A federal judge in Brooklyn on Friday ruled that in the ongoing lawsuit against Moira Donegan, the creator of the Shitty Media Men list, plaintiff Stephen Elliott cannot sue her for intentional or negligent infliction of emotional distress, though he can still make a claim for defamation. According to a transcript, Elliott’s lawyers also tried to argue during the hearing that Donegan’s tweets are relevant to the case, particularly one where they allege that she tweeted, “I hate men.” The judge, Hon. Lashann DeArcy Hall, wasn’t especially receptive to that argument.
Elliott has sued over his inclusion on the Shitty Media Men lawsuit, saying that an entry on the list accusing him of rape is defamatory. (He was also accused of far lesser offenses, like “sneaking into” a women’s-only Facebook group.) He and his attorneys are seeking a large amount of information about anyone who might have contributed to this list, and have asked Google to retain information the company might have about anyone who viewed, edited, or even sent emails about the list. Elliott has also argued that the rape allegation is provably false, because he has an open preference for being the submissive in BDSM situations and has said he rarely engages in penetrative sex. (Like many women in New York media, I viewed the list the night it was created, and recognized the names of friends and former coworkers on it. I didn’t add to the list or forward it.)
The lawsuit is widely viewed as an important test case in the MeToo era, and, as with so many things in our current cultural moment, the court proceedings are becoming rather focused on tweets.
In Elliott’s original complaint filed in October 2018, his attorneys wrote that Donegan “made public statements on social media stating ‘The problem is men,’ ‘I really hate men,’ ‘I like the witch hunt,’ and re-publishing statements assuming the guilt of all men accused on The List.” (None of those verbatim tweets are currently findable on Donegan’s Twitter account, though it is possible they could have been deleted.)
In court on Friday, one of Donegan’s attorneys, Roberta Kaplan, a co-founder of the Time’s Up legal defense fund, argued that Donegan has clearly explained herself, in an essay for The Cut, why she created the list. That essay, Kaplan argued, clearly shows that Donegan didn’t set out to recklessly publish defamatory statements that she knew were false.
“I think the Court is perfectly entitled to read Ms. Donegan’s own statements in the article that’s cited, that she wrote, by the Plaintiff in the complaint in which she explains why she did what she did, she explains the context, she explains how the list was created,” Kaplan told Judge DeArcy Hall. “And everything she says in that article not only is inconsistent with any claim of malice but actually rebuts any claim of malice.”
One of Elliott’s lawyers, Nicholas Lewis, argued that Donegan’s subsequent tweets undermined the Cut piece.
“Your Honor, respectfully, with regard to the Defendant’s article,” he told the judge, “the statements regarding ‘I hate men’ and ‘I’m enjoying the witch-hunt’ are relevant for her, I guess — belie the claims in the article that this was done—”
Judge DeArcy Hall cut in. “Let’s assume she hates men,” she said. “Just for the record, let’s assume she hates them. I don’t see how you can go from her generalized hatred of men to a reasonable inference of malice with regard to your client, which is what you’d have to establish.”
Lewis responded that the use of the word “witch hunt” was itself damning, which DeArcy Hall disagreed with. Here’s their full and fairly fascinating exchange from the court transcript:
MR. LEWIS: Your Honor, I believe the more important part of the quote is “I’m enjoying the witch-hunt” as indicative that there’s witch-hunt claims that are — claims that are indicative that she knows the claims, I guess including claims against my client, are false.
THE COURT: “Enjoying the witch-hunt” means that she knows that they are false? I don’t see the logical connection there.
MR. LEWIS: I believe the term “witch-hunt” indicates —
THE COURT: What if there’s an actual witch? There are lots of people who go around saying that folks are engaged in witch-hunts, and we can all have our own beliefs as to whether or not witches exist.
MR. LEWIS: Of course.
With the emotional distress claims effectively tossed out, Elliott can still sue Donegan for defamation, though Judge DeArcy Hall said that Elliott’s lawyers will likely have to more clearly articulate how they believe Donegan reached the “actual malice” standard necessary for defaming a public figure. According to court records, his attorneys have until March 8 to tell the court whether they’re going to amend their complaint. Donegan’s attorneys are still seeking to have the suit dismissed entirely.
In a statement emailed to reporters, Roberta Kaplan wrote that she’s confident “this case will soon be over once and for all.”
“After a careful and comprehensive review of the complaint, the parties’ submissions, and the applicable case law, the Court ruled yesterday that Stephen Elliot could not pursue any claim for negligent or intentional infliction of emotional distress against our client Moira Donegan in connection with the “Shitty Media Men” list. Those claims are now out of the case for good. The Court held that Mr. Elliot had failed to plead the remaining claims of defamation as well, although he has until March 8 to decide whether to try replead that claim. We are pleased with the Court’s rulings, and are confident that this case will soon be over once and for all since there is no version of the facts that could possibly state a viable claim of defamation against Ms. Donegan here.”
We’ve also reached out to Elliott’s lawyers for comment and will update should we hear back.
Update, 11:30 a.m.:
In a followup statement to Jezebel, Roberta Kaplan addressed the question of the “man-hating” tweets specifically:
“The first thing to note is that these are allegations only and that at the motion to dismiss stage, the Court is required to accept them as true. Our client Ms. Donegan is far too sophisticated a thinker to go around saying that she or anyone else actually “hates men.” But what the Judge said on Friday is that even if it were true that Ms. Donegan hated men in general, that still would not be enough since Mr. Elliott has not (and cannot allege) that she hated Mr. Elliott in particular and that she therefore had a reason to lie about him. Indeed, the Complaint does not allege that Ms. Donegan knew Mr. Elliot, had ever met him, or even had read any of his writings.”
Update, 3:30 PM:
Andrew Miltenberg, the other attorney on Elliott’s case, tells Jezebel in a statement that they will amend their complaint to exclude the emotional distress claim. He adds that they’re encouraged by another response Judge DeArcy Hall gave in the same hearing, in which she indicated that Donegan will not be able to claim she’s protected under the Communcations Decency Act, a landmark law protecting online speech through one of its amendments, Secion 230. (DeArcy Hall indicated that Donegan would only be able to have the suit dismissed by citing the CDA if she was merely the creator of the spreadsheet; Elliott’s complaint alleges that she also contributed to it.)
“[I]t seems to me for purposes of a motion to dismiss and accepting the allegations as true, as I must, in light of what is alleged in Paragraph 19 and 20 of the complaint, that at this juncture the CDA doesn’t act as a shield,” Hall told the parties in Friday’s hearing.
Here’s Miltenberg’s full statement:
“We agree with Judge Hall’s determination that Defendants cannot rely upon the Communications Decency Act and are encouraged the Judge appears fair minded and open to the idea the issues in the complaint are curable. As a result, we will be amending our Complaint by not including causes of action for emotional distress.”
This story has been updated to reflect that Judge DeArcy Hall uses that as her surname, not “Hall,” as the story originally read.