Jurisprudence

Does Stephen Elliott’s Lawsuit Against Moira Donegan Have a Chance to Succeed?

We asked legal experts.

Stephen Elliott’s face on a spreadsheet.
Photo illustration by Slate. Photo by © 2013 Larry D. Moore/Wikipedia.

Exactly one year after Moira Donegan started the Shitty Media Men list, one of the men named in that Google spreadsheet has filed a defamation lawsuit against her. Stephen Elliott, the founder and former editor in chief of the literary website the Rumpus, is asking for $1.5 million in damages for what the suit says were “malicious” actions “taken solely to damage [his] reputation and career.”

In his filing, Elliott says the spreadsheet, in which an anonymous individual or individuals accused him of rape, sexual harassment, coercion, and unsolicited invitations to his apartment, caused him to become depressed, get disinvited from multiple book readings, be defriended or blocked on social media by several people, and lose the opportunity to sell his book for film or television adaptation. He also claims that, due to the spreadsheet, people have stopped returning his calls and his recent book sales were “below projections and significantly less than previous works.”

Donegan has written that she intended the spreadsheet to be a semiprivate document women could use to warn one another about predatory men, but it soon leaked to news outlets. After Donegan took it down, others screenshotted it and its contents were posted on Reddit and elsewhere. Elliott is seeking to sue not only Donegan but anyone who submitted his name to the list, stating that he hopes to discern their identities by subpoenaing Google. The tech firm told the Daily Beast it will fight Elliott’s efforts to reveal these names, and if the company has already trashed the data from the deleted spreadsheet, as is its general policy, Elliott may be out of luck. While no one has publicly admitted to writing those allegations on the spreadsheet, some women put their names to allegations against Elliott after he wrote an essay in Quillette about the harm he’s allegedly suffered since the list became public.

With respect to Elliott’s lawsuit, Donegan may be protected by Section 230 of the Communications Decency Act of 1996, which insulates people and companies from liability for hosting third-party content they do not write themselves. Anderson Duff, an attorney with experience in defamation and libel law, told me that if everyone who invited third-party contributors to publish content online was responsible for that content, “Nobody would host any third-party content. It would break the internet.” It’s likely Elliott’s attorneys will argue that Donegan didn’t play an entirely passive role here, as she may have been the one to highlight Elliott’s name in red on the spreadsheet, marking him as the target of multiple allegations of physical sexual assault. But Duff said Donegan’s clear note at the top of the spreadsheet marking the entries as unverified—“This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”—will work in her favor.

On the other hand, that statement might make the Communications Decency Act moot in this case. While, say, a large-scale social media platform can plausibly argue that it has no way of knowing what its users will publish before they publish it, Donegan knew exactly what content she was soliciting: unverified allegations. “If the defendant here was my client, if I had spoken to her prior to this all happening, I would have advised her to proceed differently,” said Nicole Ligon, a supervising attorney at the Duke University School of Law’s First Amendment Clinic, adding, “It’s tricky because I so feel for the defendant here, and I know the intentions were great … and survivors should have a place to share their stories, and not everything is well documented.”

As part of the Legal Network for Gender Equity, a nationwide group of attorneys associated with the Time’s Up Legal Defense Fund, Ligon advises women who want to go public with sexual assault allegations on how best to couch their stories to avoid potential defamation lawsuits, or to put themselves in the best possible position to defend against such lawsuits if they do arise. The pieces of evidence she asks a client to compile before publishing a personal account or speaking to the press—accounts from people the client told about the abuse or harassment at the time, emails or letters, signed statements from other people who’ve suffered similar abuse from the same perpetrator—are the same kinds of evidence the person or people who submitted Elliott’s name to the spreadsheet will want to bring forward if their identities are revealed.

Because truth is an ironclad defense against a defamation claim, the discovery process in lawsuits like Elliott’s can be extremely damaging to the plaintiff. Duff said he frequently tries to convince potential plaintiffs that it’s unwise to file defamation suits, because every bad thing they’ve ever done will be brought forth by the defendants to try to establish a pattern of bad behavior. “For people who feel they need to file a suit just to prove that they have nothing to hide, even if they don’t have anything to hide, it’s usually not that great of an idea, because it draws more attention,” Duff said.

The other major question at issue here is whether Elliott is a public figure. If he is, he will have to prove that either Donegan or the people who submitted his name did so with “actual malice”—that they knew the allegations against him were false or that they acted in “reckless disregard” for the truth, which is an extremely high legal threshold to clear. If Elliott is not a public figure, the bar for defamation is lower: He’ll have to prove only that Donegan and the person or people who put his name on the list were negligent in their failure to verify the claims. Elliott is already trying to prove malice in his suit by citing a few of Donegan’s tweets, evidence of “a well-documented history of publicly publishing statements professing a hatred of men,” according to the filing.

While Elliott claims in his lawsuit that he is not a “celebrity,” a judge might not agree. “I know about the Rumpus, and I’m an attorney and completely uncultured, so there’s a reasonable argument that he is [a public figure], especially if he often wrote under his own name and had a byline,” Duff said. The Supreme Court has decided very few cases that address the line between private and public figures, and there is no strict threshold that marks a plaintiff’s rise from the former to the latter category. But the court held in Gertz v. Robert Welch Inc. that private citizens deserve more protection from defamatory statements in part because they have fewer outlets to rebut those statements. As a published author who has already rebutted the allegations in an online magazine with nearly 1 million unique monthly visitors, Elliott does not lack for platforms where he can defend himself. But he and his lawyers seem to have anticipated that argument: The lawsuit claims Elliott submitted an essay defending himself to both New York magazine and the Guardian, and that both outlets first accepted then rejected that essay.

Since Elliott is neither a household name nor a government official, Donegan may have to prove he is what’s known as a “limited-purpose public figure”—that is, someone who is embroiled in a public controversy or newsworthy situation. In 2005, a Florida judge ruled that a plaintiff alleging defamation, Eliza Thomas, was a public figure because there had been some online debate about her efforts to remove her brain-damaged husband’s feeding tube. While that ruling was widely criticized, since Thomas hadn’t willingly inserted herself into that debate, Elliott regularly seeks attention and publicity with his writing, which may be taken as a sign that he’s a willing participant in public discourse.

Ligon believes Elliott may have unwittingly proved he’s a public figure in his own filing. He claims Donegan and the people who put his name on the list must be “aware” of the nonfiction writing he’s done about his “sexual preferences” as a BDSM submissive, and that they must have known the claims against him were false because, he implies, submissives cannot commit sexual assault. “If he is going to state that his sexual preferences should be known—perhaps if you’re saying that should already be public knowledge, then perhaps you’re saying that you’re a public figure,” Ligon said.

A GoFundMe established to raise money for Donegan’s legal expenses has garnered more than $77,000 as of Friday evening, boosted by a Twitter thread from Roxane Gay that called the lawsuit “terrible and disingenuous and dangerous.” “I donated because this lawsuit is frivolous and misdirected,” another contributor to the GoFundMe wrote on the page. “We all benefit when women find ways to defend ourselves and each other.” Another offered a simpler sentiment: “I donated because bullies make my blood boil.”