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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STEPHEN ELLIOTT,
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Plaintiff,
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-against:
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MOIRA DONEGAN, and JANE DOES (1-30),
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Defendants.
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Case No.: 18-cv-5680

PLAINTIFF’S MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT DONEGAN’S MOTION TO DISMISS

Dated: June 6, 2019
New York, New York
NESENOFF & MILTENBERG, LLP
Andrew T. Miltenberg, Esq.
Nicholas E. Lewis, Esq.
363 Seventh Avenue, 5th Floor
New York, New York 10001

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Table of Contents
Page
Table of Authorities ........................................................................................................... iii
Preliminary Statement ..........................................................................................................1
Factual Statement .................................................................................................................2
Argument .............................................................................................................................3
I.

DEFENDANT’S CONTENTION THAT PLAINTIFF HAS NOT ADEQUATELY
PLEADED ACTUAL MALICE IS FRIVOLOUS UNDER CLEAR AND
CONTROLLING CASE LAW ....................................................…...……………..3
A. Defendant Donegan Has Not Established and Cannot Establish That Plaintiff is a
Public Figure ............................................................................................................3
B. Plaintiff has Pleaded an Incontrovertible Case of Actual Malice Under Clear,
Controlling Supreme Court and Second Circuit Law ..............................................7
1. Standard of Review ............................................................................................7
2. Reckless Disregard for The Truth Exists When Defendant Had Serious Doubts
as to Truth at the Time of Publication ...............................................................7
3. Defendant Has Publicly Admitted That She Entertained Serious Doubt as to
The Truth of the List’s Accusations...................................................................8
4. Defendant Additionally Acted with Reckless Disregard by Publishing Wholly
in Reliance on Unverified Anonymous Sources without Making Any Effort to
Verify or Substantiate ......................................................................................11
5. Plaintiff has also Adequately Pleaded Knowledge of Falsity ..........................12
6. The Complaint Pleads Particularized Facts Showing that Defendant Acted
with Ill Will, Further Bolstering an Inference of Actual Malice .....................13

II. DEFENDANT HAS NOT ESTABLISHED AND CANNOT ESTABLISH
IMMUNITY UNDER SECTION 230 OF THE COMMUNICATIONS DECENCY
ACT .........................................................................................................................14
A. Defendant Grossly Misrepresents the Applicable Standard of Review .................14
i

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B. Far from Conclusively Establishing Immunity Under Section 230, The Allegations
in the Complaint Establish that Defendant acted as an Information Content Provider
and is Therefore Disqualified from Section 230 Immunity ...................................17
Conclusion .........................................................................................................................22

ii

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Table of Authorities
Cases

Page(s)

Abbas v. Dixon,
480 F.3d 636 (2d Cir. 2007)...............................................................................................15
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................................7
Banco Santander de P.R. v. Lopez-Stubbe,
324 F.3d 12 (1st Cir. 2003) .................................................................................................16
Barreca v. Nickolas,
683 N.W.2d 111 (Iowa 2004) ............................................................................................11
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ............................................................................................19
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ........................................................................................................7,13
Biro v. Condé Nast,
807 F.3d 541 (2d Cir. 2015)...............................................................................7, 11, 12, 13
Broadspring, Inc. v. Congoo, LLC,
2014 U.S. Dist. Lexis 116070 (S.D.N.Y. 2014) ..................................................................6
Claude v. Wells Fargo Home Mortgage,
2014 U.S. Dist. Lexis 112493 (D. Conn. 2014) .................................................................16
Curran v. Amazon, Inc.,
2008 U.S. Dist. 12479 (S.D. W. Va. 2008).................................................................16, 20
Doctor’s Assocs., Inc. v. QIP Holders, LLC,
2007 U.S. Dist. Lexis 28811 (D. Conn. 2007) .......................................................15, 16, 19
Doe v. GTE Corp.,
347 F.3d 655 (7th Cir. 2003) ..............................................................................................15
Duffy v. Leading Edge Prods.,
44 F.3d 308 (5th Cir. 1995) ................................................................................................13
Fair Housing Counsel v. Roomates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) ............................................................................................20
iii

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Franze v. Bimbo Foods Bakeries Distrib., LLC,
2019 U.S. Dist. Lexis 43432 (S.D.N.Y. 2019) ..................................................................15
Foretich v. Capital Cities/ABC,
37 F.3d 1541 (4th Cir. 1994) ................................................................................................3
FTC v. Accusearch, Inc.,
570 F.3d 1187 (10th Cir. 2009) ..........................................................................................20
FTC v. LeadClick Media, LLC,
838 F.3d 158 (2d Cir. 2016).............................................................................14, 17, 21, 22
FTC v. LeanSpa, LLC,
920 F. Supp. 2d 270 (D. Conn. 2013) ...........................................................................15 16
Garrison v. Louisiana,
379 U.S. 64 (1964) ...............................................................................................................8
Gertz v. Robert Welch,
418 U.S. 323 (1974) .....................................................................................................4, 5, 6
Hale v. Scott,
371 F.3d 917 (7th Cir. 2004) ..........................................................................................9, 21
Hardaway v. Hartford Pub. Works Dep’t,
879 F.3d 486 (2d Cir. 2018)...............................................................................................15
Harte-Hanks Communications Inc. v. Connaughton,
491 U.S. 657 (1989) .............................................................................................................8
Henry v. Nannys for Grannys Inc.,
86 F. Supp. 3d 155 (E.D.N.Y. 2015) .................................................................................16
Hutchinson v. Proxmire,
443 U.S. 111 (1979) .........................................................................................................5, 7
Hyson USA v. Hyson 2U, Ltd.,
821 F.3d 935 (7th Cir. 2016) ..............................................................................................16
Jang v. Trustees of St. Johnsbury Acad.,
331 F. Supp. 3d 312 (D. Vt. 2018).......................................................................................5
Krauss v. Globe International, Inc.,
251 A.D.2d 191 (N.Y. App. Div. 1st Dept. 1998) ............................................................3, 5
iv

