Last week, news broke that writer Stephen Elliott is suing Moira Donegan, the creator of the Shitty Media Men List, for libel and emotional distress. Elliott — whose entry read “rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” — is seeking $1.5 million in damages. He’s also looking to subpoena the Google metadata for the list to learn the identities of all the women who anonymously contributed to the spreadsheet, inspiring fear at the potential for exposure.
Elliott, who is based in New Orleans, is being represented by New York City lawyer Andrew Miltenberg. Miltenberg, a partner at Nesenoff & Miltenberg LLP, has become known as the go-to lawyer for young men who have been accused of campus sexual assault. (His most prominent case was defending Paul Nungesser, the student accused of sexually assaulting Columbia classmate Emma Sulkowicz in 2012.) In 2015, Miltenberg told the Cut he viewed his work as serving “someone who is accused who’s in a process that’s unfair and without a guide or advocate.” When it comes to this case, it’s clear that he has a similar strong ideological affinity for defending Elliott.
When I asked Miltenberg why Elliott’s story spoke to him in particular, he first brought up Brett Kavanaugh’s recent sexual-assault hearing. “The more that this whole national debacle played out on television with Judge Kavanaugh, it made me realize that this isn’t a man versus woman issue. This is really an issue of the internet being a place where allegations of rape or sexual assault are not allegations. They’re actually just taken immediately as true,” he explained. “There’s no real ability to test it or challenge what’s being said about you, so it becomes a very dangerous place and I think it’s a very slippery slope for all of us if you can be assassinated completely on the internet.” (Kavanaugh, as you may recall, was still confirmed to the Supreme Court.)
A follow-up email from Miltenberg took on an even more urgent tone, opening with the famous “First they came for me” poem — which is about apathetic bystanders in Nazi Germany — by Pastor Martin Niemoller. “Today, the issue is sexual assault, once we allow specific issues to erode equity, tomorrow the issue will be something else that allows a compromise of transparency and equity,” the email continued. “There is an entire generation of Americans that has no real, tangible connection to the men and women who fought and died for a free world, a whole generation that did not live through The Killing Fields, that have not seen an elderly person with a concentration camp tattoos, that knows nothing of ethnic cleansing, of Pol Pot, of the Gulags, of the House Un-American Hearings and blacklists … these are the things that we must guard against. There should be no iron curtain behind which dark and sinister plots are carried out. The light must be shed on all of these issues, as soon as they happen, if we are to stay safe and free.”
Miltenberg walked that back slightly when I called to ask him about it, saying that he didn’t want to “suggest that any of what’s going on in this country right now is as horrifically tragic.” He also called the #MeToo movement “extremely important” and “productive and constructive,” denying that it was at odds with the law that he practices; he was also quick to distance himself from the men’s-right’s movement. Miltenberg wanted to emphasize that, to him, this was not a case about sexual assault but about transparency and due process, which led him to once again turn the conversation back to history: “Maybe I’m overdramatizing it, but I remember growing up and a whisper could send somebody to jail in East Germany or in Poland or in the USSR, to the bottom basement of a building where they’d never get out of.”
I had first reached out to Miltenberg in an attempt to determine who is paying for Elliott’s lawsuit. There have been numerous questions about the suit’s funding and speculation over whether a wealthy benefactor with an insidious agenda is behind this, à la Peter Thiel funding the Hulk Hogan lawsuit that ultimately brought Gawker down. Miltenberg told me that no outside party is funding the suit, but declined to reveal if he was providing his services to Elliott pro bono or at a discounted rate. (He said it would put him “at a tactical disadvantage with opposing counsel.”) However, when presented with the possibility that Elliott was paying for the suit himself, Miltenberg was quick to correct: “I didn’t say that.” I reached out to Elliott multiple times and did not hear back.
Katherine Franke, the director of Columbia Law School’s Center for Gender and Sexuality, says the case likely won’t hold up in court. “I think what he’s doing here is trying to intimidate complainants of sexual assault and harassment by getting the jump on them and suing them when there’s no valid legal claim,” she explained. “There’s a very high bar in order to make out a libel lawsuit and the aggression with which the suit that he’s bringing seems to be permeated with, to me, shows that this is of effort to intimidate complainants rather than to actually gain a legal remedy.” Robbie Kaplan, Moira Donegan’s lawyer, has also said as much.
Franke also pointed out that, at the very least, this suit has drawn attention to Miltenberg: “Sometimes the lawyers have as much interest in getting their names in the paper as do the clients.”