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Does the Man Suing over #MeToo List About Men in Media Have a Shot?

In the fall of 2017, writer Moira Donegan created the “Shitty Media Men” list—an “anonymous, crowd-sourced” spreadsheet that collected rumors and allegations of sexual misconduct by men in media and publishing. metooThe spreadsheet was up on the internet for only 12 hours before Donegan pulled it, but it went viral and became much more public than Donegan intended. Donegan said she had not foreseen this outcome; her goal had been to “create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” That fear of reprisal has become reality: last week, one of the men named on the list, writer Stephen Elliott, sued Donegan and 30 other anonymous women for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

What do these legal claims mean, and does Elliott have a case?

Who is Elliott Suing?

The first hurdle for Elliott is figuring out who (if anyone) he can go after for the comments about him on the list. As of right now, the only defendant whose identity is known is Donegan, but she may not have been the person who added Elliott to the list or wrote about him. The complaint states that Elliott will be attempting to subpoena information from Google to get the names of other people who contributed to the list; Google says it will oppose the subpoena.

Assuming Donegan is the only defendant whose identity is known, can she be held responsible for all of the content on the list, even if she did not contribute it? This question will turn on the application of the Communications Decency Act of 1996, which states in relevant part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Two legal experts who spoke to Slate disagreed about whether that law would protect Donegan. One argued that the note at the top of the list – “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt” – will help Donegan’s argument that the list was simply a forum in which other people could speak. Another, however, sees that acknowledgment that the contents of the list were unverified as damaging to Donegan, because it shows that she knew the type of content she was publishing through the list. Whether Donegan can be held responsible for the list may come down to factual details that will come out as the case progresses—was her role in developing and editing the list entirely passive or did she continue to contribute to it and edit it once it was up? And of course, if she herself contributed information about Elliott, she would be responsible for her own statements.

Defamation

Defamation is a tort claim, so although the suit has been brought in federal court, this cause of action arises under New York state law. Defamation is, in its simplest terms, making false statements about someone that harm his or her reputation. To win on this claim, Elliott will have to show (1) that the defendants he sued made the statements about him, (2) the statements were untrue, and (3) that they harmed his reputation. Defamation generally applies only to statements of fact; opinions cannot usually be the basis of a defamation claim. In his complaint (and in an article he wrote about the list), Elliott has set out the ways in which being named on the list harmed his reputation, his career prospects, and his income.

What are the statements about Elliott that could be defamatory? There’s his inclusion on the list, which indicates he is a “shitty media man,” though that seems to be a statement of opinion, not fact. According to the complaint, the “allegations” column next to his name says are “rape allegations, sexual harassment, coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” There’s a note associated with his entry that states “multiple women allege misconduct.” And then there is the highlighting of his entry in red, which according to the spreadsheet identified “[m]en accused of physical sexual violence by multiple women.”

If multiple women indeed have accused him of misconduct (whether that accusation is true or not) the note associated with his entry and the highlighting of his entry in red would seem to be truthful, and therefore not defamatory. If, on the other hand, women have not even made those accusations, those statements could well be defamatory. The actual allegations listed by his name are the potentially defamatory statements that Elliott likely cares most about; Elliott will have to prove by a preponderance of the evidence that they are not true.

One issue in defamation cases, which plaintiffs often don’t fully appreciate, is that truth is an absolute defense to a claim of defamation. In practice that means that when this case gets to discovery, where each side requests information and documents from the other, Donegan will be able to conduct extensive, invasive discovery about Elliott’s behavior—information that can become public as the lawsuit progresses. Elliott does not appear concerned about this aspect of being a defamation plaintiff; in his complaint he proactively discusses his sexual preferences (as “a submissive male in a BDSM context”, an identity he explained more fully in an article describing the damage the list had done to him) and claims that that preference means he could not have engaged in the alleged behaviors. In his article he adamantly denies ever having sex with anyone who works in media, and says he is not interested in any of the sex acts that could constitute rape. If this case proceeds, Donegan will be allowed to obtain evidence about Elliott’s interactions with women (for example, his emails, text messages, and social media messages) to see if she can demonstrate that he did, in fact, rape, harass, or coerce any women.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (“IIED”) is also a tort, so again New York state law governs. To make out a claim of IIED, Elliott has to show that the defendants (1) engaged in extreme or outrageous behavior, and through that behavior (2) intentionally or recklessly (3) caused severe emotional distress (or mental trauma, or bodily harm).  “Extreme or outrageous behavior” is a very high standard to meet. The New York Court of Appeals (the state’s highest court) has said such behavior must go beyond “all possible bounds of decency.” In a 2016 case the court noted that it had never concluded that a litigant had met that standard. The appellate courts of New York have found the following situations involving publication of private information not sufficiently outrageous to make out a claim of intentional infliction of emotional distress: (1) a newspaper publishing a photograph taken without consent of a patient in a psychiatric clinic; and (2) a TV station publishing identifying photographs of rape victims. I located one case where a New York appellate court found that if it was proven that the defendant had made false sexual assault allegations against the plaintiff, had threatened to make those allegations public, and had filed a false police report based on those allegations, it would be possible to sustain a claim for IIED.

In addition to IIED being a difficult claim to prove, courts in New York have stated that claims for IIED should not be considered where the same conduct gives rise to another tort action—like defamation. Because of this, Elliott may not to be able to sustain his IIED claim because he has also pleaded a cause of action for defamation.

Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress (“NIED”) is a confusing cause of action. For the first half of the tort’s existence, NIED could only be sustained if there was also a physical injury. In 1961 the New York Court of Appeals decided that reading was too narrow and expanded the tort to cover situations in which the plaintiff’s physical safety was threatened, or in which the defendant owed the plaintiff a heightened duty of care and the breach of that duty resulted in emotional harm. It is hard to see how either of these scenarios applies to this case. In his complaint, Elliott alleges that he suffered physical harm, but does not allege that the publication of the list threatened his physical safety. He also does not allege that Donegan or the other anonymous women owed him any duty of care that she breached. It is unclear what theory Elliott is proceeding under in claiming NIED, but it seems unlikely to be a successful claim.

As a friend who works in media, and knows people involved with the list told me: “Women have always had underground whisper networks of warnings, it’s just now you can put it on the internet and get caught.” But the very act of putting it on the internet changes these local whisper networks into something that is more widespread and permanent than any in-person social network could be, and which, as Elliott plausibly contends, can cause serious reputational and professional harm. Some of Elliott’s claims seem unlikely to gain any traction. But his defamation claim is plausible, and primarily depends on (1) whether Donegan can be held liable for the entire contents of the list, and (2) whether Elliott can prove that the allegations about his behavior are untrue. Discovery in the case and further litigation should reveal Donegan’s role in including the information about Elliott as well as how much of that information might be true.

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