Rape

Appeals Court Sides with UVA Fraternity Brothers, Against Rolling Stone in 'Jackie' Rape Dispute

"A reader could plausibly conclude that many or all fraternity members participated in alleged gang rape."

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Wenner
Rick Maiman/Polaris/Newscom

Two former members of the University of Virginia's Phi Kappa Psi fraternity have a strong enough defamation argument against Rolling Stone that the case should proceed to trial, an appeals court ruled Tuesday.

The decision is a major blow to Rolling Stone's publisher, Jann Wenner—who put the magazine up for sale earlier this week—and to Sabrina Rubin Erdely, the disgraced author of a now thoroughly debunked RS article about a gang rape on UVA's campus.

Wenner and Erdely probably thought their legal ordeal was over: RS has already paid out millions of dollars to former UVA dean Nicole Eramo for badly misrepresenting her, and also to Phi Psi for staging the fraternity as the scene of a crime that never happened. But three Phi Psi brothers—George Elias, Ross Fowler, and Stephen Hadford—also filed suit as individuals, arguing that the story specifically and individually defamed them. This suit was dismissed by a New York district court more than a year ago.

That dismissal was unsound, according to the Second Circuit Court of Appeals. In her decision to revive the case, Judge Katherine Forrest argued that the lower court had incorrectly ruled out defamation as a plausible verdict with respect to two of the three brothers, Elias and Fowler.

You will recall from Reason's exhaustive coverage of the story that a former UVA student, "Jackie," told Erdely that she was lured to an upstairs bedroom at the Phi Psi fraternity by her date, "Drew," a lifeguard and member of Phi Psi. At least nine frat brothers then allegedly beat and raped her, apparently as part of some frat initiation. This claim became the central element of Erdely's story on sexual assault; it collapsed when scrutinized by other journalists—myself among them—after Jackie's numerous lies came to light.

No one disputes that Jackie's story was inaccurate—RS eventually retracted—and that no such assault took place at Phi Psi. The question is whether Erdeley and her editors screwed up so colossally that the magazine can actually be held liable for defamation. And now, for a third time, a court has said, yes.

The story did not specifically name Elias, Fowler, or Hadford, so at first blush it might seem like their lawsuit is legally unmerited. Under New York law, a person can only be found responsible for defamation if their false statements were "of and concerning" the defendants. But the court of appeals thinks Elias and Fowler, at least, could plausibly meet that test, because "it is not necessary the world should understand the libel; it is sufficient if those who know the plaintiff can make out that she is the person meant," according to earlier decisions in 1980 and 1966.

Elias and Fowler contend that they were presumed to be involved in the crime by people who knew them personally, since key details relating to them appeared to match Jackie's descriptions. Elias lived in one of the only rooms on the second floor that would have been capable of holding 10 people. Fowler was, like "Drew," a swimmer and a senior member of Phi Psi responsible for initiating new members.

The court of appeals is also letting their "small group defamation" claim proceed. "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," write the judges.

This does not mean that the brothers are guaranteed to win at trial. Their case is in some ways weaker than both the suits filed by Eramo and Phi Psi itself, since the article called out both Eramo and Phi Psi by name.

"We are disappointed with the Second Circuit's ruling today, but are confident that this case has no merit," said a spokesperson for RS in a statement.

But there's no question whether the violent actions attributed to the fraternity brothers were invented, there's no question whether they suffered reputational harm because of this, and there's no question whether Rolling Stone should have known better than to trust a single source who refused to provide any evidence of her claims and who threatened to cease cooperating whenever Erdely came within striking distance of the truth. The only thing left for a judge or jury to decide is whether the three people filing this lawsuit were the ones defamed.

Good luck with the sale, Jann Wenner.

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62 responses to “Appeals Court Sides with UVA Fraternity Brothers, Against Rolling Stone in 'Jackie' Rape Dispute

    1. And bob Dylan on the cover once a year.

      1. I still can’t believe that’s the guy who came up “Make you feel my Love”

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  1. Good luck with the sale, Jann Wenner.

    zing!

  2. RE: Appeals Court Sides with UVA Fraternity Brothers, Against Rolling Stone in ‘Jackie’ Rape Dispute
    “A reader could plausibly conclude that many or all fraternity members participated in alleged gang rape.”

    I read recently the leftist rag Rolling Stone is up for sale due to poor sales.
    Gee, I can’t understand why Rolling Stone would have poor sales, especially after the UVA article.

    1. Yeah, and after they sent that famous guy Penn down to talk to El Chappo but then nothing happened! Then they tried to somehow transmogrify that nothingbuger into a rehash of a Hunter Thompson joint.

      I guess even a Rolling Stone can collect moss after all.

      1. I guess even a Rolling Stone can collect moss after all.

        A nice one.