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Lebeau v. Town of Spencer,
167 F. Supp. 2d 449 (D. Mass. 2001) ..................................................................................9
Lluberes v. Uncommon Prods.,
663 F.3d 6 (1st Cir. 2011) .....................................................................................................5
Martin v. Wilson Pub. Co.,
497 A.2d 322 (R.I. 1985) .....................................................................................................9
Matthaus v. Hadjedi,
2018 N.Y. Misc. LEXIS 1682 (N.Y. Sup. Ct. 2018) ...........................................................3
MCW, Inc. v. BadBusinessbureau.com, LLC,
2004 U.S. Dist. Lexis 6678 (N.D. Tex. 2004) .............................................................20, 21
Meloff v. New York Life Ins. Co.,
240 F.3d 138 (2d Cir. 2001).................................................................................................8
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .............................................................................................................7
Next Communications v. Viber Media,
2016 U.S. Dist. Lexis 43525 (S.D.N.Y. 2019) ..................................................................16
Novak v. Overture Servs., Inc.,
309 F. Supp.2d 446 (E.D.N.Y. 2004) ..........................................................................15, 16
NPS, LLC v. StubHub, Inc.,
2009 Mass. Super. Lexis 97 (Mass. Super 2009) ..............................................................21
Patmont v. Int’l Christian Missionary Ass’n,
142 Minn. 147 (Minn. 1919)..............................................................................................21
Richards v. Direct Energy Servs.,
915 F.3d 88 (2d Cir. 2019)...................................................................................................7
Romero v. Bestcare, Inc.,
2017 U.S. Dist. Lexis 18786 (S.D.N.Y. 2019) ..................................................................16
SEC v. Caledonian Bank, Ltd.,
145 F. Supp. 3d 290 (S.D.N.Y. 2015)................................................................................16
St. Amant v. Thompson,
390 U.S. 727 (1968) .......................................................................................7, 9, 10, 11, 12
v

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Sullivan v. American Airlines,
26 Misc. 3d 1202 (A) (N.Y. Sup. Ct. 2018) aff’d in part and modified in part on other
grounds, 80 A.D.3d 600 (N.Y. App. Div. 2d Dep’t. 2011) .................................................. 4
Skakel v. Grace,
5 F. Supp. 3d 199 (D. Conn. 2014) ......................................................................................4
Spagnola v. Chubb Corp.,
574 F.3d 64 (2d Cir. 2009)...........................................................................................15, 22
Taylor v. City of Shreveport,
798 F.3d 276 (5th Cir. 2015) ..............................................................................................16
Statutes
47 U.S.C. § 230 ..................................................................................................................14
Other Authorities
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/takesomething-with-a-grain-of-salt ............................................................................................9
Oxford English Dictionaries, https://en.oxforddictionaries.com/definition/rumour............9
Oxford English Dictionaries, https://en.oxforddictionaries.com/definition/multiple ........18

vi

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Plaintiff’s Memorandum of Law in Opposition to Defendant Donegan’s Motion to Dismiss
Preliminary Statement
On or about October 11, 2017, a spreadsheet entitled “Shitty Media Men” was
anonymously posted online, accusing certain men of rape, sexual assault, and other grossly
defamatory sexual misconduct. The men were identified by name; the sources of the accusations
were not identified in any way. Nor was any information provided supporting the vicious charges.
See Plaintiff’s Second Amended Complaint (hereafter the “Complaint”), filed May 6, 2019, ¶¶ 12, 17-18.
Plaintiff Stephen Elliott, a writer, was among the men named and defamed. His entry on
the document (hereafter the “List”) included accusations of “rape,” “coercion,” and “sexual
harassment,” and was highlighted in red, indicating—according to an explanatory header
published on the List itself—that he had been “accused of physical sexual violence by multiple
women.” Complaint ¶¶ 24-28. All these accusations were outrageously and completely false.
On October 12, 2017, Buzzfeed published an article about the List. More articles soon
followed in the New York Times, the New Yorker, the Atlantic, Harpers, and elsewhere. The List
remained publicly available online; untold numbers of readers saw its allegations. Mr. Elliott was
blacklisted by important media outlets, vilified on social media, and ostracized by his community.
His own sister telephoned him from Chicago to say she’d heard he’d been accused of rape. As a
direct result of the List, Plaintiff’s career and reputation suffered irreparable damage, he has
received a consistent stream of hateful harassment, his home has been repeatedly vandalized, and
he has suffered devastating psychological injury, including suicidal ideation requiring intensive
therapy, as well. Complaint ¶¶ 29-30, 34-38, 40-43, 49-52.

1

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In January 2018, Defendant Moira Donegan published an essay in New York magazine
proudly taking credit for the List, admitting that she created it and circulated it online. In this
essay, Ms. Donegan also acknowledged that she was responsible for the red-highlighting system
used on the List to communicate that an individual had been “accused of physical sexual violence
by multiple women.” Ms. Donegan further admitted that at the time she published the List, she
was “seriously” “concern[ed]” as to the truth of its accusations, some of which she conceded were
“only . . . rumors.” Far from being upset about the devastating consequences false rape accusations
could have, Ms. Donegan admitted in a subsequently deleted tweet that she “liked the witch hunt.”
For her efforts, Ms. Donegan has been well rewarded, receiving a book contract worth at least six
figures. See Complaint ¶¶ 27, 39, 44.
Plaintiff sued, and Defendant Donegan has moved to dismiss; this Memorandum is
respectfully submitted by Mr. Elliott in opposition to that motion. Evidently, Ms. Donegan
believes that the Constitution and laws of this country permit her with complete impunity to
recklessly or knowingly publish defamatory, anonymous, utterly false accusations destroying an
innocent man’s career, reputation, and personal life, without the slightest effort to confirm those
accusations, and without any regard for their consequences. She is mistaken.
Factual Statement
The facts of this case are set forth in detail in the Complaint, which must, of course, be
taken as true on this motion. Given the Court’s familiarity with this case, and because Defendant’s
motion must be denied as a matter of law, Plaintiff will not repeat the facts here but refer to them
below insofar as they are pertinent to this motion.

2

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Argument
Defendant Donegan makes two claims in support of her motion to dismiss: (1) that Plaintiff
has not adequately pleaded actual malice; and (2) that she has immunity under the federal
Communications Decency Act. Both claims are frivolous.
POINT ONE
DEFENDANT’S CONTENTION THAT PLAINTIFF HAS NOT
ADEQUATELY PLEADED ACTUAL MALICE IS FRIVOLOUS
UNDER CLEAR AND CONTROLLING CASE LAW
Asserting without argument that Plaintiff is a public figure, Defendant Donegan contends
that the Complaint does not adequately plead actual malice. Memorandum of Law in Support of
Defendant Moira Donegan’s Motion to Dismiss, May 8, 2019 (hereafter “Def. Mem.”) at 6-13.
This contention fails for two reasons. First, Defendant has not established, and cannot establish,
that Plaintiff is a public figure. Second, the Complaint plainly pleads a valid claim of actual malice
under the clear, controlling case law of the Supreme Court and Second Circuit.
A.

Defendant Donegan Has Not Established And
Cannot Establish That Plaintiff Is A Public Figure.

