The Phi Kappa Psi / Rolling Stone lawsuit


Attorneys debate portrayal of UVa fraternity in Rolling Stone article
by Dean Seal
Daily Progress, 2016-05-18 (Wednesday)

One of the three outstanding lawsuits facing Rolling Stone related to a now-retracted story that rocked the University of Virginia was back in court on Tuesday.

Counsel for the university’s chapter of the Phi Kappa Psi fraternity faced off with
attorneys for the magazine, its publisher and author Sabrina Rubin Erdely on Tuesday morning
to discuss objections to the $25 million defamation lawsuit filed last November against Rolling Stone.

The fraternity alleges that it was unduly maligned by the magazine’s November 2014 release of “A Rape on Campus,” a 9,000-word article penned by Erdely about the climate of sexual assault at American universities. The article’s centerpiece is the story of a UVa first-year named “Jackie” who describes a night in which she was invited to a party at Phi Kappa Psi’s off-Grounds fraternity house and brutally gang-raped by seven men in an upstairs bedroom.

The article’s release created a firestorm of controversy and outrage from the UVa community; protests were led by students and faculty alike outside of Phi Kappa Psi house, and university President Teresa A. Sullivan promptly suspended Greek life for the remainder of the fall semester. Unidentified protesters vandalized the fraternity house and levied a deluge of threats against its inhabitants, leading them to vacate the residence.

Weeks after its release, the story began to unravel as media outlets found substantial flaws in Jackie’s story, and by early December 2014, the magazine stated that it had “misplaced” its trust in Jackie. After an investigation by Charlottesville police that turned up no evidence of Jackie’s claims and a scathing review of the story by the Columbia University journalism school, Rolling Stone retracted the story in April 2015. Its editor, Will Dana, resigned the following July.

In the months since the retraction, the magazine has been hit with three lawsuits.
UVa administrator Nicole Eramo, characterized in the article as being ineffective and indifferent to survivors of sexual assault as part of her duties as an associate dean, filed a defamation lawsuit in May seeking $7.85 million.
Then in July, three alumni, all Phi Kappa Psi members, filed a defamation lawsuit claiming they were subjected to “vicious and hurtful attacks” after the article’s publication.

When UVa’s Phi Kappa Psi chapter filed its own lawsuit in November,
it alleged that all of its members had become the object of “an avalanche of condemnation worldwide” since the article’s release
and that the fraternity’s membership and reputation had been severely damaged.
It accused Erdely and the magazine of having
“set out in advance to find a sensational story of graphic and violent rape”
and intentionally avoiding sourcing to corroborate Jackie’s story.

Since its filing, attorneys for the magazine have made objections to the contents of the lawsuit,
saying that “A Rape on Campus” could not have been reasonably interpreted as a censure of the fraternity so much as
a critical look at the sexual assault reporting system in place at UVa.

In Tuesday’s court hearing,
the magazine’s counsel further objected to the notion that
a reasonable reader would come away from the article believing that
Phi Kappa Psi maintained an “institutional policy of systematic gang rape”
as part of an initiation ritual into the fraternity.

Before attorneys for the fraternity could respond,
Judge Richard Moore commented that,
after his initial reading of the article,
he believed there was a clear implication that the fraternity was the story’s primary villain.

“Don’t you come away thinking …
why didn’t the university do something about this frat?” Moore said.
“That’s why it was so earth-shaking.”

The magazine’s counsel disagreed, but attorneys for the fraternity quickly stepped in to say that
Moore’s initial reaction to the article spoke volumes about the matter at hand.
They went on to read sentences from the article
that appeared to directly implicate Jackie’s assailants
as members or prospective members of the fraternity
and pointed to Erdely’s comments during a Sirius XM interview,
in which she said the story about Jackie’s assault
“would lead one to believe it was some kind of initiation ritual.”

The two sides invoked several historic cases dealing with the extent to which
an organization is responsible for the actions of its members
before Moore stated that
he would need more time to review the case
before making a decision on the defense’s objections.

While Moore promised to be prompt, he added that it could be weeks
before he can make an official ruling due to his busy court schedule.
If he rules in favor of the fraternity, the case will move into the discovery phase.
A 10-day trial is currently scheduled for October 2017.

Federal judge dismisses U-Va. fraternity members’ defamation lawsuit against Rolling Stone
By T. Rees Shapiro
Washington Post, 2016-06-29

A federal judge in New York has dismissed a defamation lawsuit that three former members of the Phi Kappa Psi fraternity at the University of Virginia filed against Rolling Stone magazine, in which they alleged that a magazine article about a gang rape at the school implied they were involved in it.