  3. The only thing left for a judge or jury to decide is whether the three people filing this lawsuit were the ones defamed.

    I still think Haven Monohan has a strong case against Phi Psi.

    1. If PETA can sue on behalf of a macaque, the fraternity should be able to sue on behalf of Haven.

  4. I’ve said it before and I’ll say it again: teach magazines not to lie about rape.

    1. Please cite where you said this before.

      1. It’s tattooed across his forehead, shoulders, and down both thighs.

        1. Well, that’s not really saying it then, is it?

          1. Crusty has been known to speak in tongues.

  5. Is Erdeley still getting work as a writer? I think if she was that would be telling about the modern media.

    1. Yeah, she shares a cube with Jayson Blair and Stephen Glass.

      1. I heard Robby created Erdley to make one of the other reason writers jealous, and it spun a little out of control.

  6. confident that this case has no merit,

    They were also confident in Jackie’s fantasy.

    Fuck Wenner. I hope he ends up bankrupt.

    -jcr

    1. So “freelancing” is the euphemism for that kind of work now?

    2. Freelancing is not free.

  7. “The decision is a major blow to Rolling Stone’s publisher, Jann Wenner?who put the magazine up for sale earlier this week”

    Let’s hope RS’s value reflects the fact that it publishes tripe.

  8. Rolling Stone: the Nick Gillespie of magazines.

    1. Haha, man that’s not a good burn.

      1. Simple Mikey is the Simple Mikey’s Idea Of Nick Gillespie of sick burns.

    2. That elicited a wry chuckle from me in my ProjMan meeting. Now data services thinks I was laughing at them.

  9. This article appears to be missing a “to be sure”…

  10. If this was The Blaze or the Rush Limbaugh Show being sued for ruining the reputations of climate scientists through defamatory and false assertions of them all being ‘shills’ of George Soros, would the reaction be the same? Or would y’all be whinging about tyrannical government supporting censorship and first amendment rights and engaging in hyperbolic hand-wringing about the evils of ‘collectivism’ (aka ‘civilization’)?

    1. “If the situation was completely different, would you react the same way?”

      Fact: anyone who self-applies the term “netizen” is a heinous tool.

    2. Isn’t there some defamation cases happening right now related to the climate change conversation?

      1. Michael Mann (he of the tree rings and hockey stick graph) has sued Mark Steyn for defamation. Case has dragged on for five or six years.

        1. Is that the one where the defendant was hoping for the lawsuit so he could get discovery on Mann’s vast collection of “data” which he won’t release to the public?

          1. For good reason! Tony Heller gives away python code for graphing unaltered NOAA temperature data. That raw data graphs zigzag curves for which the trendlines invariably show that average temperature and temperature extremes have been FALLING for the past century. This is easily reproducible by everyone except Ronald Bailey.

            1. This is because, in my opinion, Michael Mann is a liar and a fraud.

    3. The differnce is that the rape story was so much bushwa, and any reasonable amount of checking would have shown that. The issue of climate science fakery is very much up in the air. That there has beena good deal of it is pretty certain. Why is open to question.

    4. A guest host of The Rush Limbaugh Show, Mark Steyn, is being sued by a climate scientist, Michael Mann, over the same allegations. So your question shows you’re uninformed.

  11. The decision is a major blow to Rolling Stone’s publisher, Jann Wenner?who put the magazine up for sale earlier this week

    I take such great satisfaction from RS going under. Such a crap magazine that does nothing but revel in nostalgia.

    1. I liked the nostalgia… until it became solely Soviet nostalgia and the Anti-Industrial Revolution. Rolling Stone was taken over by Altrurian socialists, just like the Democratic Party.

  12. In her decision to revive the case, Judge Katherine Forrest argued that the lower court had incorrectly ruled out defamation as a plausible verdict with respect to two of the three brothers, Elias and Fowler.

    Her name’s appeared in Reason before, in a less than favorable light. Does anyone else remember her?

    1. Now I remember….special place in hell…woodchippers…Federal Subpoenas issued against Reason commenters…

      1. She’s a beautiful, intelligent woman and I would be glad to know her.

      2. She’s also the judge from the Silk Road case that led to Life Imprisonment for Ulbrict.

    2. Good call! I remember US attorney Prick Bharara but I didn’t remember her.

  13. Robby, when a story updating the saga of UVA and Rolling Stone flashes across your newsfeed, do you send a link to it to Anna Merlan? I’d totally send a link to it to Anna Merlan.

  14. You know who else overruled the lower courts?

    1. Cersei Lannister?

    2. John McEnroe?

  15. Back when Jimi, Janis and Jim were “found dead”, the Rolling Stone and National Lampoon were all I could stomach reading. I finally found out about Reason and Access to Energy from the Travis County Libertarian Party in Austin, and am glad of it.

