Home » Legal Stuff » When The ‘Whisper Network’ Goes Public: The ‘S****y Media Men’ List, 2 Years On

When The ‘Whisper Network’ Goes Public: The ‘S****y Media Men’ List, 2 Years On

6 September 2019

From National Public Radio:

In 2017, the “S****y Media Men” list began making the rounds on the Internet. Coming right on the heels of the downfall of movie producer Harvey Weinstein, the list seemed poised to take down even more men in media. The editable, crowdsourced spreadsheet contained accusations — all made anonymously, that ranged from “creepy” direct messages to “rape” — against prominent figures in journalism and publishing.

“Wikipedia wrapped in razor blades” is how journalism professor and news veteran Jill Geisler described the list at the time, pointing out that the list represented a welcome reversal of power and gender dynamics, as well as potential to cause harm. “By all means examine it — but do so carefully or there may be a lot of blood on your hands,” Geisler wrote.

One man on the list who believes his life was damaged is Stephen Elliott, author of The Adderall Diaries, as well as other books. He has filed a defamation lawsuit against list creator Moira Donegan, and the anonymous “Jane Doe” contributors.

. . . .

The Google spreadsheet Donegan created and shared with her female friends in media allowed contributors to add men’s names, employers and allegations against them. Donegan has said the list was meant to be private. In an essay in The Cut, in which she outed herself as the list’s creator, she says she took it down after 12 hours because she was overwhelmed by the response. But the spreadsheet — which was not password protected — was shared widely throughout the media industry, reported on in a Buzzfeed article, and versions of it were posted on Reddit and YouTube.

As Stephen Elliott describes it, appearing on the list resulted in a brutal fallout — both personally and professionally. Elliott is an acclaimed writer who has written extensively about his own destructive behavior. The New York Times wrote that his novel Happy Baby is “the most intelligent and beautiful book ever written about juvenile detention centers, sadomasochism and drugs.” A movie inspired by The Adderall Diaries starred James Franco and Cynthia Nixon.

But, Elliott says, when his name appeared on the Media Men list, the literary community “turned” on him. “I kind of stopped introducing myself as a writer, actually,” he says. He thought at first that the accusation against him — rape — was ludicrous. “I knew that was false,” he says. “I knew, not only that I had not ever raped anybody but also that there was nobody out there that thought I raped them.”

Even so, he says that media coverage planned for a new book he had coming out was canceled and that he was uninvited from book events. He claims his agents dropped him. Some sources close to his agents’ decisions deny Elliott was dropped because of the list. Elliott wrote a long essay — published on Quillette — in which he denied the allegations and talked about how the list damaged his career. But, he says, even that didn’t make things better. Within the literary community, he contends, minds were made up.

“I just realized that my community was not going to engage with me on this in good faith,” says Elliott. “‘You’re accused of rape. You’re on the S****y Media Men list. You’re canceled. You cannot be in this community anymore.'” Elliott figured: “The only way to clear my name is to file a lawsuit.”

. . . .

Long before the #MeToo movement reached its peak, women shared the names of the men they believed to be sexual predators informally, through “whisper networks.” Moira Donegan has compared the “S****y Media Men” list to those networks.

She declined to be interviewed for this story, but her attorney, Roberta Kaplan, agrees, saying the goal of the list was to keep women safe: “So that if a certain guy who you worked for was on the list you would know not to go out to drinks with him, or not to be alone in a room that you might be compromised with him in. And it was really meant as a kind of a warning and as a protection mechanism.”

At the top of the spreadsheet, Donegan included a disclaimer that reads: “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt. If you see a man you’re friends with, don’t freak out.”

“What Moira was doing with this list was a very good faith effort,” says Kaplan, “not to try to get men in trouble — but to protect women from not being in these situations going forward. And under the First Amendment, given the fact that she did in good faith and given the fact that that was her motive, she can’t be sued for doing it.”

. . . .

NPR reached out to several men on the list. Aside from Elliott, only one agreed to an interview on the condition that his name not be used. He denies the allegations made against him. “It’s breached every corner of my life,” he says.

“Being accused of sexual assault is a really difficult thing to deal with. It makes you call into question every potential or actualized romantic or sexual relationship. Every interaction that I’ve had,” he says. “I spent months just thinking through everything that I had ever done and looking for something that would back [the allegation] up. When you’re accused of something like that it’s hard not to suspect yourself, I guess, in the way other people might suspect you.”

. . . .

As for Elliott’s defamation lawsuit against Donegan, a judge gave Elliott permission to subpoena Google for the names of the anonymous contributors. A Google spokesperson tells NPR the company “objects” to the subpoena.

Elliott’s lawyer Andrew Miltenberg says this case isn’t just about the “S****y Media Men” list. It’s about how we feel, as a society, about anonymous allegations of serious offenses that can stay online forever.

“This could be any of us. This could be any one of us, in any of our professions, could be anonymously attacked over and over again until our reputation is destroyed,” says Miltenberg.

