The Never Ending Story of Rolling Stone’s “A Rape On Campus”

Three lawsuits: a dismissal, a verdict, and two settlements — but this case is still far from over.

The stormy days of September overwhelmed some significant Rolling Stone news. The surprise that Jann Wenner had put the magazine up for sale after decades of command and control did make a few pages, but the recent drama around the biography that Wenner commissioned and now hates has gotten more press than the magazine sale, much less the little tidbit of news that accompanied the announcement of sale.

Jann Wenner, publisher of Rolling Stone

On September 19, two days after Wenner announced the sale, the Second Circuit Court of Appeals reinstated the defamation case brought by the individual fraternity members falsely accused of gang rape in the magazine’s now-retracted story “A Rape on Campus”. A few reports mentioned this fact but not the possible connection.

A quick refresher on the fiasco and the three lawsuits arising from “A Rape on Campus”

In the summer of 2014 a freelance writer, Sabrina Erdely, sought a story about campus rape culture. She wanted a single story that showed “what it’s like to be on campus now … where not only is rape so prevalent but also that there’s this pervasive culture of sexual harassment/rape culture.” She found a woman with a story about a gang rape fraternity initiation ritual in the fall of 2012 at the University of Virginia and an eager editor at Rolling Stone magazine. Soon, in a total journalistic failure from reporting to fact checking to editorial oversight, Rolling Stone published, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA” in November 2014.

Sabrina Erdely, author of “A Rape on Campus”

The story went viral. Within a day the student dean, the fraternity, Phi Kappa Psi, where the attack allegedly took place, and UVA became symbols of rape culture, and three former members of the fraternity started receiving calls from the press as members likely involved in the events of that night.

Rolling Stone managing editor Will Dana

When others began to look into the story, however, it quickly fell apart. On December 5, then Managing Editor of Rolling Stone Will Dana, added a note to the top of the article telling readers that the magazine had lost confidence in the story. Rolling Stone did not retract the story until the spring of 2015, however, when a Colombia School of Journalism review commissioned by the magazine found systemic and catastrophic journalistic failure. Dana resigned a few months later.

After theColombia report, three defamation suits were filed against Rolling Stone, Sabrina Erdely, and Wenner Media, which publishes Rolling Stone. The student dean, Nicole Eramo, filled in federal court in Virginia. The fraternity, Psi Kappa Psi filed in state court in Virginia. The three fraternity brothers who were quickly identified by the media sued in federal court in New York.

Due to intricacies of defamation law, each case had its strengths and weaknesses. For instance, the dean and the fraternity were directly named, but as a group the fraternity’s damages were less concrete and court found the dean was a pubic figure requiring her to prove malice on the part of the defendants. Still, the jury found malice in Eramo’s case, but the defamation to her character was failure to act in the face of a sexual assault problem on campus, thus her damage award was not large. The jury awarded her 3 million, and she and the defendants later reached a confidential settlement.

The fraternity sued for 25 million but settled for 1.65 million earlier this year. As someone quipped to me, Jann Wenner can write a check for little sums like that. True, but that was only 2 of 3 lawsuits.

The extreme threat to Rolling Stone was always the individuals’ suit. The weakness there: the men were not specifically named. Not naming a party does not defeat a defamation action — people can figure out who someone is based on description or innuendo — but it does add an element to proving defamation, which the New York court thought the individuals did not meet. Thus, back in the summer of 2016, in the first action on any of the cases, the district court judge granted the defendants’ Motion to Dismiss the suit by the individual fraternity members.

It seemed that Rolling Stone’s extreme crisis had been averted. The big case got dismissed. The smaller cases settled for what was small money for Wenner.

But the fraternity brothers had appealed. They won that appeal a few weeks ago.

