A defamation lawsuit against "Rolling Stone" over the magazine's debunked article about a gang rape at the University of Virginia was reinstated Tuesday by an appeals court in a manner that one judge says would allow any member of a school fraternity to join the lawsuit.
The 2nd U.S. Circuit Court of Appeals said three former students can sue, in part because the November 2014 article could enable a reader to conclude that many or all members of a fraternity participated in gang rapes as an initiation ritual and that all members knowingly ignored the brutal crimes.
An investigation by Charlottesville, Virginia, police found no evidence to back up the claims of the woman identified in the article as "Jackie," who told the magazine she had been raped by seven men at a fraternity house in September 2012.
"Rolling Stone" later retracted the article and apologized.
A lower-court judge had thrown out the lawsuit by three Phi Kappa Psi members who graduated in 2013.
In a statement Tuesday, "Rolling Stone" said it was disappointed by the 2nd Circuit ruling but was "confident that this case has no merit."
In restoring the lawsuit, the appeals court noted that the article stated that two other female students reported to Jackie that they had been gang-raped at the fraternity and that a decades-long "trail" of sexual violence included a gang rape committed at the fraternity in 1984.
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"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,'" according to the 2nd Circuit opinion written by Manhattan District Judge Katherine B. Forrest, sitting in on the appeals panel. "A reader of the article could also plausibly conclude that, even if all members of Phi Kappa Psi did not commit gang rape, they all knew that their fraternity brothers had."
Circuit Judge Raymond J. Lohier Jr., who partially agreed with and partially disagreed with the majority opinion, said the other two judges on the panel had reached a conclusion that would let every Phi Kappa Psi fraternity member hold "Rolling Stone" liable under New York defamation law, which permits claims to be brought by members of small groups who are defamed. There were 53 members of the fraternity at the time.
"Until this error is corrected by the New York Court of Appeals, publishers should beware," he wrote.
"Rolling Stone" itself is now on the market, with founder Jann Wenner planning to sell his company's controlling stake in the magazine that chronicled the music and politics of the counterculture movement.