Feature

Can A 'Shitty Media Man' Unmask His Accusers?

Law360 (October 18, 2018, 8:44 PM EDT) -- A controversial lawsuit filed last week over a list of men accused of sexual misconduct included a pointed threat to unmask the women who contributed to the document, setting the stage for a potential First Amendment battle over anonymous online speech.

Arriving just under a year into the #MeToo movement, the defamation case filed by writer Stephen Elliott against journalist Moira Donegan concerns her widely shared "Shitty Media Men" list, a Google spreadsheet that allowed women to anonymously share accusations of misconduct by powerful men.

While the case against Donegan herself raises important questions about free speech and internet law, she's not the only defendant named in Elliott's complaint. Also included were "Jane Does (1-30)," meaning the many people who anonymously contributed to the list.

And in his complaint, Elliott left little doubt about how he plans to find those defendants.

"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 wrote.

The inclusion of the Doe defendants sets the stage for the latest showdown over how and when courts should unmask nameless internet users — a scenario that asks courts to strike a difficult balance between a plaintiff's need for discovery with a defendant's First Amendment right to anonymous speech.

"Anonymous speech is of paramount importance to how we as Americans get information," said Dori A. Hanswirth, a veteran media attorney at Arnold & Porter.

"If we don't protect it, we would never get anything other than an official statement from a business or the government," she said. "There are real consequences for people who speak truth about powerful people."

It's when people aren't speaking the truth that makes the question of unmasking so difficult.

After all, a plaintiff with a legitimate claim of defamation or other wrongdoing against an unnamed defendant has a right to discover and sue that person, creating a tricky problem for courts that also want to give due deference to anonymous speech.

And while that tension is nothing new, the problem has grown exponentially over the past two decades, as the rise of the internet has created vastly more opportunities for anonymous speech, such as negative Yelp reviews, strongly worded tweets, or Google Doc spreadsheets of alleged abusers.

"There is a right to speak anonymously, but that right is not unlimited," said Ashley I. Kissinger, another longtime media litigator at Ballard Spahr LLP who has written extensively on Doe defendants. "Where is that yielding point?

"The law is still in relative infancy in this area — the cases go back only about 15 years — but the courts have already coalesced around a few different approaches," she said.

The most influential case law on the issue is a 2001 decision in New Jersey called Dendrite v. Doe , which created a basic framework for courts to follow that has since spread to other states.

For plaintiffs seeking to identify unnamed defendants, the so-called Dendrite standard asks a lot. They must first make a prima facie case — that is, provide evidence sufficient to establish each element of their claim. Then, the court will independently balance the need for disclosure against First Amendment concerns with doing so.

But though influential, that standard is far from universal. Instead, a state-by-state patchwork of approaches has cropped up with the rise of the internet. Some courts apply Dendrite, some modify it, some formulate new tests that aim to accomplish the same balancing act, and others go in an entirely different direction.

The situation continues to evolve to this day. In California, state appellate courts issued two rulings just last year over anonymous reviews on Yelp and Glassdoor, each of which explicitly rejected the need for extra First Amendment protections. In Texas, the issue is before the state's Supreme Court in a closely watched case over an anonymous review on Glassdoor.

Elliott's lawsuit was filed in the Eastern District of New York, where courts have previously adopted a Dendrite-like standard. In specific terms, that means he'll need to notify the Doe defendants of his request for their identity, identify the statements he believes are defamatory, and provide evidence that establishes a prima facie case against them. After that, the judge will consider the First Amendment concerns.

"Even if they can meet the other standards, the judge could say that the value of people having a place to put out allegations against powerful figures in their industry is a positive and [they will] factor that in," said Hanswirth.

Google, for its part, has already said it will "oppose any attempt by Mr. Elliott to obtain information about this document from us." Some outside commentators, meanwhile, have speculated that the tech giant's data policies may have already wiped any info linked to the list, which Donegan took down more than a year ago.

If the identifying data does exist, don't be surprised to see Google fighting to stop an unmasking order just as hard as Donegan or the Doe targets. Yelp has routinely litigated such cases in recent years, winning a ruling in California last year that a host company, not just the Doe, has standing to litigate that issue, and Glassdoor itself is litigating the big case in Texas.

That might be perceived as taking a stand for free speech and online anonymity, particularly in a case like Elliott's at a time like this, but experts say it's probably not quite that principled.

"Website hosts and other online platforms like Google often move to quash subpoenas seeking to unmask those who have spoken anonymously on their platforms," said Kissinger. "If it is easy for companies to unmask those criticizing them on these platforms, people will no longer contribute that commentary and this hurts the bottom line of the websites."

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Elliott v. Donegan et al


Case Number

1:18-cv-05680

Court

New York Eastern

Nature of Suit

Assault Libel & Slander

Judge

LaShann DeArcy Hall

Date Filed

October 10, 2018

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