Journalist Wants To End 'Shitty Media Men' Libel Case

By: 
Law360
Published on:
June 28th, 2019
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Journalist Moira Donegan is asking a federal judge to end a libel lawsuit filed over her creation of a list of “Shitty Media Men” who have been accused of sexual misconduct, saying she’s shielded by the First Amendment.

Donegan told a Brooklyn federal judge Thursday that Stephen Elliott, a writer who sued her for defamation last year after his name appeared on the list next to "rape accusations," cannot possibly prove she acted toward him with so-called actual malice.

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

“Simply put, Ms. Donegan presumptively believes women who say they were raped,” her attorneys wrote. “Mr. Elliott offers no allegations supporting a reasonable inference that Ms. Donegan knew the accusations against him were false or strongly doubted them.”

“Ms. Donegan thus acted well within the bounds of constitutionally protected speech when she circulated and publicized the spreadsheet,” they wrote. “Mr. Elliott is not entitled to hold Ms. Donegan liable on the obsolete premise that she must have automatically disbelieved women who chose to speak anonymously about sexual abuse by powerful men in their own industry.”

Courts require so-called public figures to prove actual malice — intentional lies or disregard of the truth — if they want to sue for defamation. It’s a deliberately difficult standard, designed to prevent free speech from being stifled by litigation.

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

Elliott sued in October, 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. That, too, will face First Amendment scrutiny.

On Friday, an attorney for Elliott told Law360 that he and his client "look forward to commencing discovery."

"We believe that our filings tell a very compelling story, and we view the motion as a delay tactic," Andrew T. Miltenberg said.

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.

The case is Elliott v. Donegan et al., case number 1:18-cv-05680, in the U.S. District Court for the Eastern District of New York.

Read this at Law360.