## Facts

- Rolling Stone published an online article alleging a violent gang rape of a University of Virginia student (“Jackie”) at the Phi Kappa Psi fraternity house, depicting it as part of a fraternity initiation ritual and attributing it to “brothers who graduated in 2013,” without naming individuals.
- The author later discussed the article on a podcast, repeating and commenting on aspects of the narrative and fraternity culture.
- Subsequent reporting and investigations revealed Jackie’s account was fabricated; Rolling Stone retracted the article and issued an apology.
- Three UVA undergraduates and Phi Kappa Psi members in the class identified by the article sued for defamation, alleging the publication identified them:
  - Individually, through contextual details (e.g., a second-floor bedroom accessible by a staircase; meeting at the university pool; later being seen bicycling on campus).
  - Collectively, as members of a small and identifiable group (the fraternity’s 2013 graduating cohort) allegedly responsible for the described assault and related misconduct.
- The district court dismissed all claims under Rule 12(b)(6), finding the statements were not “of and concerning” any plaintiff and rejecting small-group and podcast theories.

## Issues

1. Whether the complaint plausibly alleged the article was “of and concerning” Elias, Fowler, and Hadford individually, despite not naming them.
2. Whether the complaint plausibly stated a claim for small-group defamation based on statements about the fraternity’s identifiable 2013 cohort.
3. Whether the podcast statements were actionable defamation or protected nonactionable opinion/commentary.

## Decision

- Affirmed dismissal of all defamation claims based on the podcast.
- Affirmed dismissal of Hadford’s individual defamation claim for failure to plead “of and concerning.”
- Reversed dismissal of Elias’s and Fowler’s individual defamation claims based on the article and remanded.
- Reversed dismissal of the small-group defamation claim and remanded as to all plaintiffs.

## Legal Principles

- A defamation plaintiff must plausibly plead that the challenged statement is “of and concerning” the plaintiff; naming is unnecessary if readers acquainted with the plaintiff could reasonably understand the statement to refer to him.
- At the pleading stage, sufficiently specific contextual details can support a reasonable inference of identification; generic similarities are inadequate.
- Small-group defamation may be actionable when allegedly defamatory statements concern a relatively small and identifiable group such that readers could reasonably understand the charge to apply to each member.
- Opinion and generalized commentary not conveying verifiable facts—particularly in a commentary format—are not actionable as defamation.

## Conclusion

The Second Circuit held that the complaint plausibly linked the article’s identifying details to Elias and Fowler and plausibly alleged defamation of an identifiable small group, requiring further proceedings, while concluding that the podcast content constituted nonactionable opinion and that the article’s bicycle-related detail did not plausibly identify Hadford individually.


Elias v. Rolling Stone LLC, 872 F.3d 97 (2d Cir. 2017)