On Monday, renowned attorney and Time’s Up legal-defense fund co-founder Robbie Kaplan announced that she’d be representing Shitty Media Men spreadsheet creator Moira Donegan in her defense against writer Stephen Elliott, who is suing Donegan for defamation after his name appeared on the list next to various anonymous accusations of sexual misconduct. Kaplan has a long history of defending women and fighting for free speech. She argued on behalf of Edith Windsor at the Supreme Court in a landmark decision that ruled the Defense of Marriage Act violated the Constitution, and she’s also faced Elliott’s lawyer Andrew Miltenberg before. Kaplan first met Miltenberg when she defended Columbia University in a case he brought on behalf of student Paul Nungesser, in which he claimed that the school should have stopped Emma Sulkowicz, who’d accused him of rape, from carrying her mattress around campus in protest (his complaint was dismissed). Kaplan says she expects Elliott’s suit will meet a similar fate. Still, she’s keenly aware of the case’s significance in another respect: as an attempt to silence women. That, she says, is the real issue at stake. Here, she talks about what she thinks Elliott’s real motives are, what it’s like facing Miltenberg in the courtroom, and what she’d like to tell women who participated in the list.
What do you think makes the spreadsheet such a lightning rod?
What makes the list such a lightning rod is the same thing that makes #MeToo one. For centuries women have experienced harassment and abuse at the hands of men. And for the most part, they stayed quiet about it. This conspiracy of silence is now being ripped open.
And what drew you to the case and Moira specifically?
The Time’s Up legal defense fund was created in part to deal with the kind of case Ms. Donegan is now dealing with. We knew from day one that women were going to have to defend themselves for speaking up, and expected more women, like Melanie Kohler who wrote about Brett Ratner on Facebook, were going to be sued for defamation. We knew that the power of the #MeToo movement came from the act of speaking up, so we wanted to make sure that they were protected.
What is this case about?
Fundamentally the motivation behind the list was to protect women. To put women on notice so if you had to deal with one of those men — or even worse they were your boss — you would be really careful. And I think Ms. Donegan felt very strongly that kind of speech should be protected under the law and that women should have the freedom to continue to speak out.
There have been networks of women who’ve talked about harassment for many many years. I certainly heard rumors in the various parts of my career about men to stay away from. It was always by word of mouth and very hush-hush, almost exclusively out of a fear of retaliation. The spreadsheet is just the contemporary manifestation of that.
How will free speech laws factor into this case?
The New York State Constitution affords greater protection than the federal Constitution for free speech. So what that means is that it’s very hard to bring a claim of defamation and succeed in New York, and it’s particularly hard when the plaintiff is someone who has put himself in the public sphere. It’s not like Mr. Elliot is some quiet person who no one knows. He is a writer who has publicly published and an enormous amount of it is about his life and about his sex life.
You’ve said before that you don’t think this suit is about defamation at all. What do you mean by that?
By stating that he intended to subpoena [the names of every woman who participated in the spreadsheet to include in his suit], it shows he doesn’t really believe that my client put Mr. Elliot’s name on the list. And she didn’t. So he has no defamation claim against Ms. Donegan.
I also don’t think he thinks my client is sitting on hedge fund cash. She’s not. He doesn’t have any reasonable expectation of getting any money from her. And then on top of all of that, you have these very, very high standards in New York to succeed with a claim of defamation. So if you put those things together I think you have to come to the conclusion that the point of the case is not actually to succeed against my client, or maybe not even to go forward with the case at all, but to file it to send a strong message to other women that if you do this you will be sued.
And why do you think he wants to send that message?
I can’t speak for him, but I read enough to discern that there is a strong feeling out there on the part of of certain men, that … well, you heard it from President Trump, that’s it’s a scary time for men in the United States today. My sense is it comes out of that, although, again, I wouldn’t want to put words in anyone’s mouth — much less my adversary’s mouth.
You’ve met Andrew Miltenberg before. What is he like to face in the courtroom?
We have a good professional relationship. I’ve faced him before. The first time was when he represented Paul Nungesser, who brought a complaint against Columbia University, essentially arguing that Columbia should have stopped Emma Sulkowicz from carrying the mattress around campus. That case also had a significant free-speech element. And we succeeded in winning two motions to dismiss in that case.
And in terms of next steps for this case, what’s the next thing that’s going to happen here?
I assume that we will hear from the judge and I think you can expect what’s called a motion to dismiss from our side, in which we’ll seek to dismiss all the claims right off the outset. Even if you accept all his facts as true there’s still no claim against our client in this case, no viable legal claim.
Per his complaint, do you think he will succeed in his subpoena to get the data on the other women in the list?
I don’t think the case will obligate that. I think they will get the complaint dismissed before it gets to that point.
What would you say to any of the women who are very scared, who maybe contributed to the list or who are watching this and feeling like “Holy shit”?
I would tell them that we have your back. Don’t be scared. Time’s Up has your back, and if you feel scared, get in touch with us.