The lawsuit centered around a sensational account of an alleged gang rape at the fraternity, which a U-Va. student named Jackie said happened in an upstairs bedroom during a party at Phi Psi during the fall semester of 2012. The article, published in late 2014, was later discredited, and Rolling Stone retracted the account.

Manhattan federal judge P. Kevin Castel dismissed the case because the three former members — U-Va. Class of 2013 graduates George Elias IV, Stephen Hadford and Ross Fowler — were not explicitly or implicitly identified in the 9,000-word account by journalist Sabrina Rubin Erdely.

The case’s dismissal comes as two other lawsuits regarding the article continue forward in the courts, including one filed by an associate dean at U-Va. and the other a more general claim from the undergraduate members of the Phi Kappa Psi fraternity.

Castel ruled that the 2013 alumni did not have a claim against Rolling Stone because the article did not sufficiently identify or describe them.

Elias alleged that because he lived on the second floor of the Phi Psi house during the time of the alleged attack in 2012 that friends and acquaintances could have believed that he took part in the sexual assault Rolling Stone described.

But Castel wrote that “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.”

Hadford alleged that because he often rode his bike on campus in Charlottesville he could have been identified as one of the perpetrators, who is described at one point as bicycling on campus.

“These allegations are insufficient to plausibly state a defamation claim,” Castel wrote. “The article contains no additional, identifying details concerning the individual who rode his bike around campus.”

Fowler alleged that because he was “an avid swimmer” that readers could have possibly identified him as one of the attackers because the article described one of the assailants as a lifeguard at a campus pool. But Castel wrote in his opinion that such a claim was not plausible.

Is Rolling Stone about to get throttled in court over UVA rape report?
by Bill Wyman
Columbia Journalism Review, 2016-07-28

Three libel cases stemming from Rolling Stone’s now infamous “A Rape on Campus” exposé
seem poised to go down in the annals of defamation law.
It is hard to think of a story so lurid—
including a horrifying account of a brutal gang rape of a first-year student at a fraternity party at the University of Virginia—
built on journalistic practices so negligent.
The 2014 story was quickly debunked as false,
but the legal aftershocks are likely to continue for years.

Just how vulnerable is Rolling Stone?
CJR took a look at the state of libel law, reviewed the pending cases, and talked to legal experts on defamation to find out.


So how will the magazine defend itself?

There are two easy defenses against libel that work to the media’s benefit.
One is truth, which is in most cases an absolute defense.
Rolling Stone has retracted the story and acknowledges that the assault did not occur, so it will not be using this defense.
The other is that the allegedly defamatory statements are a matter of opinion.
Since the original Rolling Stone story was built on the factual assertion that a gang rape had occurred,
that defense will probably not play a part in the fraternity cases,
but the opinion defense will probably arise in the suit from the UVA administrator.

But some quirks in the law might provide a way out for the magazine.
Libel law is quite plain that a defamatory statement must be shown to be “about” or “of and concerning” the plaintiff.
But in the article, no actual members of the fraternity were named.

That is why the case from the three individual fraternity members was dismissed last month. Federal Judge P. Kevin Castel wrote: “The article’s details about the attackers are too vague and remote from the plaintiffs’ circumstances to be ‘of and concerning’ them.”

The second suit is from the UVA chapter of Phi Kappa Psi as a whole. Here, having zigged in the first case, arguing that it had not defamed any individual members of the fraternity, Rolling Stone now has to zag, and argue that the article was about individual people committing rape, but not the fraternity itself.

Virginia libel lawyer Lee Berlik says he isn’t following the case but spoke on Virginia law broadly. “The fraternity … will have to prove that the article was ‘of and concerning’ the fraternity in some defamatory respect,” he writes in an email. “It will likely be difficult for the fraternity to persuade the court that the article was about it—not because it’s an institution, but because a strong argument can be made that the article’s focus was on the actions of a few individuals and not on the fraternity itself. To counter this argument, the fraternity will essentially need to argue that the article stated or implied that a rape took place with the express or implied consent and approval of the fraternity.”

UCLA law professor Eugene Volokh, who has written several articles about the case for the Washington Post website, says Phi Kappa Psi will probably argue that the article implied the fraternity is a dangerous place to go. Says Volokh: “If someone said, ‘[There’s this] bar, people routinely get raped in this bar.’ Is that libel of the bar? You’re not accusing the bar of rape, to be sure, but you are accusing the bar of being a dangerous place that maybe allows dangerous patrons or dangerous employees. And the likely consequence of that is that the bar will lose business.”

