469 F.Supp.3d 40
E.D.N.Y2020Background
- Plaintiff Stephen Elliott, an author, was named on a shared Google spreadsheet titled “Shitty Media Men” (Oct. 2017) with the entry “rape accusations, sexual harassment,” later highlighted and annotated to indicate multiple women had alleged physical sexual violence.
- Defendant Moira Donegan is alleged to have created, edited, circulated, and later publicly acknowledged (The Cut article) that she created the spreadsheet; she added a disclaimer acknowledging vulnerability to false accusations but stated she believed many claims.
- BuzzFeed and other outlets reported on the spreadsheet after it circulated; Donegan took the spreadsheet offline after ~12 hours; copies remain available elsewhere.
- Elliott sued for libel; Donegan moved to dismiss under Rule 12(b)(6), arguing (1) Elliott is a limited-purpose public figure so he must plead actual malice, and (2) § 230 of the Communications Decency Act (CDA) immunizes her conduct as an interactive computer service provider.
- The court denied the motion to dismiss: (a) at the pleading stage Elliott is not a limited-purpose public figure for the #MeToo workplace controversy; (b) CDA immunity was not evident on the face of the complaint, so dismissal on § 230 grounds was denied but the court ordered focused discovery on CDA issues before possible summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Elliott is a limited-purpose public figure | Elliott did not voluntarily inject himself into the #MeToo workplace controversy and lacked prominence on that specific issue | Donegan: Elliott’s publications and media presence make him a limited-purpose public figure requiring actual malice pleading | Court: Elliott is not a limited-purpose public figure at pleading stage; actual malice need not be pleaded now |
| Whether CDA §230 bars the suit | §230 does not apply because Donegan either created/fabricated content, materially developed defamatory content, or specifically encouraged unlawful postings | Donegan: she was an interactive computer service provider and merely published third-party user content; spreadsheet features/headers were neutral | Court: §230 immunity not conclusively shown on the face of the complaint; discovery ordered on factual CDA issues; motion to dismiss on §230 denied |
| Whether plausible actual malice was pleaded | Elliott alleges reliance on anonymous/unverified sources plus Donegan’s public statements that she doubted some claims — supporting an inference of actual malice | Donegan: plaintiff failed to plead actual malice with particularity | Court: did not decide as dispositive, but found plaintiff’s allegations could plausibly support actual malice at pleading stage |
| Whether Donegan’s highlighting/annotation of Elliott’s entry removed §230 protection | Plaintiff: highlighting and annotating (e.g., “multiple women allege misconduct”) materially altered content and contributed to unlawfulness | Donegan: categorization/highlighting is neutral assistance and does not amount to content development | Court: highlighting/annotation is neutral categorization and does not by itself defeat §230; factual discovery remains appropriate |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim to survive dismissal)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Palin v. New York Times Co., 940 F.3d 804 (2d Cir. 2019) (elements of New York defamation law)
- Biro v. Condé Nast, 807 F.3d 541 (2d Cir. 2015) (limited-purpose public-figure and actual malice principles)
- Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123 (2d Cir. 1984) (how to define relevant public controversy)
- Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980) (defining public controversy and contours)
- Makaeff v. Trump Univ. LLC, 715 F.3d 254 (9th Cir. 2013) (tethering controversy to timing of statements)
- Jankovic v. Int’l Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016) (defining controversy breadth and phase relationship)
- Fed. Trade Comm’n v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016) (§230: provider vs. information content provider; material contribution and specific encouragement tests)
- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (when website design/development of content defeats §230)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (neutral tools/assistance vs. development of defamatory content)
- Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) (actual malice requires high awareness of probable falsity)