It is beyond dispute—although Defendant neglects to mention it in her Memorandum of
Law—that in defamation cases, the defendant bears the burden of proof on the public figure issue.
See, e.g., Foretich v. Capital Cities/ABC, 37 F.3d 1541, 1553 (4th Cir. 1994) (“the defamation
plaintiff” is “presume[ed]” to be “a private individual, subject to the defendant’s burden of proving
that the plaintiff is a public figure”) (emphasis added); Krauss v. Globe International, Inc., 251
A.D.2d 191, 192 (N.Y. App. Div. 1st Dept. 1998); Matthaus v. Hadjedj, 2018 N.Y. Misc. LEXIS
1682 (N.Y. Sup. Ct. 2018) (“The defendant has the burden of proving that the plaintiff is a public
figure.”); Sullivan v. American Airlines, 26 Misc. 3d 1202(A) (N.Y. Sup. Ct. 2009) (“Whether a
3

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plaintiff is a public figure for purposes of a defamation action is . . . to be determined by the Court,
and on that question the defendant has the burden of proof.”) (citations omitted) (emphasis added),
aff’d in part and modified in part on other grounds, 80 A.D.3d 600 (N.Y. App. Div. 2d Dept.
2011). The “defendant must show” that plaintiff is a public figure, and libel defendants do not
meet that burden where they have “offered only conclusory statements that the Plaintiff is a public
figure and have failed to support these assertions.” Skakel v. Grace, 5 F. Supp. 3d 199, 212 (D.
Conn. 2014) (denying motion to dismiss).
As in Skakel, Defendant Donegan has offered only conclusory assertions that Plaintiff is a
public figure, with no support whatever. Her Memorandum’s discussion of this issue consists of
a single footnote in which she states that “Mr. Elliott has not mounted any serious challenge to our
repeated observation that he qualifies as a limited purpose public figure.” Def. Mem. at 6 n.4. She
omits to mention: (a) that she—not Mr. Elliott—bears the burden of pleading and proof on this
issue; (b) that an “observation” is not a proof; and (c) that Mr. Elliott was not required to introduce
any evidence of his not being a public figure, much less “mount[]” a “serious challenge” to a
showing that has not been made. Because Defendant has offered only “conclusory statements that
Plaintiff is a public figure” without any support, Skakel, 5 F. Supp. 3d at 212, her contention that
Plaintiff has not adequately pleaded actual malice is legally frivolous and should be rejected as a
matter of law.
Nor could Defendant have carried her burden of proof on this issue. To prove that Plaintiff
was a public figure, Defendant would have to show either that Plaintiff had “achieve[d] such
pervasive fame or notoriety that he [became] a public figure for all purposes and in all contexts,”
or that he was a so-called limited purpose public figure. Gertz v. Robert Welch, 418 U.S. 323, 351
(1974).

Crucially, Plaintiff must have been a public figure prior to the defamation.
4

See

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Hutchinson v. Proxmire, 433 U.S. 111, 135 (1979); Lluberes v. Uncommon Prods., 663 F.3d 6, 18
(1st Cir. 2011) (stating “the requirement that public-figure status—whether acquired for all
purposes and in all contexts or derived from a particular controversy—predate the alleged
defamation”) (emphasis added); Krauss, 251 A.D.2d at 192 (plaintiff must have been “a public
figure at the time the [defamation] was published”) (emphasis added).

Neither the unwanted

notoriety Plaintiff has suffered as a result of the List, nor his subsequent efforts to refute the
malicious charges against him, have any bearing on his public figure status. “[T]hose charged
with defamation cannot, by their own conduct, create their own defense by making the claimant a
public figure.” Hutchinson, 433 U.S. at 135.
No facts before this Court remotely suggest that Mr. Elliott was an all-purpose public figure
prior to the List’s publication. As stated in the Complaint, Mr. Elliott is a “private citizen,” not a
“celebrity.” Complaint ¶ 3. At the time of the libel, he was neither famous nor notorious. By no
stretch of the imagination had he attained a role of “pervasive involvement in the affairs of
society.” Gertz, 418 U.S. at 352. In Gertz, the Supreme Court held that a successful book author
who was also a prominent civil rights attorney was not an all-purpose public figure. Id. at 351.
Accordingly, Mr. Elliott cannot be one either.
Nor could Defendant prove that Mr. Elliott was a limited purpose public figure prior to the
List’s publication. “In the Second Circuit, to establish that a plaintiff is a limited-purpose public
figure, the defendant must show that a plaintiff . . . ‘voluntarily injected himself into a public
controversy related to the subject of the litigation’” and “‘assumed a position of prominence in
[that] controversy.’” Jang v. Trustees of St. Johnsbury Acad., 331 F. Supp. 3d 312, 338 (D. Vt.
2018) (citations omitted) (emphasis added). No facts before this Court remotely suggest that Mr.
Elliott had any involvement in any “public controversy related to the subject of [this] litigation,”
5

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much less that he had “assumed a position of prominence” therein, until after the List accused him
of rape. See, e.g., Broadspring, Inc. v. Congoo, LLC, 2014 U.S. Dist. Lexis 116070 at * 23-24
(S.D.N.Y. 2014) (plaintiff cannot be a public figure based on controversy arising out of
defendant’s own allegations).
Instead of trying to carry her burden of proof on any of these issues, Defendant argues that
the Complaint somehow concedes the public figure issue by “expressly addressing itself to an
actual malice pleading threshold.” Def. Mem. at 6 n.4. This absurd argument would not only
preclude defamation plaintiffs from prudently pleading actual malice on pain of waiving the public
figure issue; in addition, it forgets that a private figure defamation plaintiff must also prove actual
malice, in order to obtain punitive damages. Gertz, 418 U.S. at 350; see Complaint at p. 16
(seeking punitive damages).1
Defendant Donegan is apparently trying to capitalize on the fact that Mr. Elliott may now
be a public figure—now that she published outrageously false rape accusations against him,
destroying his livelihood, in an online document reported on by national news media, and now that
he has publicly refuted those charges. But Defendant “cannot, by [her] own conduct, create [her]
own defense by making the claimant a public figure.” Hutchinson, 433 U.S. at 135. Because

