Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List
from the shitty-lawsuits dept
In the wake of the revelations about Harvey Weinstein, writer Stephen Elliott's name ended up on a Google doc called Shitty Media Men, along with the information "Rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???" listed under the column heading "ALLEGED MISCONDUCT" and the additional note that, "Multiple women allege misconduct." He has now sued Moira Donegan, the owner of the Google doc, and dozens of anonymous third-party contributors to the list for defamation, as well as intentional and negligent infliction of emotional distress. He has also now cemented his reputation as a very shitty man.
First, let me say that I do not call Stephen Elliott a shitty man because of what posters to the Shitty Media Men list wrote about him. He's shitty for filing this lawsuit against the host of and contributors to the list, seeking to chill the speech of those who would speak out against bad behavior. He's shitty for threatening to unmask people who had exercised their right to speak anonymously to warn others of potential harm.
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.
He's shitty for leaving everyone vulnerable to continued abuse, from any source, since by deterring speech about abuse, abuse will now be so much harder to check. And he's shitty for using disproportionate power to quell those who tried to resist him (which, of course, seems an odd play for someone who wants people to believe that claims he did the same sexually could not possibly have been true).
Because his power here is indeed unequal. The pen may be mightier than the sword, but it is no match for a lawsuit. A lawsuit targeting speech is giant tax on expression, extracting an immense cost for what should have been free to do. Speech isn't free when one must pay a minimum of five or six figures – if not more – to defend the right to "freely" express it.
This story therefore touches on a number of the issues we often talk about here at Techdirt highlighting this recurrent power imbalance that keeps threatening to make the right to free speech illusory. There's the chilling effect of the suit itself, both on these defendants and anyone else who might now be prompted to rethink speaking out in the future. There's the attack on anonymous speech, upon which public discourse often depends. And then there's the targeting of the intermediary in order to pressure those who enable others' speech to cease doing so.
That last line is an aspect to the suit particularly worth noting here. One of the points we keep making is that Section 230 isn't just about Facebook (or Twitter, or Google, or Yelp, etc…); it's about regular Internet users. This suit exemplifies why it's so important to preserve its critical protections for intermediaries of all sorts: because someday you, too, may want to facilitate the exchange of important information in a Google doc, and you might not want to be sued for it.
"In the beginning, I only wanted to create a place for women to share their stories of harassment and assault without being needlessly discredited or judged," Donegan wrote in The Cut in January 2018. "The hope was to create an alternate avenue to report this kind of behavior and warn others without fear of retaliation."
In this case, the progenitor of the Google doc was an intermediary enabling other people to express themselves through the online service – in this case, the Google doc – she provided. Section 230 allows that intermediaries can come in all sorts of shapes and sizes, because its immunity is provided broadly, to any provider of an "interactive computer service," which is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server." That's what Donegan did with her Google doc: provide access to software to multiple users. If anything is somehow wrong with the content they contributed through this service, then they can be held responsible for it. But per Section 230, not Donegan.
(In his complaint Elliott does accuse Donegan of editing the spreadsheet, but not in ways that transcend the typical editing activity of an intermediary protected under Section 230.)
And it shouldn't be the other contributors either. None actually accused him of rape; the statement in question reflected only that that there had been accusations of it. Elliott's complaint would have Donegan and any author of this spreadsheet entry bear the burden of proving that he actually raped someone in order not to be liable to him. But that's not how defamation law works, nor is it how it should work. As the Supreme Court observed in New York Times v. Sullivan:
A rule compelling the critic … to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics … may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor and limits the variety of public debate.
The burden is therefore on the plaintiff to show that the statement was false or was made in reckless disregard of the truth. Even if he were to be considered a private, rather than public, figure the burden would still be on him to show that the defendants at least demonstrated a negligent, rather than reckless, disregard for the truth, but it would be strange for him to argue his own cultural irrelevance in order to be able to prevail on that lower standard. His complaint itself laments a loss of stature that suggests he was at least a limited-purpose public figure, and thus required to prove "actual malice," which, despite some handwringing about Donegan's public feelings about other terrible men, the complaint doesn't seem to do. The lawsuit is also over speech about a matter of public importance, which in New York would also prompt the higher standard, which likely would need to be met before unmasking the speakers.
[U]nder prior case law, Google cannot be compelled to reveal the identity of an anonymous poster unless and until Elliott can prove that the posts were libelous, said Paul Levy, an attorney with Public Citizen who has helped establish precedent for when a court can compel an internet provider to identify an anonymous user. So if Elliott's attorneys want to identify the list contributors, they'll have to prove his case of libel before Google can be compelled to provide the information.
Furthermore, the only "truth" at issue here is whether he had ever been accused of rape. There could have been a false accusation and the statement would still be true. But what Elliott really wants is for the court to grant him a "get out of rape accusation free" card, if these anonymous speakers cannot substantiate his guilt. Which is what renders this lawsuit the piece of crap SLAPP that it is, and illustrates why a strong anti-SLAPP law needs to apply. The complaint was filed in New York, which has an infamously limited anti-SLAPP law, but it's notable that, per the complaint, Stephen Elliott lives in Louisiana, where there is a decently strong anti-SLAPP law. If that law is found to apply, it could lead to Elliott having to pay everyone else's legal bills.
But even so, the essential truth will remain. Even if Elliott had never before victimized women, this lawsuit is an attempt to victimize them now by burdening them with a cripplingly expensive and impossible task. And for this behavior he indeed is a shitty man.
Filed Under: anonymity, anonymous speech, anti-slapp, bullying, cda 230, defamation, intermediary liability, me too, moira donegan, shitty media men, slapp, stephen elliott, unmasking
