In an opinion this week by Judge Forrest (sitting by designation), the Second Circuit reversed in part Judge Castel’s dismissal (covered here) of claims brought by a University of Virginia fraternity against Rolling Stone magazine over a widely discredit article telling the story of a source named “Jackie” being gang raped at a fraternity party.
The Second Circuit found that the complaint made out a plausible claim of “small group defamation” :
Taking the allegations in the Article together, a reader could plausibly conclude 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. . . .
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
Judge Lohier dissented, for reasons similar to those expressed by Judge Castel:
Though the article discussed issues of sexual assault on college campuses generally (including at the University of Virginia and Phi Kappa Psi), it focused largely on one specific alleged rape. Interpreting the article to mean that all members of the fraternity were either aware of or committed acts of rape warps the language beyond its plausible meaning and surrounding context