Defendant also asserts—without citation—that “at the pre-motion conference held on March 1, 2019,
[Plaintiff] all but conceded that the actual malice standard applies.” Id. Even were it true, this assertion
would be irrelevant: an “all but concession” is not a concession and would have no legal effect. But the
assertion is false. At that conference, the Court stated that the parties did not “seem” to be disputing the
public figure issue, adding that “as I read Defendant’s letter,” Plaintiff was arguing that the actual malice
standard was met. Tr. of Mar. 1, 2019 Conf. at 10-11 (emphasis added); See Declaration of Nicholas Lewis
(“Lewis Decl.”), June 6, 2019, Exh. A. Plaintiff’s counsel responded, “Yes, your Honor, we believe it’s—
the actual malice is certainly met here,” and the Court replied, “Let’s put that aside.” Id. at 11. No
concession of any kind was made. Plaintiff’s counsel merely stated that the actual malice standard was met
in this case, so that the public figure issue did not have to be reached. As the Court directed, the issue was
thereafter “put aside”—no further colloquy was had on it. Moreover, in correspondence to the Court (served
on Defendant), counsel explicitly reserved Mr. Elliott’s right to contest the public figure issue. Pltf. Ltr.
January 18, 2019, ECF Doc. 18 at 2, FN2; Pltf. Ltr. April 22, 2019, ECF Doc. 33 at 2, FN1; see Lewis
Decl., Exh. B.
1

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Defendant has not remotely proved that Plaintiff was a public figure at the time of the libel, her
motion to dismiss on actual malice grounds must be denied as a matter of law.
B.

Plaintiff Has Pleaded an Incontrovertible Case of Actual Malice
Under Clear, Controlling Supreme Court and Second Circuit Case Law.

Nevertheless, Plaintiff would welcome the Court reaching the issue of actual malice.
Defendant’s arguments on this point rely on an incorrect definition of reckless disregard for the
truth and an ostrich-like avoidance of facts pleaded in the Complaint.
1.

Standard of Review

Under Biro v. Condé Nast, 807 F.3d 541, 545 (2d Cir. 2015), a public figure defamation
plaintiff must “plead facts demonstrating that the claim of actual malice is plausible.” As always
in a motion to dismiss, the Court must “accept[] all factual allegations [in the complaint] as true
and draw[] all reasonable inferences in favor of the plaintiff.” Richards v. Direct Energy Servs.,
LLC, 915 F.3d 88, 105 (2d Cir. 2019). The plausibility standard “does not impose a probability
requirement,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); rather, it “asks for more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plaintiff has more than met that burden here.
2.

Reckless Disregard For The Truth Exists When Defendant
Had Serious Doubts As To Truth At The Time Of Publication.

“Actual malice” in defamation law includes “reckless disregard” for the truth, New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Biro, 807 F.2d at 544, which exists when the
defendant “entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson,
390 U.S. 727, 731 (1968) (emphasis added); Harte-Hanks Communications Inc. v. Connaughton,
491 U.S. 657, 667 (1989); Meloff v. New York Life Ins. Co., 240 F.3d 138, 146 (2d Cir. 2001).

7

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In her Memorandum of Law, Defendant Donegan repeatedly and misleadingly implies that
reckless disregard instead requires “‘a high degree of awareness’ of a statement’s ‘probable
falsity.’” Def. Mem. at 7, 11, 12 (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). This is
false. “[R]eckless disregard” is proven when the defendant either “made the publication with a
‘high degree of awareness of . . . probable falsity’ or . . . ‘entertained serious doubts as to the truth’
of his publication.” Harte-Hanks¸ 491 U.S. at 667 (emphasis added) (citations omitted); Meloff,
240 F.3d at 146 (“Constitutional malice requires either ‘a high degree of awareness of [the
statement’s] probable falsity’ or ‘serious doubts as to its truth.’”) (emphasis added) (citations
omitted). Defendant’s attempt to obfuscate this disjunctive—failing to clearly acknowledge that
the “serious doubt” test is an independent standard for establishing reckless disregard—is not
surprising, because Ms. Donegan has publicly admitted that she entertained serious doubt as to the
truth of the accusations on the List.
3.

Defendant Has Publicly Admitted That She Entertained
Serious Doubt As To The Truth of the List’s Accusations.

As stated earlier and pleaded in the Complaint, Defendant Donegan published an essay for
New York magazine in January 2018, taking credit for creating and circulating the List. Complaint
¶ 62. In that essay, as the Complaint states, Defendant Donegan wrote:
There were pitfalls. The document was indeed vulnerable to false accusations, a concern
I took seriously. I added a disclaimer to the top of the spreadsheet: “This document is only
a collection of misconduct allegations and rumors. Take everything with a grain of salt.”
Id. (quoting Moira Donegan, “I Started the Media Men List: My Name is Moira Donegan,” https://
www.thecut.com/2018/01/moira-donegan-i-started-the-media-men-list.html (emphasis added)).
In other words, Defendant has publicly admitted that at the time she published the List, she
knew perfectly well that the List was “vulnerable to false accusations” and that she was “seriously”
“concern[ed]” about such falsity.

She went so far as to add a “disclaimer” to the List
8

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acknowledging that some or all the accusations on the List were “only” “rumors”—and a rumor is
by definition a “currently circulating story or report of uncertain or doubtful truth.” Oxford
English Dictionaries, https://en.oxforddictionaries.com/definition/rumour (emphasis added).
Thus, this is the rare defamation case in which Defendant has already admitted, out of her
own mouth, that she “in fact entertained serious doubts as to the truth of [her] publication.” St.
Amant, 390 U.S. at 731. There is not a hair’s breadth between a “serious[]” “concern” about falsity
and a “serious doubt” as to truth. To say that a statement must be “taken with a grain of salt” is
precisely to express serious doubt as to its truth.

E.g., Cambridge Dictionary,

https://dictionary.cambridge.org/us/dictionary/english/take-something-with-a-grain-of-salt

(to

“take something with a grain of salt” means to “understand that something is likely to be untrue or
incorrect”) (emphasis added). And a person cannot believe that an accusation is “only” a “rumor”
without “entertain[ing] serious doubts” as to its veracity sufficient to constitute actual malice. See
Hale v Scott, 371 F.3d 917, 919 (7th Cir. 2004) (Posner, J.) (finding actual malice where defendant
published what he himself described as a “rumor” accusing plaintiff of sexual misconduct, and
holding that a libeler cannot escape liability by “label[ing]” the accusation “a ‘rumor’ the accuracy
of which the libeler declines to vouch for”); Lebeau v. Town of Spencer, 167 F. Supp. 2d 449, 456
(D. Mass. 2001) (denying defendants summary judgment because some of their defamatory
allegations were acknowledged to be mere “hearsay and uncorroborated rumor,” from which “a
reasonable jury could conclude that the allegations were published with actual knowledge of or
reckless disregard for their falsity”); Martin v. Wilson Pub. Co., 497 A.2d 322, 330 (R.I. 1985)
(holding that free speech and other privileges are “wholly inapplicable to [defamatory] rumors”
and “publication of such rumors makes the publisher responsible under the ‘actual malice’ test”)
(emphasis added).
9

