A Lawsuit Tests the Limits of Anonymous Speech

A journalist wants to know who accused him of rape in a shared spreadsheet. What are the implications of outing or protecting his accusers?

Faisal Mahmood / Reuters

Last October, amid a national reckoning with unpunished sexual misconduct in the workplace, a journalist named Moira Donegan created a shared Google spreadsheet that she titled “Shitty Media Men.” Then she invited women in her industry to add names to it.

The document “collected rumors and allegations of sexual misconduct, much of it violent, by men in magazines and publishing,” she later explained. “The anonymous, crowdsourced document was a first attempt at solving what has seemed like an intractable problem: how women can protect ourselves from sexual harassment and assault.”

In mere hours, the list of accused men grew to more than 70 names as the document spread from its creator to the media professionals she invited to edit it to whatever unknown persons they included at their discretion. “It spread much further and much faster than I ever anticipated,” Donegan wrote, “and in the end, the once-private document was made public—first when its existence was revealed in a BuzzFeed article by Doree Shafrir, then when the document itself was posted on Reddit.”

Suddenly every man on the list was under intense public scrutiny. And among them was the journalist Stephen Elliott, a writer, an editor, and a filmmaker.

The entry noting his “alleged misconduct” read, “Rape accusations, sexual harrassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” (The last allegation references Binders Full of Women Writers, an invite-only Facebook group.) In the document’s telling, “Men accused of physical sexual violence by multiple women are highlighted in red.” His name was highlighted in red.

He later published an essay emphatically denying the rape allegations, writing in part:

I don’t like intercourse, I don’t like penetrating people with objects, and I don’t like receiving oral sex. My entire sexuality is wrapped up in BDSM. Cross-dressing, bondage, masochism. I’m always the bottom. I’ve been in long romantic relationships with women without ever seeing them naked. Almost every time I’ve had intercourse during the past 10 years, it has been in the context of dominance/submission, often without my consent, and usually while I’m tied up or in a straitjacket and hood. I’ve never had sex with anyone who works in media.

I am not seeking to come out about my sexuality as a means of creating a diversion, as Kevin Spacey appeared to do when he was accused of sexual misconduct. I’ve always been open about my sexuality, and I have even written entire books on the topic. I’ve never raped anybody. I would even go one step further: There is no one in the world who believes that I raped them.

The essay caused at least one named person to come forward, alleging untoward behavior––but nothing close to “multiple allegations of rape.”

Was Stephen Elliott defamed? Should Google be compelled to turn over data that could help him identify who put him on the list?

Those questions are at the heart of a federal lawsuit that he filed last week. It seeks at least $1.5 million in damages and a court-ordered retraction. This is an effort to think through its broader implications. Regardless of whether one sympathizes with the plaintiff or the defendants, the lawsuit raises significant legal issues that extend far beyond this case.

Prominent among them are questions of privacy and anonymous speech. In the lawsuit, the plaintiff states his intention to seek the identities of the people who created, circulated, edited, published, or publicized the list, in part by trying to force Google to turn over metadata from the spreadsheet. Google reportedly told The Hollywood Reporter, “We will oppose any attempt by Mr. Elliott to obtain information about this document from us.” According to The New York Times, “Google’s press team said that such information would be turned over if Mr. Elliott provided the company with a valid court order.” A journalist at The Verge questioned whether Google still has the data.

The Electronic Frontier Foundation opposes the plaintiff. In a blog post about this lawsuit, one of its staffers, Aaron Mackey, argues that the First Amendment “protects anonymous speakers like the contributors to the Shitty Media Men list, who were trying to raise awareness about what they see as a pervasive problem: predatory men in media.”

He continues:

As the Supreme Court has ruled, anonymity is a historic and essential way of speaking on matters of public concern—it is a “shield against the tyranny of the majority.”

Anonymity is particularly critical for people who need to communicate honestly and openly without fear of retribution. People rely on anonymity in a variety of contexts, including reporting harassment, violence, and other abusive behavior they’ve experienced or witnessed. This was the exact purpose behind the Shitty Media Men list.

Jezebel reached Andrew Miltenberg, the plaintiff’s attorney, who offered this rebuttal:

I believe in the First Amendment.

I equally believe in the Constitutional right for the accused to face their accusers. Otherwise, anonymous accusations can be made with impunity destroying reputations and careers. The defense of anonymous accusations should not be confused with stifling free speech. In fact, transparency and equity are the cornerstones of free speech.

