Judge Questions "Malice" Theory in "Shitty Media Men" Libel Suit

Stephen Elliott - Getty - H 2019
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Stephen Elliott hasn't fully failed in his lawsuit targeting "Shitty Media Men" creator Moira Donegan and 30 anonymous women, but he has taken some knocks.

Elliott claims being defamed upon the anonymous suggestion in a spreadsheet that he is a rapist. In his complaint, the widely published author and director of About Cherry and Happy Baby maintains that the rape allegation is false — and that others should know better, thanks to his published preference of enjoying the submissive end of aggressive sex.

On Friday, attorneys for Elliott and Donegan appeared at a premotion conference before New York federal judge LaShann DeArcy Hall.

The beginning of the hearing brought mixed news for Elliott.

On one hand, Judge Hall wasn't inclined to immediately toss the lawsuit against Donegan on the basis that the claims ran afoul of Section 230 of the Communications Decency Act, which immunizes providers of interactive computer services against liability arising from content created by third parties. The judge said that if the only allegation in Elliott's complaint was that Donegan created the list and created the headers, she'd find cover under the statute. But the judge referenced the portion of Elliott's complaint hinting of a more active role concerning what was published, and given that allegations must be accepted as true at this stage, the judge wasn't ready to settle the issue of responsibility.

Donegan had better luck in dismissing a claim of intentional infliction of emotional distress. Even Elliott's lawyers had to admit that the claim fell within the ambit of defamation, and based on precedent, it was doomed.

So back to defamation...

The key issue at the moment in the case is whether Elliott, as a public figure, can demonstrate actual malice on Donegan's part.

"Let's assume she hates men," said Hall. "I don't see how you can go from her generalized hatred of men to a reasonable inference of malice."

Nicholas Lewis, attorney for Elliott, identified something else that Donegan stated on social media — "I'm enjoying the witch-hunt." According to Lewis, this amounted to some indication that Donegan possessed knowledge of the falsity that Elliott was a rapist.

The judge didn't quite get the argument.

"What if there's an actual witch?" asked Hall. "There are lots of people who go around saying that folks are engaged in witch-hunts, and we can all have our own beliefs as to whether or not witches exist."

Quickly thereafter, according to the transcript, Elliott's lawyer swerved to a different theory of malice. He pointed to a case involving one author's broadside against the Church of Scientology as standing for the proposition that actual malice may be shown when defamatory statements are based wholly on an unverified anonymous source.

What followed was some discussion about whether Elliott had actually pleaded reliance on an anonymous source (given the possibility that the rape accuser was known to spreadsheet contributors) plus some attempts by Elliott's lawyer to import some contributory liability theories.

As for Donegan's side, Roberta Kaplan argued that the Scientology case was decided before the Supreme Court ruled in a pair of cases that federal judges could address the plausibility of claims even at the motion to dismiss phase.

The judge expressed doubts about Elliott's malice theories, but he will at least get a shot to amend his complaint to more clearly identify knowledge of falsity or reckless disregard of truth. And even if Donegan is dismissed from the case, there's still the aspect of "Jane Does" being sued — which has provoked a battle with Google over broad subpoena demands.

At the hearing, Hall noted that she "can't make a determination at this point as to how and which discovery would unfold."