal.

A little recap: A young freelance writer, Sabrina Erdely, wanted to publish a story about campus rape culture. She contacted a woman who had allegedly experienced a brutal gang rape at a frat party at the University of Virginia. Erdely found an eager editor at Rolling Stone magazine and submitted a horrible story to them.

Disregarding basic journalism standards, ethics, and notions of oversight — that is not merely my opinion, but the findings of the Colombia Graduate School of Journalism review board created to figure out what went wrong after the story fell apart — Rolling Stone published the story, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA” in the fall of 2014.

The story quickly went viral. The dean of UVA, the Phi Kappa Psi fraternity, the individual members of the fraternity, and UVA itself became notorious examples of rape culture. Then a few actual journalists investigated and the story fell apart in a matter of weeks. It seems that the young woman—“Jackie,” as the story called her to protect her identity—had made up a story about a brutal gang rape in order to gain the protection and affection of a boy she liked.*

Rolling Stone retracted the story, but by then the damage was done for those falsely accused. Parties sued Rolling Stone, Erdely, and Wenner Media, which publishes Rolling Stone.

It Matters Where You Sue

I explained the possible defamation actions both before anyone announced intent to sue for defamation and after. (I also explained why they wouldn’t sue Jackie.) I mentioned the matter of jurisdiction. Virginia, the likeliest venue given the setting of the story, has defamation per se, or defamation in which the accusation is so awful courts assume damages. But Virginia also has a damages cap. I theorized that the parties might sue for honor more than money, but if they wanted to break the defendants financially, they’d have to sue elsewhere.

That is basically what happened. Dean Nicole Eramo sued in Virginia state court, and the defendants removed that case to federal court. The fraternity sued in Virginia state court. But three of the fraternity members, the ones who came to be known as the instigators of the rape that didn’t happen, sued in federal court in New York.

It is the federal case by the three individuals that got dismissed. That is also the case that was possibly the weakest, although none of them are weak. Unlike the dean and the fraternity, Erdely did not name the individuals in the article. Therefore, to succeed on a defamation claim, those young men would have to show that people realized the story was about them.

Do These Men Retain Their Good Names?

In New York — the case is in federal court but using New York state law — the standard is “of and concerning.” From the dismissal (internal citations omitted):

A plaintiff also must plausibly allege that ‘[t]he reading public acquainted with the parties [sic] and the subject’ would have understood the allegedly defamatory statement to be ‘of and concerning’ the plaintiff. ‘It is not necessary that the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.’ A reader must be able to discern that the statement refers to the plaintiff, even when the statement does not identify the plaintiff by name.

In the Internet age, when anyone can look up the members of the Virginia Alpha chapter of Phi Kappa Psi and wonder if they are the rapists —Hanna Rosin did just that with friends and wrote it up at Slate — the judge erred in dismissing the case. He assumed the plaintiffs would not be able to prove that people thought the story was “of and concerning” any of them because the rape never actually took place.

That is, Jackie did not describe one of them and just not name him. She wholly made up her attackers. The court essentially reasoned that since she did not base her fictional men on anyone real, no one could think the story was “of and concerning” any of the fraternity member plaintiffs.

First, that’s a bit of tough luck for any fraternity member who happens to resemble any of the guys Jackie invented, or who happened to live in the room where she set her tale. I think they have a decent shot at winning an appeal of the dismissal.

Second, the Southern District of New York’s analysis bodes poorly for Rolling Stone and Erdely’s chances of surviving the Virginia cases. Their research and fact-checking were so lacking that they published figments of someone’s imagination as news. There wasn’t even a kernel of truth that the story grew out of. And that is a court finding in an order for dismissal. In layman’s terms, the fabrication is so obvious that the court feels comfortable drawing that conclusion based upon the complaint, before evidence is presented at trial.

With findings like that, it shouldn’t come as a surprise in a few months’ time when Rolling Stone ends up losing like Gawker. The lawyers and owners of Rolling Stone aren’t likely celebrating today’s dismissal. Even if the dismissal doesn’t get overturned on appeal, this is still a case of win a battle but lose the war.

*In the two still-active defamation cases, Jackie has resisted turning over emails from the account she appears to have used to create the fictional rapist, Haven Monahan.