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In her Memorandum, Defendant’s counsel struggles futilely to evade the plain meaning
and import of Donegan’s January 2018 admissions. The Memorandum argues that Donegan’s
admissions do not show “a high degree of awareness” of “probable falsity,” Def. Mem. at 11, but
this claim, as noted above, misrepresents the definition of reckless disregard, which under St.
Amant requires only serious doubts as to the truth, not awareness of probable falsity. The
Memorandum further claims Ms. Donegan is “overwhelmingly inclined to believe women when
they say they were sexually assaulted” and “presumptively believes women who say they were
raped.” Def. Mem. at 13. But assertions in a memorandum of law about what Defendant
“presumptively” believed are not facts; are not evidence of any kind before this Court; are not to
be taken as true on a motion to dismiss; and in any event contradict Defendant’s own admissions,
which concede that she did, in fact, entertain serious doubts as to the truth of the List’s accusations.
At the very most, the Memorandum’s claims about what Ms. Donegan believed raise disputed
issues of fact, thus not supporting her motion to dismiss, but rather requires its rejection.2

Defendant also suggests that Plaintiff must show that Ms. Donegan was highly aware that the List’s
accusations against Mr. Elliott “in particular” were probably false. Def. Mem. at 12 (emphasis added).
Once more, Defendant misstates the test for reckless disregard (awareness of probable falsity is not
required), but in addition misstates Plaintiff’s burden. Reckless disregard for truth is a state of mind;
Defendant had that state of mind if she published the List despite serious overall doubts as to the truth of
its accusations. See Harte-Hanks, 491 U.S. at 667 (reckless disregard exists if defendant “entertained
serious doubts as to the truth of his publication”) (emphasis added) (citation omitted). Indeed, her reckless
disregard for the truth would be especially clear in Mr. Elliott’s case if she had no information about him
“in particular,” because in that event, from her viewpoint, the List’s defamatory accusations against him
would have been among the mere “allegations and rumors” whose falsity she was so “seriously”
“concern[ed]” about that she warned readers to take them “with a grain of salt.” In any event, it is plainly
sufficient on this motion for Plaintiff to have pleaded reckless disregard by quoting Defendant’s own public
admission that she published the List as a whole with serious doubts as to its truth; discovery will shed
further light on what, if any, specific facts she knew about Mr. Elliott.
2

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4.

Defendant Additionally Acted With Reckless Disregard
By Publishing Wholly in Reliance on Unverified Anonymous
Sources Without Making Any Effort to Verify or Substantiate.

As the Supreme Court has stated, and as the Second Circuit has explicitly reaffirmed, a
plaintiff adequately pleads reckless disregard if the complaint avers “that the allegedly defamatory
statements were ‘based wholly on an unverified, anonymous’” source. Biro, 807 F.3d at 545
(quoting St. Amant, 390 U.S. at 732). Such is the case here.
The Complaint specifically pleads that, to the extent Defendant Donegan did not herself
fabricate or author the List’s libelous statements against Mr. Elliott, she published them wholly in
reliance on unverified, fully anonymous sources—sources whose identities were not only
unrevealed to readers of the List but unknown to Donegan herself. Complaint ¶ 66. There can be
no question as to the plausibility of this allegation. The List was deliberately designed to allow
individuals to post accusations with full anonymity of this kind; a header on the List expressly
instructed individuals on how to do so.3 Accordingly, Defendant’s motion to dismiss must be
rejected on this ground as well. See, e.g., Barreca v. Nickolas, 683 N.W.2d 111, 123 (Iowa 2004)
(denying summary judgment in a defamation case where defendant “published the allegation to
the public with no basis other than an anonymous and uncorroborated tip”).4

See Lewis Decl., Exh. C for portion of the List with Header in Row 1, Column C, instructing individuals
how to post accusations anonymously, from the List found at https://docs.google.com/spreadsheets/d/13

VMgNMqk1kG8Fr-1nHEu5fsJRumWxcACJthDqH26daI/edit#gid=0 .

Defendant quotes the non-precedential summary order in Cabello-Rondon v. Dow Jones & Co., 720 Fed.
Appx. 87, 89 (2d Cir. 2018), for the unquestioned proposition that “reliance on anonymous sources alone
does not support an inference that the publisher acted with actual malice.” Def. Mem. at 12. But Defendant
appears to be trying to mislead the Court into misinterpreting the word “alone” in that proposition. The
Cabello-Rondon Court plainly meant that reliance on anonymous sources does not in and of itself support
an inference of actual malice—as where defendant additionally relied on other information or investigated
the anonymous tip. Cabello-Rondon cannot mean that an accusation based wholly on an unverified,
uninvestigated anonymous source does not support an inference of actual malice; that proposition would
4

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5.

Plaintiff Has Also Adequately Pleaded Knowledge of Falsity.

Actual malice also exists when a defendant publishes a defamatory statement knowing it
to be false, and the Supreme Court observed in St. Amant that knowledge of falsity can be found
“where a story is fabricated by defendant.” 390 U.S. at 732. And as the Second Circuit stated in
Biro, a defamation plaintiff “may allege ‘a story [was] fabricated by the defendant’ if the defendant
provides no source for the allegedly defamatory statements.” Biro, 807 F.3d at 545 (quoting St.
Amant, 390 U.S. at 732). Plaintiff has satisfied this standard as well.
The Complaint specifically pleads that Defendant Donegan personally fabricated some or
all of the libelous accusations against Plaintiff contained in the List, including the statement
(communicated by highlighting his entry in red) that Plaintiff had been accused of sexual violence
by multiple women. Complaint ¶¶ 27, 59. As the Complaint further states, Defendant Donegan
has never provided any source for any of the accusations against Plaintiff, refusing direct requests
from Plaintiff to do so. Complaint ¶ 59. Thus under Biro, Plaintiff has adequately pleaded that
Defendant Donegan personally fabricated some or all of the accusations against Plaintiff.
In response, Defendant’s Memorandum of Law attempts to put yet further self-serving
factual assertions before the Court. The Memorandum states without any support that Mr. Elliott
was “a total stranger” to Ms. Donegan, and asks, “why would Ms. Donegan fabricate a lie about a
total stranger?” Def. Mem. at 8. It is simply not known at this point in the proceedings whether
Ms. Donegan knew Mr. Elliott, or knew of him, or had read his work, or knew individuals who
claimed to know something about him, at the time she published the List. And despite all the
improper, non-evidentiary factual assertions in Defendant’s Memorandum, the one fact she does

squarely contradict Biro and numerous other decisions, such as the just-cited Barecca v. Nickolas, as well
as the Supreme Court’s opinion in St. Amant, 390 U.S. at 372.
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not assert is a denial: nowhere in the Memorandum does she squarely state that she did not create
some or all of the List’s libelous allegations against Mr. Elliott. Instead, she artfully asks “why”
she would have done such a thing, without actually denying that she did it. This omission is
striking given the Memorandum’s propensity for asserting unsupported facts, and her suggestion
of improbability ignores the applicable standard of review. See Twombly, 550 U.S. at 556 (“a
well-pleaded complaint may proceed even if” the facts alleged appear “improbable”).5
Only discovery can shed further light on these issues. Under the Second Circuit’s clear
ruling in Biro, Plaintiff is more than entitled to such discovery.
6.