Link to the rest at National Public Radio

Regardless of the political background, PG says the spreadsheet and online publication of its contents as described in the OP was almost certainly going to attract a defamation suit.

First, some definitions, per Law.com: (emphasis and paragraph breaks supplied by PG):

defamation

n. the act of making untrue statements about another which damages his/her reputation.

If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Damages for slander may be limited to actual (special) damages unless there is malice.

Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.

Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Truth is a defense a defamation suit.

Continuing from Law.com:

libel

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others.

Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation.

It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie.

Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion.

While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue.

Proof of malice, however, does allow a party defamed to sue for general damages for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages.

. . . .

Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect.

2) v. to broadcast or publish a written defamatory statement.

Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. . . . broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses.

Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune to actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct.

The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U.S. Supreme Court decisions.

Here’s a link to another story written by the originator of the list identifying herself.  Here’s a story identifying the list that appeared shortly thereafter providing more analysis and originating the “Wikipedia wrapped in razor blades” characterization of the list.

Back to PG’s thoughts. He will note that the lawsuit was filed in New York and that state’s libel laws will govern the outcome. He will write here only generally about the way defamation laws are written and enforced across the United States. Needless to repeat, nothing on TPV is legal advice. You obtain legal advice by hiring a lawyer, not by reading a blog.

PG suggests that the originator of the “S****y Media Men” list “published” the list for libel purposes when she sent it to a group of friends. Publication doesn’t have to occur in The New York Times to provide that element of a libel claim.

PG thinks that an accusation of rape most definitely qualifies as an accusation of a crime for purposes of the libel per se definition.

Does the originator of the list bear responsibility if someone else added the plaintiff’s name to the list and if, as the plaintiff claims, he did not rape that person or anyone else?

Was it reckless for the list’s original creator to send word of the list and provide access to a lot of her friends and leave access to the spreadsheet open for a period of time, thus enabling anyone who learned of the existence of the spreadsheet to add material, including the person who entered the plaintiff’s name and details of the alleged rape?

If the list was semi-public, should the originator have reasonably foreseen that one or more people would copy the list and republish it more widely and that the contents of the list would spread virally across the public internet?

Is the originator of the list responsible for its widespread distribution, including the broad dissemination of the plaintiff’s name, which was allegedly entered by someone other than the originator of the list?

Should the originator have reasonably foreseen that the limited publication of the list and the ease with which it could be further spread would lead someone to enter the Plaintiff’s name on the list as the perpetrator of a rape when such an allegation was, in fact, false?

PG notes that, based upon the contents of the OP, there was no way of confirming the identity of any of those who may have entered accusations against any of the men on the list, including the Plaintiff? Based on the OP, it appears that even the gender of people who included accusations on the list could not be verified.

Lest anyone mistake PG’s personal (rather than legal) opinions, he believes that anyone who commits a sexual assault on another person is guilty of a serious crime and should receive a severe punishment. He also acknowledges the many difficulties the victim may face in making an accusation of such crimes to an appropriate law enforcement agency and following through with that accusation through the criminal legal processes to a conviction and imposition of punishment upon the perpetrator of such a crime.

PG will note that the single most difficult court matter in which he was involved back when he spent a lot of time in court was as the appointed legal representative of a juvenile female victim in the rape trial of her assailant.

That said, false accusations of rape against someone who did not commit that crime or any lesser similar crime are also abhorrent and do nothing to improve the status of women who are victims of rape. In addition to the injustice done to the man, news of such false accusations play into the hands of defense counsel representing a properly-accused rapist when counsel casts doubt upon the truthfulness of the rape victim’s testimony.

Here’s a link to a bit more about defamation from Nolo.

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15 Comments to “When The ‘Whisper Network’ Goes Public: The ‘S****y Media Men’ List, 2 Years On”

  1. Too much like that ‘no fly’ list, no proof is needed and even if you somehow manage to clear yourself you’re still tarnished for life.

  2. And a further question…

    If someone else downloads a file and they live in the UK or a European country is the person who uploaded the file also subject to libel actions in other countries?

    Could uploading such a document fall foul of other laws even if the document is true? In some jurisdictions there are restrictions on publication of information prior to criminal court cases. Further, many jurisdictions restrict publication of private information based on data protection or privacy law except after some form of due process.

  3. I like your analysis PG, although my own would tweak an element as the end, as I think that one depends on jurisdiction…

    – Publication? Written and shared, so likely yes in most jurisdictions;

    – Sharing of negative information? Rape is serious accusation, so yes in any Western jurisdiction;

    – Knew or ought to have known? Clearly, as it was written in #MeToo context and directly related;

    Where I slightly disagree, and as I said, I think it will depend on jurisdiction, is the defence against said suit.

