A Charlottesville Circuit Court refuses to dismiss a defamation suit filed by Phi Kappa Psi fraternity based on statements made in defendant Rolling Stone magazine about a purported gang rape at the fraternity’s house on the UVa campus; the court finds the article, as pleaded, can be reasonably viewed as “of and concerning” plaintiff, as being defamatory and that it is factual and the statements can be proved as true or false.
In the context of demurrers filed in a defamation case, many of the cases and counsel have asserted that the court has a “gatekeeping function,” and must determine whether the article in question is capable or susceptible of defamatory meaning, whether it is capable of being reasonably understood to refer to the plaintiff and whether it is capable of being proved true or false.
Even with this standard, in considering a demurrer, the court should not engage in evaluating evidence outside of the pleadings. So it is the facts as pleaded upon which the court must make its ruling. For anything outside of the pleadings, the court would have to reserve its gatekeeping function for trial, before submission to the jury.
However, in this case, plaintiff made the entire article – in fact both the print and online versions – an exhibit to the complaint. Therefore, in my view, the entire article is made a part of the complaint for purposes of notice, allegations and consideration of the demurrer.
The article that appeared in Rolling Stone magazine on Nov. 19, 2014, details a violent rape as recounted by the purported victim, which allegedly took place at plaintiff Phi Kappa Psi (PKP) fraternity house on the University of Virginia grounds, at a fraternity function and perpetrated by individuals associated with the fraternity. In the article PKP is mentioned at least 18 times by name. There are at least nine other references to “that fraternity,” “a frat,” “the fraternity,” “his frat,” etc., which in context specifically refer to PKP at UVa. There are at least eight times where the term “gang rape” is used, many in the same phrase or sentence as “Phi Kappa Psi” or its variations.
Whether the complaint states a cause of action for defamation turns on three points or inquiries: Whether the article is of, about, concerning or focused on plaintiff; if so, whether the article is defamatory of plaintiff; and whether the statements are factual in nature and susceptible of being proved true or false, or just opinion.
In the complaint, plaintiff alleges numerous points at which the PKP fraternity at UVa is mentioned, not just as the location of the alleged offense, but as the actual offender, the “adversary” who must be proceeded against. I do not recall any other fraternity besides PKP being mentioned by name; it is certainly the only one repeated over and over. The online article includes three photographs of the PKP fraternity house, two from the outside and one on the side of a room, all with identifying captions. The print article has the inside photo, but PKP is not identified and it does not have the two outside photos. Further, there are at least six references in two pages to “gang rape” linked to PKP, and not all describing one event.
One cannot read these latter portions and not see that it is a reasonable interpretation that the article is singling out PKP at UVa, not some other fraternity or fraternities in general. No other fraternity is named or alluded to. The fraternity itself is repeatedly identified and mentioned and there are facts from which it can be reasonably inferred that the fraternity approved, condoned, supported and even encouraged or facilitated such actions of the various unnamed or unknown (or nonexistent) individuals.
Whether the article was focused on PKP may be a matter for the fact finder – the jury or judge – to decide. But the court finds that the article is certainly capable or susceptible of the interpretation that if it is defamatory, it is defamatory as to PKP and that in the article there is a clear basis from which to argue the primary focus of the article was PKP at UVa.
The repeated references to “gang rape”, in conjunction with the fraternity, along with specific behavior, acts and statements described or repeated, are clearly capable of and susceptible to defamatory meaning. These are direct statements, not just indirect or innuendo.
In the article, there were numerous statements that are factual assertions and demonstrably true or false: whether there actually was a gang rape; whether there was a broken glass table so Jackie got shards in her back; whether the chief rapist “Drew” ever existed and worked at the UVa pool; whether there was a PKP event, or whether anyone sexually assaulted Jackie in any way resembling the depiction in the article. It could be proved true or false whether one of the purported individuals said, “We all had to do it.” These are all factual assertions, susceptible of proof. It could also be proved whether Dean Eramo said what was attributed to her – “No one wants their daughter to go to the rape school” – or whether Jackie’s friends discouraged her from reporting the “rape.”
Demurrer overruled on all three grounds asserted by defendants.
Phi Kappa Psi v. Rolling Stone (Moore) No. CL 15-479, Aug. 31, 2016; Charlottesville Cir.Ct.; Thomas E. Albro, Rodney A. Smolla for plaintiffs; W. David Paxton, Elizabeth McNamara, Alison Schary for defendants. VLW 016-8-095, 12 pp.