The Complaint Pleads Particularized Facts Showing That Defendant Acted
With Ill Will, Further Bolstering An Inference of Actual Malice.

Finally, Plaintiff has pleaded particularized facts showing that Defendant Donegan acted
with ill-will and animosity, which, while neither equivalent to actual malice nor required to prove
it, is admissible to bolster an inference of actual malice. E.g., Duffy v. Leading Edge Prods., 44
F.3d 308, n.10 (5th Cir. 1995) (“Although we recognize that proof of ill will or animosity is not
required to show actual malice, evidence of ulterior motive can often bolster an inference of actual
malice.”) (citation omitted).
As pleaded in the Complaint, between October, 2017 and July, 2018, Defendant Donegan
made several public statements on social media evincing animosity toward men, such as “The
problem is men,” and “I really hate men.” Complaint ¶ 31. Indeed, with specific reference to the

Defendant adds a hand-waving contention that by pleading allegations in the alternative, or by quoting
from Ms. Donegan’s January, 2018 essay, the Complaint somehow contains contradictory allegations,
forfeiting the right to be taken as true on this motion. Def. Mem. at 9. This argument barely deserves reply.
Alternative pleadings are of course expressly permitted, Fed. R. Civ. P. 8(d)(2)-(3), and Plaintiff is
undoubtedly entitled to quote particularly damaging admissions from Defendant’s 2018 essay without
somehow “incorporating” or assuming the truth of other statements made therein. If there are internal
contradictions in Ms. Donegan’s 2018 essay, that is a problem she has to answer for.
5

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List, Defendant Donegan stated “I like the witch hunt,” id., effectively admitting that she looked
forward to and took pleasure in the destructive effect that The List would have on the lives and
careers of the men who were the targets of The List’s unsubstantiated, anonymous accusations,
even if those men were falsely accused.
Thus the Complaint more than adequately pleads that Defendant entertained serious doubt
as to the truth of the List’s accusations, that she relied wholly on anonymous, unverified sources
without any investigation, that she personally fabricated accusations against Plaintiff, and that she
acted with animosity and ill-will. For all these reasons, Defendant’s motion to dismiss for failure
to plead actual malice must be denied.
POINT TWO
DEFENDANT HAS NOT ESTABLISHED AND CANNOT ESTABLISH
IMMUNITY UNDER SECTION 230 OF THE COMMUNICATIONS DECENCY ACT
Defendant Donegan also seeks dismissal under Section 230 of the federal Communications
Decency Act (“CDA”). Def. Mem. at 13-20. When it applies, Section 230 immunizes “interactive
computer service” providers like Google or Twitter from being held liable for unlawful content
posted by their users—content that the interactive service provider carried, but did not itself author,
create, develop, encourage, or otherwise materially contribute to. 47 U.S.C. § 230; FTC v.
LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016). Defendant has not remotely established
at this stage of the proceedings—and will not be able to establish, at any stage—that she is entitled
to immunity under the CDA.
A.

Defendant Grossly Misrepresents The Applicable Standard of Review.

Defendant argues that the Complaint “fails to establish that Ms. Donegan ‘created or
developed’” the List’s defamatory content—as if Plaintiff bore the burden of pleading as to her
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Section 230 immunity claim. Def. Mem. at 20 (emphasis added). According to Defendant, if the
Complaint does not conclusively refute Section 230 immunity, the Court should dismiss. See id.
at 15. Defendant has grossly misrepresented the applicable standard of review.
What Defendant leaves out is that Section 230 immunity is an affirmative defense, and as
such, Defendant—not Plaintiff—bears the burden of pleading and proof. E.g., Doe v. GTE Corp.,
347 F.3d 655, 657 (7th Cir. 2003) (holding that Section 230 immunity is an “affirmative defense”);
FTC v. LeanSpa, LLC, 920 F. Supp. 2d 270, 275 (D. Conn. 2013) (“Immunity under the CDA
constitutes an affirmative defense”); Doctor’s Assocs., Inc. . QIP Holders, LLC, 2007 U.S. Dist.
Lexis 28811 at * 2 (D. Conn. 2007) (“Section 230 immunity constitutes an affirmative defense”)
(citation omitted); Novak v. Overture Servs., Inc., 309 F. Supp. 2d 446, 452 (E.D.N.Y. 2004)
(same).
It is hornbook law that a plaintiff has no obligation to “anticipate” affirmative defenses in
his complaint or to allege facts refuting them. “The pleading requirements in the Federal Rules of
Civil Procedure . . . do not compel a litigant to anticipate potential affirmative defenses . . . and to
affirmatively plead facts in avoidance of such defenses.” Abbas v. Dixon, 480 F.3d 636, 640 (2d
Cir. 2007); see Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 490-91 (2d Cir. 2018)
(holding that “the burden of pleading and proving” an “affirmative defense” “lies with
defendants”); Spagnola v. Chubb Corp., 574 F.3d 64, 73 (2d Cir. 2009) (denying motion to dismiss
because plaintiff “was not required to preemptively plead facts refuting” affirmative defense);
Franze v. Bimbo Foods Bakeries Distrib., LLC, 2019 U.S. Dist. Lexis 43432 at * 13 (S.D.N.Y.
2019).
Accordingly, Rule 12(b)(6) motions to dismiss based on affirmative defenses are
“generally inappropriate.” Taylor v. City of Shreveport, 798 F.3d 276, 286 (5th Cir. 2015); see,
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e.g., Next Communications v. Viber Media, 2016 U.S. Dist. Lexis 43525 at * 22 (S.D.N.Y. 2016)
(“This argument, which is essentially an affirmative defense, is inappropriate on a motion to
dismiss.”); Claude v. Wells Fargo Home Mortgage, 2014 U.S. Dist. Lexis 112493 at * 49 (D.
Conn. 2014) (“this is an affirmative defense, which is inappropriate to consider on a motion to
dismiss”). Because “[i]mmunity under the CDA constitutes an affirmative defense,” a Section 230
immunity claim “‘is generally not foddered for a Rule 12(b)(6) motion.’” LeanSpa, 920 F. Supp.
2d at 275 (denying motion to dismiss) (quoting Doctors Associates, 2007 Dist. Lexis 28811 at *
20); Novak, 309 F. Supp. 2d at 452; Curran v. Amazon.com, Inc., 2008 U.S. Dist. 12479 at * 3334 (S.D. W. Va. 2008).
As courts have repeatedly held, motions to dismiss based on an affirmative defense must
be denied unless the affirmative defense is “unambiguously establish[ed],” “conclusively
establish[ed],” “clearly established,” or “unequivocally” established on “the face of the
complaint.” Hyson USA v. Hyson 2U, Ltd., 821 F.3d 935, (7th Cir. 2016) (denying motion to
dismiss because the allegations in the complaint did not “unambiguously establish” affirmative
defense); Banco Santander de P.R. v. Lopez-Stubbe, 324 F.3d 12, 16 (1st Cir. 2003) (affirmative
defense must be “conclusively establish[ed]” by the allegations in the complaint to warrant
dismissal); Romero v. Bestcare, Inc., 2017 U.S. Dist. Lexis 18786 at * (E.D.N.Y. 2017) (denying
motion to dismiss “because the face of the complaint does not clearly establish defendant’s right
to an affirmative defense”), adopted, 2017 U.S. Dist. Lexis 46760 (E.D.N.Y. 2017); SEC v.
Caledonian Bank Ltd., 145 F. Supp. 3d 290, 311 (S.D.N.Y. 2015) (denying 12(c) motion to dismiss
based on affirmative defense where pleadings were not “conclusive”); Henry v. Nannys for
Grannys Inc., 86 F. Supp. 3d 155, 159 (E.D.N.Y. 2015) (denying motion to dismiss based on

