Gizmodo Can't Dodge Jason Miller Defamation Claim Over "Abortion Pill" Story

The court finds Miller has plausibly alleged the story wasn't a fair and true report of the underlying legal filing.
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Jason Miller

Misleading attribution is enough for a court to allow former CNN pundit and Donald Trump staffer Jason Miller's defamation lawsuit against Gizmodo to proceed.

Miller in October sued Gizmodo Media and others over a Sept. 21, 2018, Splinter.com story that said he slipped a woman the "abortion pill" in a smoothie after impregnating her. The story was based on a sealed filing in his family court fight with fellow former Trump staffer A.J. Delgado.

Defendants argued the article is protected by fair report privileges under Florida and New York law, and by a federal constitutional privilege for accurate reports of judicial proceedings. They also asked the court to toss all of the non-defamation claims, arguing they're duplicative.

This is the claim that U.S. District Judge Celcilia Altonaga finds misleading: “'[T]he 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.'” 

While the sealed filing does state the woman said Miller visited her apartment with a smoothie, according to Altonaga's order it does not attribute any other allegations to her.

"In other words, the Supplement, unlike the Article, does not state Jane Doe 'claims' Plaintiff gave her an abortion pill without her knowledge, deceptively terminating her pregnancy and causing her injury," writes Altonaga.

"By reading the Supplement, the average reader may conclude that Delgado, relying on indirect sources, and in the context of a contested paternity action, has accused Plaintiff of misconduct," continues the judge. "By reading the Article, the average reader may conclude Jane Doe –– the alleged victim herself –– has accused Plaintiff of misconduct. As the latter reading tenably bolsters the credibility of the allegations in the Supplement, the Court cannot conclude the Article does not produce a different effect on a reader than would a report on the Supplement."

Altonaga therefore finds that fair report privileges don't protect the defendants here because Miller has plausibly alleged that the story wasn't a fair and true report of the underlying legal filing.

The court on Wednesday dismissed Miller's claims for intentional infliction of emotional distress, invasion of privacy, civil conspiracy and tortious interference with advantageous business relationships, agreeing with defendants that they are duplicative of his defamation claim. 

Read the full opinion below.