BROOKLYN, N.Y. (CN) – In another test of the #MeToo movement’s strength in court, a federal judge in Brooklyn heard arguments Friday over defamation claims brought by a male author against a woman who created a leaked spreadsheet accusing him of sexual misconduct.
In October 2017, Stephen Elliott’s name appeared on the “Shitty Media Men” list, a Google spreadsheet started by Moira Donegan and circulated privately as a crowdsourced document naming men in the media industry who have been accused of sexual misconduct.
Unknown contributors wrote next to Elliott’s name on the spreadsheet: “Rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” In the “notes” column of the list, Elliott was classified as a man against whom “multiple women allege misconduct.”
The list went public on Reddit after BuzzFeed published an article mentioning its existence.
Elliott says the list has ruined his life, causing extreme depression and even contemplation of suicide, according to a lawsuit he filed against Donegan last October seeking $1.5 million in damages for claims of defamation and infliction of emotional distress.
“Being accused of sexual misconduct is extremely alienating,” Elliott wrote in an essay last year. “#MeToo was an expression of solidarity but there is no solidarity for the accused.”
As the author of seven books and director of two films, Elliott is a public figure, which adds a higher burden to his claims.
For her part, Donegan has maintained the list was meant to be private, a whisper network to help protect women in an industry largely dominated by men.
Both Elliott, 47, and Donegan, who has not disclosed her age but appears to be in her 20s, are professional writers.
Donegan was present in the Brooklyn federal courtroom Friday while Elliott, who is said to live in Los Angeles, was not.
The court proceedings come as the #MeToo movement, which followed sexual abuse allegations against movie mogul Harvey Weinstein in 2017, is midway through its second year. It’s a time when many men accused of sexual misconduct are beginning to assert their comebacks, and if Elliott’s lawsuit is successful, it could help open up a new arena for accused men.
Thus far, however, U.S. District Judge LaShann DeArcy Hall has not seemed swayed by Elliott’s claims.
Nick Lewis of Nesenoff & Miltenberg, representing Elliott on Friday, effectively conceded to dropping two of the counts against Donegan, for both intentional and negligent infliction of emotional distress. That leaves a sole defamation claim, about which Hall expressed some doubt because defamation of a public figure like Elliott requires proving actual malice.
“I think you have a malice problem,” the judge told Lewis.
Elliott’s case has hinged on social media statements he says Donegan has made, including “I really hate men” and “I like the witch hunt.”
“Let’s assume she hates men, for the sake of argument,” Hall said to Lewis. “I don’t see how you can go from her general hatred of men to a reasonable [accusation] of malice with regard to your client.”
Later, the judge drew on another example that Donegan’s online statements did not necessarily prove malice.
“‘Enjoying the witch hunt’ means she knows that [the allegations] are false [and published them anyway]?” Hall asked. “What if there’s an actual witch? … We can all have our own beliefs as to whether witches exist.”
Creating an open, shareable document as Donegan did is “simply opening up a platform,” Hall said.
Free speech advocates have been watching the case closely because Elliott also listed 30 Jane Does, unknown contributors to the spreadsheet, as defendants. It’s not clear who typed the accusations against him or whether Donegan had anything to do with Elliott’s listing specifically beyond creating and sharing the initial list.
Elliott has called for a discovery process in which he would subpoena Google for the Doe users’ information.
Judge Hall said Friday the parties “should expect that plaintiffs are allowed to have some limited discovery.”
In October, Google said it would refuse to comply with a subpoena for the Does’ information, and the company’s position had not changed as of Thursday.
“We only respond to valid requests for user data, and we will always work to protect our users’ privacy,” a Google spokesperson said via email.
Donegan’s attorney Roberta Kaplan, who co-founded the Time’s Up Legal Defense Fund, said Friday her client should be immune from the lawsuit on the grounds of the Communications Decency Act, which protects freedom of expression on the internet.
Attorney Andrew Miltenberg, who was not present Friday, also represents Elliott. Miltenberg has become a go-to lawyer for men accused of sexual assault, including NFL player Keith Mumphery and Columbia University student Paul Nungesser, whose accuser famously carried a mattress around the university to symbolize the burden rape survivors carry.
It’s not clear who is paying his legal fees, and Miltenberg did not immediately return a request for comment Friday.
An online fundraiser for Donegan’s legal fees, started by writer Lauren Hough, has raised over $116,000 of a $500,000 goal.
Elliott has until March 8 to inform the court whether he intends to revise his complaint. If he does not, Donegan can file a motion to dismiss after two weeks. If he does, the case will proceed into the spring.