    The first defence, truth, is great, but it sometimes has nuances — if it was shared with malicious intent, it might not be enough for it to just be true. Good start, but also has to be either newsworthy or shared for a positive reason (can’t be just to be salacious or vindictive). In many jurisdictions, also matters if it was already public. She can try to wrap herself in the noble purpose of protecting others, but that is a double-edged sword for intent — it proves conscious and intentional distribution, which implies it was all meant to be taken seriously as warnings to others.

    Equally, a second defence could be that the originator may or may not have included the name. Same argument as piracy sites — she provided the platform, not the content. If his name was on the original list, she’s toast; if it was added later, she has some wiggle room for culpability (definitions of reckless varies by jurisdiction from strict to only egregious stupidity).

    But my real question is whether or not the info in the column of the “accusation” rises to the level of an accusation or merely a summary of gossip. Even some reputable newspapers use this technique when they can’t 100% double-verify a fact…”Rumours are floating that John has been violent with his wife”. Some of the items in the same column, like “creepy”, are simply subjective opinions, and would not rise to such a standard. So the intent of the column may also be important for a defence. If she only included factual info she could verify, and someone added other material, she might be well-poised, or she only “summarized” rumours she’s heard.

    Should be interesting, in a depressing sort of way. I find it difficult to believe that edits aren’t tracked by IP though.

    P.

    • Good points, Paul.

      Perhaps the originator only published part of the list that did not include the name of the Plaintiff, then another added the name of the Plaintiff and published the list.

      That might be one reason for the Negligent Infliction of Mental Distress count in the complaint (which the trial judge dismissed).

  4. The next great legal thriller: crowdsourced libel.
    The sequel: crowdsourced blacklist conspiracy.
    Third volume: crowdsourced flash-mob murder.

    After that the protagonist goes hermit or eats a gun.

  5. I call dibs on the crowdsourced flash-mob murder.

    Wait. Wasn’t that done in Murder on the Orient Express?

    • Pre-planned, wasn’t it?

      Shouldn’t be hard to orchestrate in today’s environment.
      Create a crimes of xxx website, let it fill up with heinous rumors, then advertise a public location where target can be found. (Doxing!) Wait for a lynching mob to show up.

      The latter has happened.
      The former will sooner or later make it happen.

      Easy as 1-2-3.

      Have at it.
      Let’s see Perry Mason prosecute tbat case.

  6. In the publishing world, women now rule and men drool… or beg… It is what it is. Women decide what gets published and what is promoted, pushed to the fore, etc. Add that to the MeToo movement and you have essentially what writers had to contend with in the old Soviet Union. Yes, men can write and publish, but it will be disappeared, or somehow de-monitized. This is why I wrote Talk to a Real, Live Girl. I would not want to be a young man coming up in America now. Seriously. I was a young man in the 60s/70s, when women were feminine and (most of them) liked men, wanted to be pursued by men. That is quickly changing. When men are demonized in the popular culture, especially white men, who benefits? I let you all ponder that.

    • Nobody.
      Not in the long or even medium term.

      The WaPo a few months back had a character study of a young suburban kid from a liberal family who fell in with actual skinheads.

      His profile?
      Middling student, not female, not athletic, or rich or particularly good looking. A bit on the pudgy side. Not shy but no friends. He didn’t belong to any high school clique cause he didn’t fit with any. Not gay, goth, bookish, or anything. Just ordinary. And alone.

      He graduated but couldn’t afford college, didn’t qualify for AA or any other preference. Ended up in an entry level job living with his mother.

      Eventually he found a group who told him it was okay to be white and male. Even found a girlfriend. So what if they vilified minorities and jews? (His godmother is jewish.) He didn’t actually hate anybody but they accepted him, gave him a tribe. He got a buzzcut, attended rallies, learned to shoot, started working out.

      Not a unique story.
      At least he found *somewhere* to belong.
      The guys shooting up places looking to get killed by coos don’t have even that.

      Actions breed reaction.

      Nobody wins this game.

    • So, let the women rule publishing. Who cares who rules it? They are poor paying jobs in a dead end field.

      Amazon is dangling a gold ring out there. It’s a choice.

  7. Also the Vic Mignogna lawsuit and the Meyer vs Waid lawsuit, both of which are having a hard time in pre-trial stuff about defamation and tortious interference with contracts. Sad and disturbing.

    The Mignogna case has brought out evidence that most of an anime dubbing company was up to no good, and Mignogna only got named in the “Broken Staircase” list because he was not doing bad stuff but was being considered as a director and producer.

    Meyer was just a YouTube guy with opinions, wholesome ones, and with a multiracial family, being accused of white supremacy to stop his new comic from being published. And it was dumb, because of course he just self-published instead. Try to ruin a man’s reputation, for nothing but envy and hatred of him? Why?

    I hope the lawsuits succeed, if only because campaigns to ruin people and destroy art should not be allowed to succeed. It is not safe or fair. Do we really want duelling to come back?

    • Hmmm…
      Today we have Tasers…

      Again, Heinlein’s BEYOND THIS HORIZON had dueling.
      With a couple of twists. Made for a very civil and polite society. “Justice, no waiting”.

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