Elias v. Rolling Stone LLC
872 F.3d 97
2d Cir.2017Background
- Rolling Stone published a November 19, 2014 online article by Sabrina Rubin Erdely recounting an alleged gang rape at UVA’s Phi Kappa Psi house based on source “Jackie.”
- The article named details (location in the house, quotes implying an initiation ritual, references to other alleged rapes) that led readers to infer fraternity involvement; it received wide attention and millions of views.
- Washington Post reporting revealed discrepancies; Jackie’s account was later determined to be fabricated and Rolling Stone retracted the article and apologized on April 5, 2015.
- Three former Phi Kappa Psi members (Elias, Fowler, Hadford) sued for defamation, alleging the Article and a subsequent podcast identified them individually and collectively as perpetrators or knowingly complicit.
- District Court dismissed the complaint under Rule 12(b)(6) for failure to plead statements “of and concerning” each plaintiff and held the podcast statements were non-actionable opinion.
- On appeal the Second Circuit: affirmed dismissal as to the podcast and Hadford individually; reversed as to Elias and Fowler individually and reversed as to small-group defamation (Phi Kappa Psi chapter), remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Podcast statements: actionable fact or non-actionable opinion? | Erdely’s podcast statements implied fraternity-wide knowledge and were factual assertions supporting defamation. | Podcast remarks were speculative conjecture and framed as opinion. | Held non-actionable opinion; dismissal affirmed. |
| Individual identification — Elias: Article "of and concerning" Elias? | Facts (class year, lived in a uniquely accessible second-floor bedroom large enough for ten people, contemporaneous identification by others) made it plausible readers would identify Elias. | Article lacked specific distinguishing details tying allegations to Elias’s room. | Held plaintiff plausibly alleged the Article was "of and concerning" Elias; claim survives pleading stage. |
| Individual identification — Fowler: Article "of and concerning" Fowler? | Fowler’s role as former rush chair and regular presence at the pool (where Jackie met “Drew”) made it plausible readers would identify him as implicated in an initiation-related assault. | Statements could be read innocuously (braggadocio) and do not distinctly point to Fowler. | Held plaintiff plausibly alleged the Article was "of and concerning" Fowler; claim survives pleading stage. |
| Small-group defamation (Phi Kappa Psi chapter): Did Article defame all chapter members? | The Article’s descriptions (multiple alleged gang rapes, initiation-like quotes, historical incidents) could be read together to imply many/all brothers participated or had guilty knowledge; chapter size (~53) is within small-group precedent. | Article did not expressly or plausibly impute culpability or guilty knowledge to all members; relying on podcast to supply implication is improper. | Held plausible that the Article, read as a whole, could defame the small group (Phi Kappa Psi chapter); plaintiffs may proceed on small-group theory. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- New York Times Co. v. Sullivan, 376 U.S. 254 (defamation requires public to recognize plaintiff as subject)
- Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226 (2d Dep’t 1981) (small-group defamation doctrine example)
- Three Amigos SJL Rest., Inc. v. CBS News Inc., 28 N.Y.3d 82 (discusses group libel and individual-member reference)
- Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373 (court must read disputed language in context of whole publication)
- Gross v. New York Times Co., 82 N.Y.2d 146 (framework for distinguishing fact from non-actionable opinion)
- Chase Grp. Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146 (Rule 12(b)(6) standard; 2d Cir. de novo review)
- Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163 (opinion vs. fact analysis in defamation)
- Algarin v. Town of Wallkill, 421 F.3d 137 (discusses limits of small-group defamation)