"On the cover of the Rolling Stone" -- sometimes a bad thing

Rolling Stone used to be the leading pop culture magazine in the country, so much that someone wrote a song about making it to the cover. Times have changed. Now the magazine is facing a libel suit over a false campus rape article. The Court of Appeals finds the lawsuit plausibly claims Rolling Stone libeled two students whom the article implied had raped a female classmate.

The case is Elias v. Rolling Stone, LLC, decided on September 22. The article quoted a female student who said that university fraternity brothers had gang raped her in a frat house. The article did not identify the students by name, but the students claim the article was "of and concerning" them because it described the layout of the frat house and quoted a frat brother as suggesting the rape was part of a fraternity initiation process. The article also claimed that one of the rapists was a guy who rode his bike around on campus. Rolling Stone later retracted the story, stating that the female student was untrustworthy in light of discrepancies in her account. Hence, the defamation case.

A quick flip through any defamation treatise will show that libel and slander doctrine has nooks and crannies that can doom any case. One problem is when the defamation victim is not named in the article. He can still sue for libel if the article was "of and concerning" him. That alone has yielded volumes of case law. Count this case among those cases. The Court of Appeals (Cabranes and Forrest [D.J.]) says two of the three male plaintiffs have plausibly alleged in the complaint that the Rolling Stone article was about them. One, Elias, notes that he lived in the frat house and his bedroom where the incident arose was sufficiently described in the article. You and I would not know the article was about Elias, but anyone familiar with the frat house would identify the room as Elias's room. A similar analysis applies to a second plaintiff, Fowler, who was the rush chair during that academic year and was presumably the one who egged on the other "rapists." Drew also used the campus pool regularly, which is where the female "victim" was said to have met him prior to the incident.

The third plaintiff, Hadford, cannot proceed with his claim, however, even though the article said one of the rapists was an alum who rode his bike around campus. That does describe Hadford. But while it is "possible" the article referred to Hadford, it is not "plausible." That distinction arises from the Iqbal pleading case that the Supreme Court issued in 2009, making it more difficult to survive motions to dismiss under Rule 12. There is no allegation that it was unusual for an alum to bike through campus "such that a reasonable reader familiar with Hadford's biking habits would conclude that the Article plausibly referred to him."

We also have a "small group" defamation claim, which exists if the statement defames members of a small group. "An individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing he is a member of the group." This fraternity -- with 53 members -- is not too large that it cannot bring this claim. The complaint plausibly asserts 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." The plaintiffs may proceed with this claim.

Judge Lohier dissents in part, stating that "publishers should beware" now that the Second Circuit has resolved the small group defamation claim against Rolling Stone. He says the article does not allege that all fraternity members were complicit in the rape. "To the extent that the article implicates 'some' or even 'many' rather than 'all' of the members as rapists, we suggested in Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005) [a case I argued and lost], that it not actionable under the small group defamation doctrine." Were it up to Judge Lohier, this case would be certified to the New York Court of Appeals to clarify this issue.