7:13am PT by Eriq Gardner
Gizmodo Says Ex-CNN Pundit Jason Miller's Defamation Suit Built on False Allegation
When former Donald Trump communications advisor Jason Miller filed a $100 million defamation lawsuit in October against Gizmodo after losing his job at CNN as a pundit upon a scandalous story about his alleged misbehavior towards a woman, the legal dispute appeared primed to address a provocative legal issue. Maybe not so fast.
Miller was accused by the woman of slipping her an "abortion pill" after impregnating her. According to Miller's complaint, the accusations aren't true and the story — "Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant With “Abortion Pill' — led to numerous other reports and was libelous. Importantly, Miller's attorneys assert that because the court filing was supposedly sealed, the defendants can't rely upon the typical immunities afforded to fair and accurate reporting of judicial documents.
"The fair reporting privilege affords no protection to journalists who publish defamatory statements from sealed court documents," states the complaint. "The rationale for this is simple: It is illogical to hold that a defendant has the right to publish to millions of readers information which not one of those readers could personally obtain because the public has no right to see sealed court filings. A publisher does not have the right to spread false contents of sealed court papers to the public."
That position is hardly a given, but at least it seemed to set up a courtroom debate that could establish some precedence.
Now, however, Gizmodo has filed a motion to dismiss that argues the premise from Miller and his attorneys is all wrong. At the center of the tale is A.J. Delgado, another ex-Trump staffer who had an affair with Miller, had a child with him, and got into a nasty and public custody fight with him. She was the one who put the Jane Doe's abortion story in court documents, and according to Miller, coordinated with members of the press so that her salacious filings would get coverage.
But was the court fling from Delgado actually sealed?
"[T]his allegation is false; no order exists sealing Delgado’s filing at issue; nor does Miller’s Complaint identify one," states Gizmodo's motion to dismiss filed Thursday in Florida federal court. "On two separate occasions, Defendants have obtained copies of the so-called 'sealed' filing directly from the family court. Put simply, absent a sealing order, the Article was nothing more than a straightforward report on a public record."
Going up against Miller's attorneys, who represented Hulk Hogan against Gizmodo's predecessor Gawker in the high-profile case over a sex tape, Elizabeth McNamara and other lawyers for the defendants explain that after Delgado made a public filing in September 2017 in the family court, Miller brought a motion to determine confidentiality. Gizmodo cites Florida procedural rules that this "does not act to retroactively or permanently seal" the filing at issue and only amounts to guidance to the court clerk to keep a document "confidential" pending a hearing. And after Miller moved for confidentiality, Delgado opposed a motion to seal on grounds that the information was already in the public domain.
"To this day, no court order grants Miller’s Motion to Seal, meaning that the Supplement cannot properly be considered sealed under the Rules of Judicial Administration," continues Gizmodo's brief.
The full memorandum in support of dismissal (read here) argues this is a "simple case" where the publication of a story about Miller was privileged and non-actionable and that further his invasion of privacy claim fails because the law requires that the alleged private facts be truthful, which obviously, Miller disputes.