Last week, writer, filmmaker and accused shitty media man Stephen Elliott filed suit against Moira Donegan, the self-identified creator of the Shitty Media Men list. In that time, a legal defense fund for Donegan has raised over $100,000 and she’s retained the counsel of Robbie Kaplan, co-founder of the Time’s Up Legal Defense Fund. The case has also caught the attention of the Electronic Frontier Foundation, an influential organization advocating for digital privacy and free speech. EFF is vowing to monitor the case and, if necessary, advocate for the First Amendment rights of anyone who anonymously contributed to the list.
EFF attorney Aaron Mackey told Jezebel that the way the complaint is written indicates that Elliott and his attorney Andrew Miltenberg are looking to identify not just whoever put his name on the list, but whoever contributed to it, shared it, or even viewed it. (Miltenberg is best known for representing college students accused of sexual assault.) In the interest of full disclosure, that could mean me: like many women in media, I viewed the list soon after it was created, and know countless other people who viewed and shared it. I didn’t myself add any names to the list; a few people named on it were friends and former coworkers. Depending on how this is handled in the courts, I and countless other women in media could be one of the Jane Does identified as co-defendants with Donegan in Elliott’s suit.
“He could have submitted a narrow set of subpoenas in which he asked Google for information on anyone who provided information about himself,” Mackey told us. “But that’s not what the complaint says: it says anyone who contributed to the list or distributed it. So it seems much more aimed at trying to identify anyone and everyone who was involved, even peripherally. The focus seems less about vindicating legal claims but more about intimidating or silencing a group of anonymous speakers.”
The complaint does, in fact, say that the discovery process will seek to reveal anyone who entered information in the list, circulated it or “publicized” it:
Plaintiff will know, through initial discovery, the names, email addresses, pseudonyms and/or “Internet handles” used by Jane Doe Defendants to create the List, enter information into the List, circulate the List, and otherwise publish information in the List or publicize the List. Through discovery, Plaintiff can obtain the email address information, Google account, Internet Protocol (“IP”) address assigned to the accounts used by the Jane Doe Defendants by the account holders’ Internet Service Provider (“ISP”), email accounts and/or Google accounts, on the date and time at which the Posts were published and/or information was entered into the List. Plaintiff intends to subpoena the shared Google spreadsheet metadata for the List, email accounts, Google accounts and ISPs in order to learn the identity of the account holders for the email addresses and IP addresses.
Mackey wrote a blog post arguing that the case is a textbook case of an individual trying to use the court system to chill free speech. But he and EFF also believe Donegan is protected under Section 230 of the Communications Decency Act, which holds that websites or providers who host or republish speech can’t be held liable for things other people say. (Among other things, it’s why websites are legally able to have comments sections.)
“It’s not entirely different than say, the review website Glassdoor,” Mackey says. “In that instance, people are anonymous and talking about their experiences with their employers, with anonymity there so you can speak freely and candidly about your experiences and not worry about your boss finding out.”
Even in the event that Donegan herself wrote the entry about Elliott, Mackey tells Jezebel, he’s a public figure, meaning the defamation standards are more stringent. “I think you’d have to prove what was written was not only false, but that whoever published it did so with reckless disregard for the truth, that they were out to get him.”
In his post, Mackey wrote that the allegations in Elliott’s complaint are “thin,” adding that EFF’s position is that the suit should be dismissed:
Given the potential dangers to anonymous contributors to this list and the thin allegations in the complaint, we hope the court hearing the lawsuit quickly dismisses the case and protects the First Amendment rights of the speakers who provided information to it. We also applaud Google, which has said that it will fight any subpoenas seeking information on its users who contributed to the list.
Mackey has been employed at EFF for three years, but couldn’t immediately recall another instance where the organization weighed in on a digital privacy issue so directly related to sexual violence. But he said they’d be closely monitoring this case.
“In reality, this was a tool that was important,” he said. “It was aimed at a particularly pervasive problem: men harassing or otherwise committing acts of violence against women.”
We’ve reached out to Elliott’s attorney Andrew Miltenberg for his take on the privacy issues at work in the case and will update when we hear back.
Update, 4:00 p.m.:
Miltenberg has responded to our inquiries with the following statement:
I believe in the First Amendment. I equally believe in the Constitutional right for the accused to face their accusers. Otherwise, anonymous accusations can be made with impunity destroying reputations and careers. The defense of anonymous accusations should not be confused with stifling free speech. In fact, transparency and equity are the cornerstones of free speech. Without being able to confront your accusers and their accusations, which comes from cross-examination, secret tribunals can willfully engage in character assassination, destroying what is fundamental in a free society and leaving us standing on the precipice of totalitarianism.