  16. No one disputes that Jackie’s story was inaccurate

    According to the NYT while the Rolling Stone story was “botched” Jackie’s story itself was only “unproven”.

    “a botched story three years ago about an unproven gang rape at the University of Virginia badly bruised the magazine’s journalistic reputation.”

  17. “a botched story three years ago about an unproven gang rape at the University of Virginia badly bruised the magazine’s journalistic reputation.”

    Let me fix that for them…..

    a faked story three years ago about an imaginary gang rape at the University of Virginia totally destroyed the magazine’s reputation.

    1. well put. It’s funny that we have to translate journalist reports into reality.

  18. Dear all,

    I am an observer from the other side of the pond.

    We have our histrionic outcries here, as well. Perhaps, I hope, with a bit more sanity and reason – although the US is far more progressive in areas like going after statutory rape perpetrated by women (not a single case comes to mind in my home country, Sweden). Our extremists push the boundaries of social engineering (see out gender neutral daycare centres), but they do, to be fair, also use common sense and stop short of forcing roles on children. In other words, behind all the radical rhetoric are people who genuinely care about children and who make sure that boys who do not act like most boys can be who they want to be. Take out the gender is a social construct idiocy, and the approach is actually relatively commonsensical and compassionate.

    In the US, we hear of a rape culture. One that we can see in figures like 1 in 4 or 1 in 5 (although I am surprised the figure is not 1 in 2 or 1 in 1 if you count positive answers to questions like have you ever had sex although you did not want to – I certainly have). Those are overblown figures, but there is no doubt that even conservative estimates tell us that sexual assault is a large problem. Perhaps, if you apply a broad definition, it is also by far the most underreported of crimes, especially if the victim is male and the perpetrator female.

    1. The US has also made welcome headway into broadening the definition of rape to include, say, date rape, and cases of unwarranted coercion or abuse of power. By and large, I would consider this progress – of course with the stipulation that we have to apply the criteria in a gender neutral fashion (which will take a while).

      Could someone then please explain to me why, in an attempt to rally opinion against rape culture, a newspaper like Rolling Stones would pick a case like this?

      First, it was an obvious fabrication – most pieces simply make no sense and even basic scrutiny should have caught it, as is normal journalistic practice in almost all other cases.

      Second, it perpetuates the stereotype of rape as “real rape”, a violent, forceful, traumatising even, perpetuated by men with a psychopathic absence of empathy that collude with and protect each other. Would it not be more fruitful to pick up on cases where there is more ambiguity – a date that goes awry? Cases where we actually do tend to engage in victim blaming?

      1. And third, and perhaps most importantly, why in the world, with over 100,000 convictions for sexual assault in courts of law, would you not pick one of those cases? One where, for all intents and purposes, it is reasonable to assume that the victim’s story is correct? It seems like you should be able to pick and choose. And such a story would fill exactly the same function as the author intended. If you have been raped, even the most benevolent of systems would still have to make you relive what may be the most horrifying moments of your life second by second. That must be excruciating. Why not write about that?

        Finally, fourth: why, in the midst of outcries, unabated since the date rape and take back the night campaigns (which, at the time, struck me as a bit exaggerated but by and large justified) in the early 90s, do we still push the narrative of the callous college administrator (or police officer, or DA) that wants to sweep things under the rug? I am sure that this does happen, but reacting like the dean is supposed to have reacted would be downright sociopathic. But not even a sociopath would react that way, because there are almost no incentives left to do so – and tons of incentives to take a firm stance for the victim (at least as long as gender roles are upheld – male perpetrator, female victim). Why in the world would we believe that, especially in the current climate, a dean would actually behave in such a despicable manner?

        1. These questions all puzzle me. Rather than draw attention to the problem, the rhetoric strikes me as unproductive, histrionic, and fundamentally divisive. Few things unite Americans more than aversion to sexual assault and terrorism: why in the world would a reputable magazine write a story that, despite this overwhelming consensus, causes such divisions? Because I find it inconceivable that Rolling Stone did not see this coming. My five-year-old niece would. I also find it bizarre that most of the opposition comes from the right – a right wing that, traditionally, has championed the overwheening penalism with, arguably, racist elements, that is still filling up prisons to the point of bursting and sending troubled members of society into vicious circles and, often, sexual abuse and even suicide. Surely the left wing is most likely to argue that the US is locking up way too many people? And point to countries like mine that cut recidivism by 80% through penalties that focus on reintegration. Why is the left wing, by championing the 1 in 4 figure, calling for aggressive laws that potentially could criminalise “normal” sexual behavior and see men locked up for actions that may have been gauche or reckless, but hardly indicative of sadism or sociopathy?

          If someone could please enlighten us benighted Europeans on this. Don’t get me wrong, I love the US and follow your current events closely – but this is one of the issues that continue to befuddle me.

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