Rolling Stone defamation lawsuit over debunked rape story revived by federal court

April 10, 2014: Jann Wenner, co-founder and publisher of Rolling Stone magazine, speaks during the 29th annual Rock and Roll Hall of Fame Induction Ceremony at the Barclays Center in Brooklyn, N.Y. (Reuters)

The hits just keep on coming for Rolling Stone.

Just a day after publisher Wenner Media said the magazine is up for sale, a New York federal appeals court has revived a defamation lawsuit against Rolling Stone over its debunked 2014 article about a University of Virginia gang rape.

Judge Katherine Forrest of the 2nd U.S. Circuit Court of Appeals decided that the lower court prematurely struck down claims from George Elias and Ross Fowler while correctly rejecting Stephen Hadford’s, according to The Hollywood Reporter. All three were former Phi Kappa Psi fraternity members and graduated from the school in 2013.

"While it is a close call, we conclude on balance that the complaint plausibly alleged that the purportedly defamatory statements in the Article were 'of and concerning' Elias and Fowler individually," she wrote in an opinion. "At this stage of the litigation, Plaintiffs need only plead sufficient facts to make it plausible—not probable or even reasonably likely—that a reader familiar with each Plaintiff would identify him as the subject of the statements at issue. With regard to the Article, Elias and Fowler have met this burden."

The debunked article described a student’s account of being raped by numerous fraternity members at their house in 2012. Authorities investigated claims by the woman in the article – who was identified as “Jackie” – and found them unsubstantiated.

Elias’ allegations that he was identifiable in the article because he lived in the fraternity house’s second floor – where the rape was reported to have happened – and had the only bedroom large enough to fit the description of the scene was enough for the appeals court, The Hollywood Reporter reported. The court also gave Fowler the benefit of the doubt over his allegations that he was identifiable because he was the fraternity’s rush chair and a frequent swimmer, it added. The article describes how the woman met one of the fraternity members at a pool and the rape was linked to its recruitment process.

Hadford’s claims did not survive scrutiny with the court, as his allegation that he was identifiable because he rode his bike around campus and the article said the woman saw "one of the boys riding his bike on the grounds,” was not enough of a connection.

"There is no allegation that it is unusual for UVA alumni to bike through campus such that a reasonable reader familiar with Hadford’s biking habits would conclude that the Article plausibly referred to him,” The Hollywood Reporter cites the opinion as saying.

The 2nd Circuit court also ruled that a group defamation lawsuit from the entire fraternity could go forward, saying the headcount of its 53 members is “sufficiently small” to make a case.

The lower court had also agreed with that sentiment but reached a conclusion that the article didn’t explicitly state that the fraternity required all of its pledges to participate in a rape, The Hollywood Reporter reported.

Meanwhile, sources told the New York Post that the music, politics and pop culture magazine is struggling to attract potential buyers as consumers are increasingly straying away from purchasing glossy print titles at newsstands.

“I think he will have a hard time commanding a good price,” one source said, referring to Jann Wenner, one of Rolling Stone’s co-founders.