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Attack of the Right-Wing Snowflakes
October 24th, 2018
One minor sordid subplot of the Trump era has been the ugly custody battle between Jason Miller, senior communications adviser on Donald Trump’s 2016 campaign, and A.J. Delgado, a former Trump campaign surrogate.
Miller and Delgado started an affair during the presidential race; Delgado became pregnant while Miller’s wife was pregnant as well. Now Miller and Delgado are involved in a vicious custody battle over their son, which Delgado chronicles on her Twitter feed.
For all its squalor, this is a story of public interest. It’s reportedly the reason Miller didn’t become White House communications director, instead signing on to defend Trump as a CNN contributor.
So it was news when Delgado claimed, in a court filing, that Miller had made a previous girlfriend pregnant and then put abortion-inducing medication in her smoothie. In September the website Splinter, part of Gizmodo Media, reported on the filing, noting that Miller denied the allegations.
In response, Miller made an aggressive legal move that’s becoming more common on the right, suing the report’s author, Katherine Krueger, and Gizmodo Media for $100 million. When Krueger’s boyfriend, a co-host of the cult left-wing podcast Chapo Trap House, called Miller a “rat-faced baby killer” in a tweet, Miller added him to the suit. Representing Miller are two veterans of the team that sued Gawker Media into oblivion for publishing a sex tape of the wrestler Hulk Hogan, a case partly bankrolled by Trump-supporting billionaire Peter Thiel. (Gizmodo is a spinoff of Gawker.)
There is an air of dark absurdity about this saga. Miller is unlikely to prevail, because there are broad protections for journalists to report on claims made in legal filings, whether or not they are true. But it’s still worth taking seriously, because it’s part of a mounting conservative assault on free speech.
We’ve heard a lot over the last few years about left-wing hostility to free expression. On occasion I’ve written about this subject myself. But as much as I dislike campus histrionics and self-righteous Twitter swarms, a far greater threat to free speech comes from people on the right — or, at any rate, people opposed to the left — using the courts against their critics.
The Canadian psychologist Jordan Peterson, sometimes seen as a free speech warrior, has twice sued Ontario’s Wilfrid Laurier University for defamation, part of a controversy that arose after a teaching assistant there was chastised for showing a video of Peterson in class. He has also threatened to sue Kate Manne, a writer and assistant professor at Cornell, for calling his work misogynist. The failed Alabama Senate candidate Roy Moore sued four women who accused him of sexual abuse.
And, of course, there’s Stephen Elliott, the writer suing Moira Donegan, creator of a crowdsourced spreadsheet of allegedly abusive men in the media industry, as well as the people who contributed to it. Through the suit, he’s trying to force the disclosure of these people’s names, something that would have profound implications for every part of the internet where anonymity is the norm.
There are many ethical ambiguities in the media men list, a clearinghouse for anonymous allegations where someone wrote that “rape accusations” had been made against Elliott. While Elliott told my colleague Bari Weissthat he has, in the past, been “unaware of boundaries and transgressed them without realizing,” he insists he is innocent of rape, and has no way to clear himself of an anonymous charge that has ruined his life. If this is true, he deserves sympathy.
Donegan, however, didn’t write the allegations against Elliott. And his suit attempts to use her fiery feminism against her, saying she has a “well-documented history of publicly publishing statements professing a hatred of men.” Seeing this, any woman who contributed to the list — or merely forwarded a link to it — might feel the need to temper her anger at the patriarchy online.
During the civil rights era, Southern segregationists waged what Elena Kagan once called, in her pre-Supreme Court days, a “campaign which intended to curtail media coverage of the civil rights struggle” through libel lawsuits against journalists. That became more difficult with the 1964 Supreme Court decision New York Times Company v. Sullivan, a case involving a full-page ad in The Times, paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South, that contained factual errors. The court’s decision required people claiming libel to prove “actual malice,” not simply untruths.
Roberta Kaplan, a renowned feminist lawyer who is now representing Donegan, told me that after Sullivan, it became conventional wisdom that defamation lawsuits aren’t “rational or appropriate ways to settle disputes about truth or falsity, except in really exceptional circumstances.”
Now, however, things are changing. “In the same way that Time’s Up and #MeToo have kind of overturned decades, centuries of accepted wisdom about what is O.K. or not with respect to the treatment of women, we’ve seen a parallel overturning of accepted practices and norms about the advisability and, frankly, rationality of using defamation in this manner,” she said.
In other words, some men are really angry, and the political faction that claims to hate political correctness is appealing to the state to shut people up.
Read this at the New York Times.