The connection between the case and the sale

On September 19th, the Second Circuit announced its panel decision reinstating the suit by the individual fraternity brothers. Two days earlier, Jann Wenner, who for decades has refused to give up control of the magazine he created and built, announced that Rolling Stone was for sale. I think these events are connected in more than time. Of all the defamation cases attached to the retracted story, the individual members’ one was the most dangerous to the magazine, and after Wenner’s testimony in one of the previous cases, he became the magazine’s biggest weakness. Wenner isn’t so much selling the magazine as the magazine is cutting him lose in a desperate bid to survive.

In the Eramo suit, Wenner’s testimony turned him into the magazine’s greatest liability.

Dean Nicole Eramo

As mentioned above the court in Virginia found that Dean Eramo was a public figure, and therefore, she had to prove malice on the part of defendants. In plain terms she had to show the defendants had a reckless disregard for the truth when they published the false statements about her. The jury easily concluded that Eramo had been defamed and that the author, Erdely, met the malice standard, but they gave Rolling Stone a bit more grace. They did not find malice on the part of Rolling Stone until Erdely confessed to them on December 4 and they republished the story on December 5. Specifically, the jury found that the note Will Dana added to the article on December 5 was a republishing in the legal sense and that republishing was done with reckless disregard for the truth.

Will Dana had testified that leaving the article up was Wenner’s idea. Wenner had testified that he even regretted the April retraction of the article, rationalizing that while that specific story might be false, the college campus rape culture is true and so the article should have remained up as testament to that truth.

The federal jury in Virginia disagreed. Their decision won’t be controlling in the New York court, but it is informative.

Twelve jurors who were told this tale bought none of it, and that’s when they were looking for malice and the statements against the plaintiff were not so awful. The New York jury will only be looking for a false statement and the false statement against these men is that they engaged in a brutal gang rape. Juries are unpredictable, but counsel for Rolling Stone probably doesn’t like their chances.

Furthermore, Wenner’s deposition can be reused and in addition to his gross misjudgment, he made statements such as, “It was never meant to happen this way to you. And believe me, I’ve suffered as much as you have. But please, my sympathies.” That is callous enough when speaking to Eramo who was accused merely of not reacting enough to offenses on campus. How will that statement sound when the plaintiffs are young men accused of a brutal sex crime and who Wenner still calls “the rapists”?

But worse than all of that Wenner’s defense is at odds with his lawyer’s arguments.

The notion of a campus rape culture is “inherently implausible”

One of the plaintiffs’ theories against the defendants was small group defamation. If a group is small enough and its individual members easily identifiable enough, then when someone makes a false statement against the group, they make a false statement against each individual member of the group. So if you report that Fraternity Chi engages in ritual gang rape as part of their membership rites, and Fraternity Chi is sufficiently branded as a group that the community easily identifies Mark Smith, Mike Jones, and Joe Black as members, then by defaming Fraternity Chi, you have defamed Mark, Mike, and Joe.

Protest on UVA campus

If the court allowed that theory to go forward (and they did) then these three members, and in theory any member of Phi Kappa Psi during the time period when the Rolling Stone article alleged that the fraternity used gang rape as an initiation ritual, could sue for defamation under a small group theory. It was a huge threat to Rolling Stone. Counsel needed to throw everything she had at it. And she did.

First she argued the the fraternity was a larger group, trying to defeat the classification by muddying identification with rushees, alumni, etc. Then counsel argued this:

But I think it is important to focus on, is it reasonable to assume, reading this article, that this really was an initiation ritual that required — over years — to enter to…that all members had to participate? And there’s many statements in this article that, that, that, is inconsistent with that…and the court has to look at the article in context. It is called “A Rape on Campus.” It is referring to Jackie’s rape. The subhead, which encapsulates the content of the article refers solely and exclusively to Jackie’s rape. At another point in the article, it talks about, that the culture of UVA, the rapes at UVA, was something that was in the norm and keeping with other colleges. I would suggest that all of us would agree that a rituated, that an initiation ritual that applies across, at least under their standards, two to three years where all members were required to engage in rape to enter a fraternity would not be something that is consistent and within the norm and consistent with other colleges. It is arguably inherently implausible.

