Elias v. Rolling Stone LLC
872 F. 3d 97 (2017)
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Rule of Law:
Defamatory statements about a small group may be actionable by any group member if the statements, read in the context of the entire publication, plausibly imply that all members participated in or had guilty knowledge of the alleged misconduct. Additionally, an unnamed individual may state a claim for defamation if the publication contains sufficient descriptive details such that a reader acquainted with the individual could plausibly identify them as a subject of the statements.
Facts:
- In November 2014, Rolling Stone magazine published an article by Sabrina Rubin Erdely detailing a fabricated story of a violent gang rape of a student named 'Jackie' at the Phi Kappa Psi fraternity house at the University of Virginia (UVA) in the fall of 2012.
- The article described the rape as involving seven male participants and two onlookers in a second-floor bedroom, with attackers making statements like 'Don’t you want to be a brother?' and 'We all had to do it, so you do, too.'
- It included details such as Jackie meeting her alleged attacker, 'Drew,' at the university pool where he was a lifeguard, and a UVA dean later stating that 'all the boys involved have graduated.'
- At the time of the alleged incident, plaintiff George Elias lived in the only easily accessible bedroom on the second floor large enough to accommodate the described event.
- Plaintiff Ross Fowler was a former 'rush chair' for the fraternity, responsible for initiation, and was a regular swimmer at the university's aquatic center.
- Plaintiff Stephen Hadford frequently rode his bicycle on campus for fifteen months after his graduation.
- At the time of the purported rape, there were fifty-three active members of the Phi Kappa Psi fraternity at UVA.
- Following publication, the story was exposed as a fabrication, and Rolling Stone officially retracted the article and issued an apology.
Procedural Posture:
- George Elias, IV, Stephen Hadford, and Ross Fowler filed a lawsuit for defamation against Rolling Stone, LLC, Sabrina Rubin Erdely, and Wenner Media LLC in the United States District Court for the Southern District of New York.
- The defendants filed a motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
- The District Court granted the defendants' motion and dismissed the case in its entirety.
- The plaintiffs (appellants) appealed the District Court's dismissal to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a magazine article describing a fabricated gang rape at a specific fraternity house give rise to a plausible defamation claim for individual, unnamed members, either through specific identifying details or under the doctrine of small group defamation?
Opinions:
Majority - Forrest, District Judge
Yes, in part. The magazine article gives rise to a plausible defamation claim for some, but not all, individual members based on specific identifying details, and for all members under the doctrine of small group defamation. To be 'of and concerning' an individual, a publication need only contain sufficient details to make it plausible that a reader familiar with the plaintiff would identify them. For Elias, the unique location of his bedroom in the fraternity house was a sufficient identifying detail. For Fowler, his role as a former rush chair, combined with the initiation-like language in the article and his regular presence at the pool where 'Drew' was supposedly met, made his identification plausible. Hadford's claim, based only on riding a bike, was too speculative. The court further held that all plaintiffs stated a claim under small group defamation. The group of 53 was sufficiently small, and the article, read as a whole and including its allegations of other gang rapes at the house, plausibly implied that rape was a part of the fraternity's culture or initiation, and that all members at least had guilty knowledge of the crimes. In contrast, Erdely's statements on a podcast were non-actionable opinion, as she used speculative language and did not imply knowledge of undisclosed facts.
Concurring-in-part-and-dissenting-in-part - Lohier, Circuit Judge
Yes, as to the individual claims for Elias and Fowler, but No, as to the small group defamation claim. While the claims for Elias and Fowler plausibly allege they were individually identified, the majority improperly extends New York's small group defamation doctrine. The article does not explicitly state that all members were complicit, and interpreting it to do so requires a strained reading. The majority relies on a single, distinguishable intermediate appellate court case (Brady) and extends it to create a new rule that imputes 'guilty knowledge' to individuals simply because they live or work in close proximity to an alleged wrongdoer. This is a significant policy issue with potentially chilling effects on journalism that should have been certified to the New York Court of Appeals for a definitive ruling, rather than being decided by a federal court speculating on state law.
Analysis:
This decision significantly clarifies the 'of and concerning' standard at the pleading stage, confirming that a combination of circumstantial, non-unique details can plausibly identify an unnamed plaintiff. More importantly, it broadens the application of the small group defamation doctrine by allowing a claim to proceed based on the plausible implication of universal guilt or knowledge, even when the publication does not explicitly accuse all members. The ruling lowers the bar for group libel plaintiffs and creates a greater risk for publishers reporting on misconduct within organizations. The sharp dissent highlights the uncertainty of this area of New York law and underscores the tension between protecting individual reputations and preserving freedom of the press.