Without being able to confront your accusers and their accusations, which comes from cross-examination, secret tribunals can willfully engage in character assassination, destroying what is fundamental in a free society and leaving us standing on the precipice of totalitarianism.

If the information is, in fact, obtainable, one can imagine the court arriving at a range of outcomes: giving the plaintiff access to nothing at all; or just information pertaining to the person or persons who made plausibly defamatory allegations against him; or information about anyone who spread the accusations by circulating the spreadsheet; or, most expansively, information about everyone who merely viewed the spreadsheet.

“Like many women in media, I viewed the list soon after it was created, and know countless other people who viewed and shared it,” Anna Merlan wrote in Jezebel. “I didn’t myself add any names to the list; a few people named on it were friends and former coworkers. Depending on how this is handled in the courts, I and countless other women in media could be one of the Jane Does identified as co-defendants.”

There is no consensus on how the court will rule, or how it should rule. Indeed, I suspect that many people’s intuitions would vary significantly depending on underlying questions of fact that we don’t know.

Consider a wide range of hypothetical scenarios that might explain how “rape allegations” wound up in the spreadsheet. Perhaps two different women who know the plaintiff each put “rape” in the spreadsheet, and a third woman condensed them to “rape allegations.” Or perhaps someone had heard rumors about the plaintiff, and without investigating them, simply added “rape allegations.” Or what if a man who’d never actually met the plaintiff in person but bore him a grudge gained access to the spreadsheet and added those words?

A staunch privacy advocate might want anonymity preserved in all those scenarios. Others would root for different outcomes in each situation.

Now consider the list more broadly. Hypothetically, what if it were the case that the first 55 entries were contributed by different journalists invited to edit the spreadsheet by its creator, but that the remaining entries were all submitted by a single IP address associated with a prominent alt-right troll, despite no apparent personal or professional overlap with any of the accused men? Forced to choose between making all or none of the IP addresses public—exposing victims of sexual misbehavior to scrutiny on one hand, preventing wrongly accused men from obtaining information that would clear their names on the other—what would you do?

Now imagine future cases that could be affected by the precedent set in this one.

Say that a group of fraternity boys collaborate on a shared Google spreadsheet that purports to list all the women with whom they’ve slept and to rate their sexual performance. The list becomes public, and one of the women on it seeks discovery so that she can sue whoever anonymously lied that he slept with her, hated it, and observed that she has herpes. Do you want case law that absolutely protects the rights of those fraternity boys to anonymous speech?

Or what if a small group of reform-minded police officers were concerned about corrupt colleagues wrongfully arresting innocents? They collaborate on a shared Google spreadsheet, flagging suspicious incidents and the officers involved in them as they contemplate what to do. Go to Internal Affairs? Alert the media? Share their worries with the district attorney? Tip off the public defender’s office? Before they decide, the document leaks, and an officer described as “infamous for planting evidence” sues to get the names of everyone who contributed to it. The contributors fear career consequences as well as violent retaliation. Do you want case law that leaves them without any right to anonymity?

One can imagine different “middle ground” precedents. If you could put forth an opinion that established the guiding language, what would it be?

Let’s imagine one more future case. Unnamed college students at a public university start a website called Make Them Scared, where they solicit and publish anonymous allegations of rape, sexual assault, and other sexual misconduct, noting, “We do not have the ability to absolutely determine whether any accused party is guilty of the accused acts … so take all names listed with a grain of salt.” That isn’t an imagined hypothetical like the other cases. It is going on right now at the University of Washington, according to an article in The Stranger by Katie Herzog.

Clearly, the anonymity questions raised in the lawsuit against Moira Donegan and her collaborators will not end with this case. And regardless of what information the plaintiff gets, the case against Donegan, whose identity is obviously known, raises its own thorny questions, including the distinction between acting as a publisher and providing a mere platform where others contribute information.

That aspect of the case will be discussed in an upcoming article.

For now, I invite you to email conor@theatlantic.com with any thoughts, comments, insights, or questions related to privacy and anonymity. What do you think would be the proper ruling here, and why? Can you think of hypothetical cases that might help to test our intuitions? What precedents would you find most salubrious or worrisome? And if you’re a legal expert, how do you think the case will actually go?