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affirmative defense where defense was not “unequivocally” demonstrated on the face of the
complaint). This standard is not remotely satisfied here.
B.

Far From Conclusively Establishing Immunity Under Section 230, The Allegations
in the Complaint Establish That Defendant Acted As An Information
Content Provider And Is Therefore Disqualified From Section 230 Immunity.

Section 230 of the CDA grants immunity to “interactive computer service” providers who
serve, as the Second Circuit has put it, as a “neutral intermediary” for others’ content; it does not
immunize “internet content providers.” 47 U.S.C. § 230(c); FTC v. LeadClick Media, LLC, 838
F.3d 158, 174 (2d Cir. 2016). The term “internet content provider” is defined—not narrowly, as
Defendant falsely claims, Def. Mem. at 15—but broadly, to include “any person or entity that is
responsible, in whole or in part, for the creation or development of information provided through
the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3) (emphasis added).
“This definition ‘cover[s] even those who are responsible for the development of content only in
part.’” LeadClick, 838 F.3d at 174 (emphasis added) (citation omitted).
An individual can act both as an interactive service provider and as a content provider at
the same time; if so immunity, is lost. As the Second Circuit has held, Section 230’s “grant of
immunity applies only if the interactive service provider is not also an ‘information content
provider’ of the content which gives rise to the underlying claim.” LeadClick, 838 F.3d at 174
(emphasis added).
Here, although Plaintiff was under no obligation to plead facts refuting Section 230
immunity, his allegations (taken as true) conclusively establish that Defendant Donegan was a
content provider with respect to Mr. Elliott’s entry on the List.6 The Complaint alleges that Ms.

Plaintiff does not concede that Section 230’s other requirements—for example, that Plaintiff’s claims
against Ms. Donegan necessarily treat her as a “publisher”—are satisfied, but because Defendant has plainly
6

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Donegan was personally responsible for posting some or all of the List’s libelous accusations
against Mr. Elliott, including the false and defamatory statement (communicated by highlighting
his entry in red) that he had been “accused of physical sexual violence by multiple women.”
Complaint ¶¶ 27, 59. There can be no dispute that these facts make Defendant a “content provider”
under Section 230, disqualifying her from immunity, and for this reason alone, Defendant’s motion
to dismiss must be denied.
Even Defendant does not seem to challenge this conclusion. See Def. Mem. at 13
(apparently conceding that her Section 230 argument does not apply to the extent that Ms. Donegan
personally created Mr. Elliott’s entry on the List). Nevertheless, Defendant seems to believe that
she can somehow resuscitate her Section 230 argument by asserting that Ms. Donegan’s
contributions to Plaintiff’s entry on the List merely repeated what others had already posted there.
Def. Mem. at 19-20.
But this assertion is far from evident “on the face of the complaint” and cannot be accepted
as true for purposes of this motion. For example, as just noted, the red highlighting indicated that
Plaintiff had been “accused of physical sexual violence by multiple women,” and this statement
was not communicated clearly by anything else in his entry. See Complaint ¶¶ 25, 27.7 In any
event, it simply isn’t known at this juncture whether Defendant was personally responsible for the
entirety of Plaintiff’s entry on the List, or if only for some portions of it, what those portions were

failed to establish that she was not a content provider, the Court need not reach Section 230’s other
requirements on this motion.
7
Elsewhere on Plaintiff’s entry, Defendant Donegan and/or one of the other Defendants wrote, “Multiple
women allege misconduct,” Complaint ¶ 25, but that is by no means equivalent to multiple accusations of
“physical sexual violence.” Plaintiff’s entry also included the phrase “rape accusations,” but rape is often
understood to include sex not involving physical violence (for example, sex with a person who is
intoxicated), and the term “rape accusations” could refer to just two accusations, whereas the word
“multiple” can be reasonably understood to mean “numerous” or many or “several” (i.e., more than two).
See, e.g., Oxford English Dictionaries, https://en.oxforddictionaries.com/definition/multiple.
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and what role she had in developing others’ contributions. Factual issues such as these are plainly
inappropriate in a motion to dismiss based on an affirmative defense. See Doctors’ Assocs., 2007
U.S. Dist. Lexis 28881 at * 7 (“taking the allegations in the Fourth Amended Complaint as true
for purposes of this motion, the court cannot, as a matter of law, state that ‘the plaintiff can prove
no set of facts in support of’ a finding of no immunity under the CDA. Instead, whether or not
[defendant] is an ‘information content provider’ is a question awaiting further discovery.”).
Defendant also suggests the possibility that when Ms. Donegan personally posted
Plaintiff’s entry on the List, she was merely typing in allegations she had heard from someone else.
Def. Mem. at 16. According to Defendant, if Ms. Donegan was merely “adding someone else’s
statements about Mr. Elliott into the Spreadsheet,” she would be immune under Section 230 and
entitled to dismissal. Id. This argument is baseless.
To begin with, it once again raises factual issues outside the scope of the pleadings. (Did
the alleged third party provide information to Ms. Donegan for use on the Internet, or did Ms.
Donegan simply hear a rumor about Mr. Elliott and choose to post that rumor on the List?8 Did
Ms. Donegan alter the supposed third party’s allegation in any material way?) As stated above, it
was not Plaintiff’s burden to answer such questions or plead allegations on these matters in his
Complaint. See, e.g,. Curran, 2008 U.S. Dist. Lexis at * 33-34 (denying motion to dismiss under
Section 230 because defendant “relies upon the absence of facts not pled in the complaint,” thereby