Rolling Stone’s article has at least one passage that suggests the (fictional) rape might indeed have been part of a fraternity activity. In Jackie’s description of the assault, one fraternity member hesitates. One of the other fraternity members is said to say, “Don’t you want to be a brother?” Another alleged comment: “We all had to do it, so you do, too.” Both remarks could be seen to imply that the assault was part of a membership ritual at the house.

Additionally, later in the article Jackie is said to have discovered two other women who’d been subjected to group assaults at Phi Kappa Psi. They have never come forward. In its complaint, the fraternity argues that the article implies that such assaults were frequent and perhaps even tolerated there.


The Columbia Journalism School report called the Rolling Stone debacle “a story of journalistic failure that was avoidable.
The failure encompassed reporting, editing, editorial supervision and fact-checking.
The magazine set aside or rationalized as unnecessary essential practices of reporting ….”

Note those emphasized words.
Most journalists know about the US Supreme Court case on libel, New York Times v. Sullivan,
which has been generally been cited in libel actions since it was handed down in 1964.
The Sullivan standard is that a private figure alleging libel has merely to show negligence on the part of the publisher.
Public figures, however, have to meet a higher standard, what the court called “actual malice,”
which was defined as publishing while knowing something wasn’t true,
or publishing with reckless disregard for whether something was true or not.

The idea, roughly put, is that a free press will occasionally make mistakes
but that, as long as the publication was acting professionally
(that is to say, not recklessly)
it would, broadly speaking, be free from libel judgments on matters of public import.
Less often cited is a caveat:
The plaintiff has to show that the publication actually entertained doubts about what it was publishing.


Phi Kappa Psi lawsuit unlikely to change in light of Eramo verdict
Different statements and evidence will make for a different trial
by Anna Higgins
Cavalier Daily, 2016-11-08


Phi Kappa Psi filed a $25 million defamation lawsuit against
the magazine, writer Sabrina Rubin Erdely, Wenner Media, Inc. and Straight Arrow Publishers in November 2015.

“Rolling Stone and Erdely had an agenda,
and they were recklessly oblivious to the harm they would cause innocent victims in their ruthless pursuit of that agenda,”

the lawsuit reads.


A major difference between the fraternity and Eramo’s lawsuits is where the cases were filed:
while Eramo elected to bring her case to the U.S. District Court,
Phi Psi chose to stay in the Charlottesville Circuit Court.

The decision to keep the lawsuit in-state was likely a strategic one, White said.
A local circuit court may provide a local judge and jury more likely to favor the plaintiff over an out-of-state defendant.

“They're probably thinking that for some reason they might get more favorable treatment if they sued in a local court,” White said.
“Obviously that’s what they're doing since they would have had the opportunity to sue in federal district court,
they have elected to sue in state court for strategic reasons.”

The definition of the plaintiff’s level of publicity,
a point of contention in libel lawsuits,
will also likely not be affected by Eramo’s classification as a limited-purpose public figure in her lawsuit.

“One of the issues that's going to be present in this case is
there is no, and I mean literally, there is no legal effect of the first decision,” White said.
“Things like whether the fraternity is a public figure,
the fact that Eramo was found to be a limited purpose public figure by the district court
does not mean that Phi Kappa Psi would necessarily be found to be a limited purpose public figure by the trial judge in Charlottesville.”

The fraternity’s lawsuit is not scheduled for trial until October 2017.


‘Jackie’ ordered to comply with subpoena in fraternity’s suit
Daily Progress, 2017-01-30

The former University of Virginia student at the heart of an infamous Rolling Stone article
is again being ordered to comply with a court order related to
a multimillion-dollar lawsuit against the magazine.

Attorneys for the UVa chapter of the Phi Kappa Psi fraternity
were in Charlottesville Circuit Court on Monday for a hearing in their defamation lawsuit
against Rolling Stone, its publishers and author Sabrina Rubin Erdely.


While the fraternity’s suit remained somewhat dormant while Eramo’s suit made its way through federal court, a motion in the case was taken up Monday morning. Just as Eramo’s attorneys did in her case, the fraternity has asked the court to compel Jackie to comply with a subpoena seeking documents related to her relationship with Erdely, the article and her alleged assault.


In response to this latest subpoena, Jackie again filed a slew of objections, arguing that she should not have to provide the requested materials. At Monday’s hearing, a judge again disagreed with Jackie’s attorneys, ruling that she would have to “substantially comply” with the subpoena.

While the amount of information and documents that Jackie had to turn over in Eramo’s case was never publicly disclosed, an attorney for Phi Kappa Psi said Monday that the latest subpoena represents a “broader area of inquiry” than the scope of the discovery authorized in Eramo’s case.

A 10-day trial for the lawsuit is scheduled to begin Oct. 23.