5:56am PT by Eriq Gardner
Gizmodo Beats Jason Miller Defamation Lawsuit Over "Abortion Pill" Story
Gizmodo Media Group has prevailed in a defamation lawsuit brought by Jason Miller, a former communication staffer for Donald Trump who became a CNN commentator until a Sept. 21, 2018, story on Splinter.com went viral and caused him to lose his gig. The story in question was headlined, "Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant With ‘Abortion Pill,’” and the article by Katherine Krueger was based on a filing in Miller's family court fight with A.J. Delgado, another Trump staffer with whom Miller had an affair and fathered a child.
In some ways, Miller v. Gizmodo represented a sequel to the sex tape lawsuit brought by Hulk Hogan that had brought down Gawker Media, Gizmodo's predecessor. Miller hired one of the law firms (Bajo Cuva Cohen and Turkel) that represented Hogan, and like the prior battle, here was a tort claim pursued in Florida. He claimed $100 million in damages, a target that held the possibility of ruin for Gizmodo, which has been in the midst of its own internal battles of late.
But Miller's suit was important in its own right because it tested some ambiguity in the law with respect to New York's fair report privilege, which impedes civil actions over any publication of a fair and true report of a judicial proceeding. In particular, Miller argued that because the accusation originated from a sealed family court filing, the article was outside the bounds of immunity.
In granting summary judgment to Gizmodo, U.S. District Court Judge Cecilia Altonago shoots down Miller's contention.
"Under a long line of New York cases ... New York’s fair report privilege generally applies to sealed documents," writes the judge, further rejecting Miller's secondary argument that prior cases had carved out exceptions.
Altonago says there were exceptions under a section of New York's Domestic Relations Law, but such law has since been repealed and replaced, and moreover, doesn't apply to a custody proceeding in Florida. In a footnote, the judge also adds that privilege would also likely apply to a fair report because Miller is a public figure and media coverage of his affair and custody dispute is about a matter of public concern.
That doesn't end the analysis, because there still is the question of whether Krueger's article was truly a fair and true report of a judicial proceeding. At the earlier motion to dismiss phase, the judge concluded there was a plausible case that the article wasn't fair and true based on sloppy attribution.
But this time, under tighter standards where the court measures what's substantially true and focuses on whether there's conduct alleged beyond what was suggested in court filings, Miller can't carry his burden.
The court filing in question stated that Delgado had been informed that Miller had an affair with a "Jane Doe"; that this other woman became pregnant; that shortly thereafter, Miller visited the woman's apartment with a smoothie; and that unbeknownst to Jane Doe, the smoothie contained an abortion pill, which induced an abortion.
Krueger's article reads, in part, "Additionally, the court documents claim, when the woman found out she was pregnant, Miller surreptitiously dosed her with an abortion pill without her knowledge, leading, the woman claims, to the pregnancy’s termination and nearly her death.”
Miller pushed the proposition that the article was misleading because the accusations were attributed to the "Jane Doe" rather than Delgado.
The judge says it's nevertheless a substantially true and fair report of the judicial proceeding, based on a court document that included word of what the "Jane Doe" had told a journalist, while adding that the evidence "tends to show neither Krueger nor her editors intended to augment the credibility of the accusations in the Supplement by attributing them to Jane Doe herself, rather than to Delgado."
The summary judgment opinion also rejects Miller's alternative paths towards showing the Splinter article wasn't true and fair. That Krueger wrote the court filing was from "Delgado's legal team" rather than Delgado herself didn't confer it "greater legitimacy" because doing so "does not alter the overall effect of the Article." That Splinter "obtained" the court filing and confirmed its "authenticity" didn't render the article inaccurate, either. And that Krueger omitted facts from the court filing that may have cast doubt on the allegations isn't material because, as Judge Altonago points out, there is no requirement that a publication report the plaintiff's side of the controversy.
"Instead, the undisputed material facts show the Article 'essentially summarize[s] or restate[s] the allegations' in the Supplement," concludes the opinion. "Accordingly, the Article falls within section 74’s absolute privilege and Defendants have shown they are entitled to a summary judgment on their New York fair report privilege affirmative defense."
Gizmodo was represented by a Davis Wright Tremaine team of Katherine Bolger, Elizabeth McNamara, Abigail Everdell and Jamie Raghu. Acting as co-counsel was Deanna Shullman of Shullman Fugate.
A spokesperson for Gizmodo Media said, "We are gratified by the judge’s ruling which recognizes that our reporters were simply doing their jobs and that they are protected by the law."