Miltenberg: “‘Sh*tty Media Men’ List Creator Can’t Ditch Defamation Suit,” Law 360


A New York federal judge on Tuesday refused to dismiss a defamation lawsuit against the creator of a “Shitty Media Men” list that documented sexual misconduct accusations, ruling that a writer named on the list wasn’t a public figure whose ability to sue for libel was restricted.

U.S. District Judge LaShann DeArcy Hall denied journalist Moira Donegan’s bid to end the 2018 suit from Stephen Elliott, rejecting Donegan’s argument that he qualifies as a limited-purpose public figure. The judge’s finding removes a requirement that Elliott plead so-called actual malice, or intentional lies or disregard for the truth.

Judge DeArcy Hall also denied Donegan’s bid to dismiss the suit based on her assertion that she is protected by Communications Decency Act immunity, which largely shields website operators from liability for third-party content posted on their sites. However, the judge noted in her conclusion that CDA immunity could prove to be a gating issue.

“The court wishes to avoid an unnecessary expenditure of judicial resources,” the judge said. “As such, the parties shall proceed without delay to narrowly tailored discovery to address factual issues related to defendant’s CDA immunity defense.”

Donegan created the list as a Google document in October 2017 while the #MeToo movement was gaining steam, aiming to give women a place to anonymously warn others about allegedly abusive men in the media industry. She quickly pulled the list down when it went viral, but later claimed ownership in a blog post.

Elliott sued in October 2018, claiming he had been defamed by an anonymous contributor who added him to the list with the note “rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment.”

If the case moves forward, Elliott also intends to unmask the anonymous contributors to the list by subpoenaing Google and internet service providers for identifying information.

Donegan told the Brooklyn federal judge in June 2019 that Elliott cannot possibly prove she acted toward him with actual malice.

To do so, Elliott would have to prove that Donegan either knew the claims against him were false, or that she had strong reason to believe they were. He’s proven neither, she said.

Courts require public figures to prove actual malice if they want to sue for defamation. It’s a deliberately difficult standard, designed to prevent free speech from being stifled by litigation. But on Tuesday, Judge DeArcy Hall found that Elliott doesn’t have to prove malice because he is not a public figure.

Elliott did not voluntarily inject himself into the controversy at the center of the litigation and assume a position of prominence within it, as would be required for him to be a limited-purpose public figure, the judge said.

“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,” she said. “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.”

Donegan’s attorney, Roberta Ann Kaplan, of Kaplan Hecker & Fink LLP, said that they disagree with how narrowly the court defined the issues raised by the #MeToo movement.

“As the court foreshadowed in its ruling, our client has a strong defense under the Communications Decency Act and we look forward to moving ahead on that issue so that our client can put this lawsuit behind her once and for all,” she said.

Elliott’s attorney, Andrew T. Miltenberg of Nesenoff & Miltenberg LLP, said that they are pleased that the case is moving forward and looking forward to discovery.

Elliott is represented by Andrew T. Miltenberg and Nicholas Evan Lewis of Nesenoff & Miltenberg LLP.

Donegan is represented by Roberta Ann Kaplan, Julie E. Fink, Martha Fitzgerald and Joshua Adam Matz of Kaplan Hecker & Fink LLP.

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