"Sh**ty Media Men" List Creator Unable to Escape Libel Suit

The judge concludes that Stephen Elliott, an author who was accused of rape, is not a public figure who needs to show actual malice to prevail.
Screengrab/New York Times
Moira Donegan

In a decision with potentially large ramifications, New York federal judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.

The complaint comes from Stephen Elliott, a widely published author and director of About Cherry and Happy Baby who was upset about his inclusion in a spreadsheet that circulated in the wake of allegations against Harvey Weinstein. That spreadsheet — called "Shitty Media Men" — allowed women to anonymously contribute stories of being victims of sexual misconduct. Elliott had an entry. He allegedly was someone facing "rape accusations, sexual harassment, [and] coercion."

Elliott claims Donegan and various anonymous women defamed him, and the starting point for this case was the question of whether Elliott was a public figure who would have to show actual malice.

In today's decision, Judge Hall defines the issue of who qualifies as a limited-purpose public figure rather narrowly, specifically on the issue of whether Elliott voluntarily injected himself into a public controversy.

In defining that public controversy, the judge says it is "inextricably linked to what has been called, in shorthand, the '#MeToo' movement," and not just any aspect of “sex, consent, morality and power” but in particular, the judge says "the burgeoning #MeToo movement was focused on how power dynamics and outdated expectations of gender roles in the workplace have worked to silence women."

Elliott may have written about sex and power, but that's not enough, in the judge's eyes.

"Plaintiff’s degree of involvement in a controversy surrounding sexual assault, sexual harassment and consent in the workplace, if any, is de minimis," states the opinion. "Defendant directed the Court to only a few tangential references to sexual harassment or lewd jokes in the workplace in Plaintiff’s writing and interviews. And the Court is not willing to find that Plaintiff’s more extensive writings and interviews about sex, BDSM, and sexual assault—unrelated to workplace issues—transforms him into a public figure with respect to the controversy here."

Since Elliott isn't deemed to be a public figure, his burdens in this defamation claim are lower, and he's able to survive a motion to dismiss. As a result of this, the case is headed toward exploration of Section 230 of the Communications Decency Act, the very same law that is the subject of controversy these days for affording tech services immunity for third party content.

In relevant part, CDA 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

As the one who circulated the spreadsheet so that other women could contribute entries, Donegan "qualifies as a provider of an interactive computer service," writes Judge Hall.

But the judge then adds, "Conversely, the Court is unable to find that it is evident from the face of the complaint that the allegations against Plaintiff included in the List were provided to Defendant by another information content provider."

Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.

Here's the full opinion.