BROOKLYN, N.Y. (CN) — If one of the men written about by Carrie Bradshaw accused the fictional “Sex and the City” columnist of rape, would she be considered a public figure if she fired back with a defamation suit?
That was the hypothetical argued in Brooklyn Friday as a federal judge considered the fallout from a private whisper network created in the #MeToo era for women to anonymously share their stories of workplace sexual harassment.
Stephen Elliott, a published author featured on a Shitty Media Men list in 2017, says the unverified claims of rape and coercion ruined his life. He’s seeking $1.5 million in damages from the list’s creator, a fellow writer named Moira Donegan.
If considered a limited-purpose public figure, however, Elliott will bear a higher burden for proving defamation. Key to the determination is whether Elliott has inserted himself — through his writings, interviews or other public declarations — into the public controversy at issue in the case.
U.S. District Judge LaShann DeArcy Hall indicated she’s poised to define that controversy as the #MeToo movement, the beginning of which directly preceded Donegan’s creation of the Shitty Media Men list in 2017.
In the hypothetical scenario, Donegan’s attorney Roberta Kaplan told the court Friday that “Sex and the City’s” Bradshaw should be a public figure, and so should Elliott, who has written extensively about his sex life and sexual preferences, including BDSM. Indeed as part of his response to the spreadsheet allegations, Elliott has argued that, as a submissive, he could not assault anyone.
“I think it’s indisputable that the topic of consent … and the topic of rape is something that Mr. Elliott wrote about,” said Kaplan, a lawyer with the firm Kaplan Hecker & Fink.
DeArcy Hall pressed Kaplan to clarify that she was not fusing nontraditional sex practices with rape and sexual assault.
“My concern is conflating a consensual S&M relationship in any way with circumstances where a woman ... is forced into a sexual relationship she does not want,” the judge said.
Kaplan explained that was not her point, saying Elliott has written about what consent means in the kinds of relationships he’s been in personally.
“He has written multiple times in his writings, in the context of S&M, what it means to give consent and not to give consent,” she said.
“Whether consent is fully given ... is the central discussion that we are having in #MeToo,” she added later. “In S&M, by definition, you have to have consent.”
Elliott’s lawyer, Nicholas Lewis of Nesenoff & Miltenberg, said his client, like Carrie Bradshaw, writes about consensual sexual encounters and therefore does not dive into issues of consent.
“Mr. Elliott certainly hasn’t injected himself into any of the controversy surrounding the #MeToo movement, however it’s defined,” he said.
“I don’t believe that just because a writer touched on consent once or twice, that would qualify.”
If DeArcy Hall defines the scope of the controversy as #MeToo, Lewis warned, false accusations could run rampant.
“Then anyone who wrote about sex in any fashion could be accused of being a rapist and be considered a public figure,” he said. “It would be open season on any writer who wrote about sex in any fashion.”
Kaplan’s homework now is to make a list of instances in Elliott’s writings in which he explicitly discusses issues of sexual assault and consent. DeArcy Hall will consider them, as well as any comment from Lewis and Elliott about whether the work was mischaracterized.
“Interesting stuff, folks,” the judge said as the parties wrapped up Friday. She credited her clerk for the idea of the Carrie Bradshaw exercise.
“It’s very clear that Judge DeArcy Hall has spent a lot of time thinking about these issues,” Kaplan said in a phone interview afterward. “The oral argument was tough, intensive, and comprehensive, as it should be.”
She said she was confident that DeArcy Hall would deem Elliott a limited-purpose public figure after reading her team’s submission of his work.
Elliott, who lives in New Orleans, was in court Friday. In the hallway afterward, he said Kaplan had misinterpreted and mischaracterized some of his works. Just because something pushes boundaries doesn’t mean it’s a comment on the #MeToo movement, he added.
He also said that the mere mention of consent in something he wrote “doesn’t mean it’s a book about consent.”
One of Elliott’s seven books, “The Adderall Diaries,” was adapted into 2015 film of the same name. Elliott said he’s been doing some construction work and doesn’t think he’ll write professionally again.
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