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Elliott v. Donegan

Libel Action Is Denied Dismissal But Immunity Under CDA Is Possible 'Gating' Issue

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MEMORANDUM AND ORDER   Plaintiff Stephen Elliott brings the instant action against Defendants Moira Donegan and Jane Does 1-30, alleging defamation of character by libel. Defendant Donegan moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff’s second amended complaint. BACKGROUND1 Plaintiff is an author and content creator. (Sec. Am. Compl. (“SAC”),

15, 50, ECF No 37.) Throughout his career, he has published dozens of articles and opinion pieces, personal essays, and books, including a memoir entitled The Adderall Diaries.2 (Reply Mem. L. Supp. Def. Mot. Dismiss SAC (“Def.’s Reply”) Appendix 12-21, ECF No. 45 (compiling a list of books and articles written by and about Plaintiff).) His written work — both fictional and non-fictional — includes graphic and violent descriptions of sex,3 often BDSM.4 Plaintiff describes instances of rape, including recounting his own experiences as a victim of child abuse and sexual assault.5 He writes about rape fantasies.6 His fictional work and non-fictional memoirs include characters who have survived sexual assault.7 He has questioned the consensual nature of sex scenes, referring to one as “certainly border[ing] on rape.”8 As Plaintiff has acknowledged, some of his work is “very dark,” and not palatable to all audiences.9 On or about October 11, 2017, Plaintiff’s name was published on a shared Google spreadsheet entitled “Shitty Media Men,” (the “List”). (SAC

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