5:09pm PT by Ashley Cullins
Lack of Florida Twitter Following Helps Writer Dodge Jason Miller Defamation Suit
Defamation via tweet is becoming a common claim in the digital age, but former CNN commentator and Donald Trump staffer Jason Miller's suit against a Brooklyn-based podcaster has been dismissed by a Florida federal judge — in part because of the scarcity of his followers in the sunshine state.
Miller in October sued Gizmodo Media for $100 million, claiming a story on one of its sites permanently scarred his reputation. The Sept. 21, 2018, Splinter story said he'd been accused of slipping a woman the "abortion pill" after impregnating her, a claim attributed to a filing in a family court fight with fellow former Trump staffer A.J. Delgado.
Miller's suit also targets Splinter managing editor Katherine Krueger, whose relationship with writer and political comedy podcast host Will Menaker prompted an additional claim. The day after the complaint was filed, Menaker tweeted, “Rat-faced baby-killer and Trump PR homunculus, Jason Miller, is suing my girlfriend for $100 million, cool!” Miller then amended his complaint with a defamation per se claim against Menaker.
In January, Menaker asked U.S. District Judge Cecilia Altonaga to dismiss the claim, in part, because of his limited contact with the state of Florida. His attorney Charles Tobin argued that Menaker lives in Brooklyn and hadn't visited Florida in more than a decade.
Miller's attorney Shane Vogt pushed back, arguing that the tweet was in reference to an article about a filing made in Miami-Dade family court, Miller does business there, and his son lives in the state.
Altonaga first explains the standards related to Florida's statute concerning specific personal jurisdiction over a nonresident defendant. "In Florida, a nonresident defendant 'commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.'"
In support of Miller's arguments, Vogt hired consultant Erik Zimmerman to analyze Menaker's Twitter following and show that users in Florida accessed the tweet.
But Altonaga sided with Menaker, finding Miller failed to allege harm in Florida. She notes the Florida Supreme Court hasn't addressed whether the state's long-arm statute confers jurisdiction over a nonresident who made statements online that were accessed by third parties in Florida and declines to resolve the "unsettled" question. Ultimately, though, she felt she didn't need to.
"Even if the Court considered Plaintiff’s new allegations, and ultimately determined Florida’s long-arm statute reached Menaker’s conduct here, Plaintiff cannot satisfy his burden under the 'more restrictive' Due Process Clause," writes Altonaga.
She found Miller met the first required prong by showing the claims arise out of Menaker's Twitter post, which was accessible to Florida Twitter users, but there's no evidence Menaker had reason to believe the "brunt" of the injury would be felt in Florida or that his connection with the state meets the traditional minimum contacts test and therefore failed to meet the second and third prongs.
"While the subject matter of the tweet here is a Florida lawsuit, the allegations and jurisdictional discovery reveal only two-tenths of one percent of Menaker’s Twitter followers are in Florida," writes Altonaga. "Plaintiff does not live or work in Florida; and Menaker did not contact Florida sources about the Twitter post. While Plaintiff alleges his appearance on Fox News Sunday was canceled, he lost his job at CNN, and his job at Teneo remains in serious jeopardy, he does not allege any of these harms was suffered in Florida."
She continues, "[C]ourts have uniformly rejected the argument that a tweet, not specifically directed to a forum state, is a sufficient minimum contact to confer personal jurisdiction under the Due Process Clause. … Given due consideration to all the relevant factors, the Court concludes 'Florida has little interest in adjudicating th[e] action [against Menaker] because no party resides in this state, and very few' of Menaker’s Twitter followers are in Florida."
Altonaga dismissed the motion without prejudice, so Miller could give the complaint another shot in Florida or elsewhere.
Read the full order below.