Extralegal Affairs

When Bari Weiss wrote of Stephen Elliot’s attempt to do something about the anonymous accusations of sexual misconduct against him that appeared on Moira Donegan’s “Shitty Media Men” list, it fell a bit shy of bringing a tear to my eye. From Elliot’s own self-description, he was a pretty shitty guy.

That doesn’t mean what happened to him was right, or that the anonymous, unproven accusations were right, or that Donegan’s list was right, but Elliot’s ruined reputation, and the destruction of his career and life that followed, wasn’t a hill worth dying on. Bad things happen to good people, but bad things also happen to bad people. Surely there would be a better puss to put on the poster of men wronged by anonymous unproven accusations.

But then Cathy Gellis at Techdirt took aim at Elliot for suing Donegan, as well as the anonymous people whose accusations appeared on her list, using a rather provocative title: 

Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

from the shitty-lawsuits dept

Aside from the question of whether Elliot deserves as many “shitties” as he received, there was the technical problem of his trying to ascertain who wrote the accusations, that he claimed were defamatory, in Donegan’s list. The strategy began with the only name he had, Donegan.

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.

Cathy’s point is well taken, that Donegan likely enjoyed Section 230 protection, as her list merely provided the vehicle for other women’s accusations. Yet, it feels as if the list was a vehicle designed to encourage proofless anonymous accusations of heinous conduct that circumvented legal process themselves, and were immune from recourse behind a wall.

It’s not that Elliot shouldn’t have had a mechanism to address his claim of defamation,* but that the peculiarity of the times, when anon unsubstantiated claims of sexual misconduct were good enough to believe and destroy lives, managed to find a crack through which to do their damage with impunity. It certainly feels all wrong, but the law doesn’t always provide a way to remedy whatever weird things people do.

But while Cathy’s point about Section 230 Safe Harbor protecting Donegan may be legally correct,** it hardly makes Elliot a shitty man for trying to find a way to vindicate his claim of defamation. If he was defamed, then what’s he supposed to do?

But then Michelle Goldberg entered the arena and made Stephen Elliot smell less nasty.

Donegan, however, didn’t write the allegations against Elliott. And his suit attempts to use her fiery feminism against her, saying she has a “well-documented history of publicly publishing statements professing a hatred of men.” Seeing this, any woman who contributed to the list — or merely forwarded a link to it — might feel the need to temper her anger at the patriarchy online.

The reason for making the allegation is obvious, as Elliot is likely a public figure and thus held to allege actual malice under Times v. Sullivan, not that Goldberg cares much about this nuance. But she uses the allegation to argue that it chills other women expressing “anger at the patriarchy online,” what’s called the “attack of the right-wing snowflakes.” Why Elliot is right wing is unclear, but pretty much the norm these days for anyone challenging Goldberg’s vision of social justice.

Now, however, things are changing. “In the same way that Time’s Up and #MeToo have kind of overturned decades, centuries of accepted wisdom about what is O.K. or not with respect to the treatment of women, we’ve seen a parallel overturning of accepted practices and norms about the advisability and, frankly, rationality of using defamation in this manner,” [feminist lawyer Roberta Kaplan] said.

In other words, some men are really angry, and the political faction that claims to hate political correctness is appealing to the state to shut people up.

Odd times when unproven accusations presented outside the realm of the law, and used to destroy their targets lives, are lionized while use of legal process, the means by which society has chosen to address the truth or falsity of heinous accusations, is vilified as “appealing to the state to shut people up.”

Whether Elliot’s suit is misdirected because of Section 230 is a fair question, but that he happens to be a guy doesn’t make him the poster boy for either “angry men” or “right wing snowflakes.” Whether he’s called a “shitty man” or worse, he’s doing nothing more than using the mechanisms society has crafted to vindicate claims of unlawful damage to remedy the harm at the hands of the mob.

If the mob is going to demand that “shitty men” be ruined on the basis of unproven, extralegal accusations, it’s disingenuous to attack the guy trying to use legal process, even if his case has problems, to deal with it. Or maybe we prefer mob rule and anything a man does in response is, by definition, shitty because men are shitty and deserve whatever happens to them for no better reason than he’s a man.

*To be clear, defamation is not protected speech, and there is nothing wrong with suing for defamation if a claimant believes that to be the case. That’s the mechanism society has created to address such issues, and it may be the only recourse given the growth of extralegal mechanisms to accuse that defy evidence or due process.

**Curiously, Cathy notes that Elliot brings suit in New York, where there is no anti-SLAPP law, rather than Louisiana, which has a fairly robust law. The simple reason is jurisdiction and venue based on the defendants’ location. Sometimes a cigar is just a cigar.

12 thoughts on “Extralegal Affairs

  1. wilbur

    “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.”

    Cathy, you’re full of shit.

  2. B. McLeod

    Defamation has always been a recognized limit on “free speech.” It should have occurred to the sponsor of this list that inviting anyone and everyone on the Internet to contribute anonymous and completely unverifiable allegations for worldwide publication might lead to a problem. Whether a jury here will deem that the plaintiff actually suffered any damage to his evidently somewhat sketchy reputation remains to be seen, but I doubt this one gets thrown out before trial.

      1. B. McLeod

        It seems to me that to support her claim that she was an “intermediary,” Donegan should at least need to show that the material in question actually came from somebody who wasn’t her. The fact that she stuck the list out there for input doesn’t prove she wasn’t also contributing some (or even all) of that input.

          1. Justin Wei

            Google Docs has an edit history feature so it’s possible that it could uncover who made the specific statements in question. Might need to ask Google do de-anonymize it, though.

  3. Black Bellamy

    And there I am, turning down the thermostat again. My wife tells me I’m chilling her. I tell her it’s Stephen Elliot. “Shut up!” she yells from the other room, “Step up, do the right thing!” I ask her how much she had to drink. “One beer!” A pause. “One beer, exactly!”. The dog and I look at each other. We heard this song and dance before. It’s indelible. I turn the heat back up and retreat to the tool shed – my safe harbor. My phone starts blowing up. It’s the patriarchy! Damn it.

  4. Bryan Burroughs

    Here’s your stupid legal “idea” from a non-lawyer of the day: If inciting violence is a 1st Amendment exception, why not also inciting defamation? Let’s make this happen! I can’t see anything that could go wrong…

  5. Matthew Scott Wideman

    What should a non-shitty man do? Because only a few hundred years ago a man would have had no choice but to try to redeem his honor through combat. Let us all hope that we don’t go back to that era.

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