Elliot v. Donegan

District court declines to dismiss defamation suit against creator of “Shitty Media Men” list, holding that plaintiff, named on list, was not limited-purpose public figure and did not need to plead actual malice. 

Plaintiff Stephen Elliot is an author and content creator whose work—both fiction and nonfiction—is known to depict graphic and violent scenes of sexual assault, harassment, child abuse and BDSM. Defendant, journalist Moira Donegan, created a Google spreadsheet in October 2017 titled “Shitty Media Men,” which aimed to provide women in the media industry with a platform to anonymously warn others about men who allegedly engaged in sexual harassment, especially in the workplace. The spreadsheet was circulated via an email link, and anyone with the link could edit the spreadsheet anonymously. At the time, the #MeToo movement had “catapulted into the public’s consciousness” in the wake of numerous published allegations of sexual harassment by Hollywood producer Harvey Weinstein. Soon after defendant’s spreadsheet was circulated, an anonymous contributor added plaintiff’s name with a note reading: “rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment.” Subsequently, plaintiff was identified on the list as having been accused by multiple women of physical sexual violence. Elliot sued Donegan and the anonymous contributors for defamation of character.

Dismissal for Failure to State a Claim for Defamation

Defendant moved to dismiss the claim, asserting that plaintiff is a limited-purpose public figure and must plead actual malice (rather than negligence), which he failed to do in his complaint. The court found that plaintiff effectively conceded that he met two of four elements of the limited-purpose public figure test—namely, that he successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation, and that he maintained regular and continuing access to the media. Therefore, defendant needed to define the controversy related to the subject of litigation and prove that plaintiff both voluntarily injected himself into that controversy and assumed a position of prominence within it.  

Drawing on precedent, the court articulated the rule as follows: “A controversy is a specific question or real issue being discussed at the time of the defamatory statement. Plaintiff urged the court to define the controversy in this case as narrowly as possible, limiting it to ‘the intractable problem of widespread sexual harassment and assault against women as well as the difficulties women face reporting and preventing such harassment and assault.’” Defendant, on the other hand, defined the controversy in this case more broadly as the “#MeToo story… [encompassing] sex, consent, morality, and power.” 

The court rejected both parties’ definitions as too extreme, but agreed that the controversy was in fact tethered to the #MeToo movement as it existed in October 2017. According to the court, the discussion surrounding the #MeToo movement was about more than just broad strokes of “sex, consent, morality, and power.” Rather, it took on a narrower focus relating to “issues of sexual assault, sexual harassment, and consent in the workplace.” 

The court next examined whether plaintiff “voluntarily injected himself into that controversy and assumed a position of prominence within it.” Noting that “[t]he degree of voluntary involvement in the public controversy is important,” the court found plaintiff’s involvement to be de minimis. The court found that plaintiff had only made “a few tangential references to sexual harassment or lewd jokes in the workplace in [his] writings and interviews”; therefore, his actions did not transform him from a private individual into a limited-purpose public figure.

Dismissal Based on Immunity Under Section 230 of the Communications Decency Act

Alternatively, defendant sought to dismiss the suit by arguing that plaintiff’s action was barred by Section 230 of the federal Communications Decency Act (CDA), which provides 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.” Defendant argued that since the names on the “Shitty Media Men” list were added by anonymous third parties who had access to the Google spreadsheet, she should be granted CDA immunity. The court noted the general rule that “[Sec.] 230 immunity is broad and close cases must be resolved in favor of immunity.”

Because CDA immunity is an affirmative defense, the defendant bears the burden of establishing the defense and the plaintiff’s failure to plead facts related to that defense cannot serve as a basis upon which to move for dismissal. The court did not definitively rule for either party on the issue, but ordered the parties to “proceed without delay to narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense” before resuming litigation on the defamation claim. 

Summary prepared by Melanie Howard and Marwa Abdelaziz