In case the reader is too stunned to believe this says what it seems to say, yes, one of Rolling Stone’s defensive arguments at the Second Circuit Court of Appeals was that the idea that fraternities engage in ritual rape as described in the article is so absurd that the public is unreasonable for believing it. There’s no defamation because, at least concerning fraternities, rape culture is inherently implausible.

Before readers’ indignation heats (or perhaps after it cools): she’s not crazy. This is in fact the analysis that unraveled the story.

The first writing questioning the story appeared on the web on November 24, five days after the story appeared. Vintage media guy Richard Bradley described what troubled him:

One must be most critical about stories that play into existing biases. And this story nourishes a lot of them: biases against fraternities, against men, against the South; biases about the naivete of young women, especially Southern women; pre-existing beliefs about the prevalence — indeed, the existence — of rape culture; extant suspicions about the hostility of university bureaucracies to sexual assault complaints that can produce unflattering publicity. And, of course, this is a very charged time when it comes to the issue of sexual assault on campuses. Emotion has outswept reason. Jackie, for example, alleges that one out of three women who go to UVA has been raped. This is silly…. Finally there’s the narrative of the gang rape itself. It is a terrible story — so terrible that, if it weren’t for the power of our preexisting biases, we would be hard-pressed to believe it.

He goes on to write that his analysis does not mean that the story is untrue, that such terrible things cannot happen, but that it requires us to critically examine the facts presented, which had not been done in this case. He laid out what in hindsight looks like a road map to the fabrication.

But regardless of what Bradley or the lawyer thinks we all would agree on as to the story’s plausibility, Sabrina Erdely thought the story she wrote captured the current campus atmosphere. She went looking for a story to expose the hidden truth. Her editors and fact checkers were so convinced it was plausible, they did not critically examine it. And Jann Wenner is so convinced of the plausibility of campus rape culture, that he testified he wouldn’t have retracted the story even after journalists, law enforcement, then journalism experts declared it rubbish. He even still calls the men “the rapists” in his deposition (which they might add to their suit but for the fact that sworn testimony is one of the privileged statements not actionable for defamation).

Three Practical Takeaways

Beyond the legal theories, three realities stand out:

One: Jann Wenner is the magazine’s biggest liability. This case is not a sure thing — nothing with a jury ever is — but three men stand falsely accused of a brutal gang rape. I stand by my assessment from 2014, when the conventional wisdom had them not sue or maybe sue then settle. These guys aren’t out for money. They are out for honor: theirs and that of all the men falsely accused after them. The threat this suit poses to Rolling Stone is fatal, and as Jann Wenner just doesn’t get it, he has to be cut loose in any attempt to save the magazine.

Two: while some portion of the public still sees the idea of a pervasive rape culture as patently absurd, outlets like Rolling Stone, individual writers, various advocacy groups, including a network of federally supported propaganda operations, have had plenty of success pushing the idea of a whole rape culture. Public discourse on sexual assault has deteriorated. One side tends to claim these things never happen while the other side insists they always do. The truth is not in the middle, but it is in between. These attacks don’t happen everywhere or to everyone. But they do occur, sometimes in pockets of subcultures. Recent news stories testify to a rape subculture in Hollywood and news media. (Perhaps that’s why journalists and Hollywood think it is so prevalent. It is what they know and so they project.) Also, some predators are just that, individual predators. All of that truth, however, gets lost in the debate posturing.

And that is the third and most terrible takeaway of this whole fiasco: in our determination to have our side be right — in our stubborn insistence that rape culture is a matter of always or never — we’ve lost the ability to spot the actual threat. Whether, for example, a girl of 21 thinks everyone a threat and every action an attack or that all that “rape culture talk” is nonsense and she perceives no one to be a threat, she isn’t assessing. She isn’t discerning. And for a predator, that inattention is item number 1 on the checklist when looking for a target.