If the information was not provided to Ms. Donegan for use on the Internet, then Defendant would not
even arguably qualify for Section 230 immunity. See, e.g, Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir.
2003) (Section 230 immunity does not extend to information received from third parties if that information
was “not ‘provided’ for use on the Internet”) (quoting 47 U.S.C. § 230(f)(3)). Plaintiff does not concede
that Section 230 would immunize Ms. Donegan if the information was conveyed to her for use on the
Internet, but the Court need not reach that issue on this motion.
8

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“seek[ing] to place the onus on the plaintiff to plead around affirmative defenses, which it need
not do”).
More fundamentally, if Section 230 immunized individuals who create an interactive
Internet document and then personally post onto it unlawful content learned from a third party, the
results would be absurd. Suppose an individual wanted knowingly and unlawfully to publish a
false and malicious rumor about A that she had heard from B; or to disclose true but private facts
about C that she’d heard from D; or to publish a trade secret confided to her by E; or to identify
the real name of a covert agent revealed to her by F. These acts would all be unlawful, yet on
Defendant’s argument, she could do any of them and gain Section 230 immunity through the
simple expedient of creating an online interactive spreadsheet and then posting the unlawful
content herself. Nothing in the text of Section 230 remotely supports so absurd a conclusion. If
Defendant personally typed libelous statements against Plaintiff into the List, she was plainly the
content provider and cannot escape liability simply by asserting that she heard the allegations or
rumors from “someone else.”
Finally, even if Defendant Donegan did not personally enter any of the List’s libelous
statements against Mr. Elliott, she would still be disqualified from Section 230 immunity. As the
Second Circuit and other courts have stated, interactive computer service providers forfeit their
Section 230 immunity if through their website’s design, or through its headers, or through personal
communications with other people, or otherwise, they “specifically encourage[d]” the posting of
unlawful content. LeadClick, 838 F.3d at 174 (quoting FTC v. Accusearch Inc., 570 F.3d 1187,
1199 (10th Cir. 2009)); Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1171 (9th
Cir. 2008) (rejecting Section 230 immunity and distinguishing cases where “the website did
absolutely nothing to encourage the posting of defamatory content”) (emphasis added); MCW,
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Inc. v. Badbusinessbureau.com, LLC, 2004 U.S. Dist. Lexis 6678 at * 34 (N.D. Tex. 2004)
(denying motion to dismiss where plaintiff alleged that “defendants actively encourage” the
posting of defamatory content); NPS, LLC v. StubHub, Inc., 2009 Mass. Super. Lexis 97 (Mass.
Super. 2009) (denying StubHub summary judgment on Section 230 immunity grounds where
disputed issues of fact existed about StubHub’s “inducing or encouraging” users to post unlawful
content). “[D]efendants cannot disclaim responsibility for disparaging material that they actively
solicit.” Badbusinessbureau.com, 2004 U.S. Dist. Lexis 6678 at * 34. By “specifically
encourag[ing]” illegal content, a website provider “materially contribute[s]” to the “unlawfulness”
of the online material and becomes liable as a content provider under the CDA. LeadClick, 838
F.3d at 174 (quoting Roommates.com, 521 F.3d at 1168. Defendant Donegan did just that.
Publishing false, unverified and unsubstantiated “rumors” of defamatory sexual
misconduct is of course unlawful; it is, and has long been, libel per se. E.g., Hale v. Scott, 371
F.3d 917, 919 (7th Cir. 2004) (Posner, J.); Patmont v. Int’l Christian Missionary Ass’n, 142 Minn.
147, 149 (Minn. 1919) (“one cannot defend against a charge of libel by proving that he did no
more than circulate or repeat rumors libelous in character”) (collecting authorities). But as the
Complaint expressly alleges, Defendant Donegan specifically and actively “encouraged” people,
including the List’s recipients, to post on the List “rumors they had heard, even if they did not have
personal knowledge of the allegations.” Complaint ¶¶ 21, 22.
Indeed, as described above, Ms. Donegan put a statement on top of the List describing it
as “only a collection of allegations and rumors” that should be taken “with a grain of salt.” Id. ¶
62. This statement alone could reasonably have been interpreted by the List’s recipients as
encouraging them to post their own “rumors”; in other words, recipients could plausibly have
inferred from this statement that the List was intended to be a site not only for personal accounts
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and well-founded allegations, but for unsubstantiated rumors as well. (Nowhere did the List advise
users that they were only to post about their own experiences.) Further facts concerning what
kinds of content Defendant encouraged people to post on the List, and whether such
encouragement led to the libelous accusations against Plaintiff, will not be known until discovery;
under clear Second Circuit case law, Plaintiff was under no obligation to plead such facts in his
Complaint. See Spagnola, 574 F.3d at 73 (denying motion to dismiss because plaintiff “was not
required to preemptively plead facts refuting” affirmative defense).
Because Section 230 immunity is an affirmative defense, Defendant must establish that she
was not a “content provider” under the CDA. She has not done so on this motion and will not be
able to do so. This case differs radically from those in which a “website did absolutely nothing to
encourage the posting of defamatory content.” Roommates.com, 521 F.3d at 1171. Because Ms.
Donegan “specifically encourage[d]” the unlawful posting of defamatory, unsubstantiated rumors
on the List, she forfeited any Section 230 immunity she might otherwise have had. LeadClick,
838 F.3d at 174. Instead of serving merely as a “neutral intermediary,” Defendant Donegan
“materially contributed” to the “unlawfulness” of the List’s content and is therefore liable as an
information content provider. Id.
Conclusion
For the foregoing reasons, Plaintiff respectfully requests that Defendant Donegant’s
motion be denied in its entirety.
Dated: New York, New York
June 6, 2019

NESENOFF & MILTENBERG, LLP
/s/ Nicholas Lewis___________
Nicholas Lewis, Esq.

22