Judge Re-Instates Group Defamation Lawsuit by UVA Fraternity Against Susan Erdeley and Rolling Stone for Fabricated Rape Story

A trial judge dismissed the suit, finding the allegations could not support a "group defamation" finding. Group defamation suits are a bit tricky: You're not alleging that someone said you, personally, committed a heinous act, but that a "small" (that's the legal requirement) group of people committed the heinous act -- which group includes you, so you may be subject to a diminished reputation due to the smearing of the group. If the group is smeared, then you, as a member of the group, are likely to have a damaged reputation.

But it's a balancing act of deciding how "small" the group has to be in order to say that smearing that group smears an individual (unnamed) member of it.

The trial court judge dismissed the fraternity student's individual defamation claims, and also their "small group" defamation claims.

An appeals court has reversed that ruling and re-instated the small group defamation suit, as well as two (of the three) individual defamation suits: So the suit will now proceed, and, if the past is prologue, the rest of the media will duly ignore.

The one thing Erdeley won on was the claim that remarks she made in an NPR podcast were defamatory. But the court reinstated the defamation suit as regards her Rolling Stone article.

The ruling is here.

The small group defamation charges, the appellate court found, should stand because it is very unlikely that a gang rape could occur in a fraternity house without the other brothers knowing. Therefore, even if Erdeley wasn't naming them as perpetrators of the rape, her article sure suggests that the other brothers are somehow guilty in it, and tainted by it, because -- and this is just common sense -- if there was a gang rape, they must have known; and as they never reported such a gang rape, they must have chosen to actively conceal a heinous crime.

The court wasn't bothered by the size of the "small group." Usually, a small group is 25 members or fewer; but New York (the state the lawsuit was filed in) casts no firm upper bound on the number. That the fraternity had 53 members is no bar to suit for small group defamation, the appellate court found. (Actually, the trial court found that too, but the appellate court affirms.)

Furthermore, the appellate court found that Erdeley/Rolling Stone had strongly implied in the article that a gang rape was a common initiation ritual at the fraternity -- which would obviously implicate all members.

Consider first the description of Jackie’s purported rape.  Not only did nine men associated with the fraternity participate in the alleged offense, but several made comments -- "Don't you want to be a brother" and "We all had to do it, so you do, too" -- implying the event was part of an initiation ritual.   

Other allegations supported that implication. For example, the Article stated that two other female students reported to Jackie that they had been gang‐raped at the fraternity, suggesting that gang rapes regularly occurred at Phi Kappa Psi. Moreover, the Article described a decades‐long “trail” of sexual violence leading back to the fraternity, including a gang rape committed there in 1984.  Connecting the dots, a reader could plausibly conclude that Phi Kappa Psi had a long tradition of requiring pledges to participate in gang rapes as a condition of membership.

Indeed -- that is precisely what I concluded when I first skimmed the story, and was more naive about the media straight-up inventing #FakeNews.

The court also reinstated two individual defamation cases. One man claimed individual defamation on the grounds that he occupied the only room in the frat that corresponded to the description that Jackie Coakley provided, and ergo, he was individually defamed, as most people would know (or could easily find out) the alleged "rape room" was his. Another man's claim was reinstated because Jackie Coakeley claimed one of the rapists was a lifeguard at the school's pool; the man suing wasn't a lifeguard, but was known to frequently use the pool, and therefore it is plausible (if not exactly a slam-dunk) that his participation in the non-rape was strongly implied by the article.

The New York Times had an interesting (as usual) way to describe Jackie Coakley's attempt to pity-pressure a boy into liking her by fabricating a group rape: They claimed that her rape story was merely "unproven:"

Well, the appellate court here is a bit more firm on the question of whether this was merely an "unproven" gang rape or a fabricated gang rape. They say, as a legal matter, it's the latter:

I got all of this from KC Johnson's timeline -- not seeing much about it in the media. Go figure.

He cites another interesting story the media isn't much interested in -- the public overwhelmingly agrees with Molly DeVos' framing of the issue -- respecting complaining witnesses, but also respecting due process rights of the accused -- in Title IX college rape court cases.

By the way: Jann Wenner just put his musty old hippie piece of shit magazine Rolling Stone up for sale.

Greg Gutfeld said he's trying to arrange some kind way to buy it. Why, I wouldn't know. The Travelling Wilburies are defunct so what does Rolling Stone have to write about any more?

BTW: You might remember the frat itself settled with Rolling Stone for $1.65 million.

So what's up here?

Well, that was the frat suing, the organization itself. These are suits by individual members of the frat, two suing for individual defamation, and several suing for group defamation.

posted by Ace at 03:27 PM

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