On Eve of Trial, Gizmodo Wins Dismissal of Ex-Trump Staffer’s Libel Suit – Fair-Report Privilege Bars Claims

DWT Media Law February 28, 2020 Comments Off on On Eve of Trial, Gizmodo Wins Dismissal of Ex-Trump Staffer’s Libel Suit – Fair-Report Privilege Bars Claims
On Eve of Trial, Gizmodo Wins Dismissal of Ex-Trump Staffer’s Libel Suit – Fair-Report Privilege Bars Claims

BY ABIGAIL B. EVERDELL

In the fall of 2018, former communications head for President Donald Trump’s campaign, Jason Miller, filed a defamation claim in the U.S. District Court for the Southern District of Florida against Gizmodo Media Group LLC, publisher of the news and politics blog Splinter, and its managing editor, Katherine Krueger. Miller’s claims arose from an article authored by Krueger with the headline “Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant With ‘Abortion Pill.'”

Nearly a year later, and just one week before the scheduled trial, U.S. District Judge Cecilia M. Altonaga granted summary judgment to Gizmodo and Krueger on the basis of New York’s fair-report privilege. The court clarified that the statute, Section 74 of the Civil Rights Law, applies to sealed court documents (with one narrow exception not applicable in this case) and reaffirmed that the privilege’s “fair and true” standard must be applied liberally. Miller v. Gizmodo Media Group, 407 F. Supp. 3d 1300 (S.D. Fla. 2019).

Background

The Splinter article reported on the contents of a court filing by another former Trump campaign staffer, A.J. Delgado. Miller and Delgado had had an extramarital affair while both were working on the campaign, and Delgado became pregnant. When news of the affair emerged in late 2016, Miller was forced to step down from his position as White House communications director. He later initiated a custody proceeding against Delgado in Miami- Dade County Family Court.

On Sept. 14, 2018, Delgado alleged in a filing in the custody proceeding that in 2012, Miller had begun an extramarital affair with an exotic dancer in Florida. The filing alleged that the woman became pregnant and that Miller dosed her with an abortion pill,  erminating the pregnancy and leading to the woman’s hospitalization.

Delgado further alleged that she had initially learned this information secondhand, but that she had shared it with a “renowned journalist” (later revealed to be Yashar Ali) who looked into and ultimately confirmed the allegations with the exotic dancer.

Three days after Delgado’s filing, Miller sought to seal it. Although the court never ruled on his motion to seal, Miller argued that under local court rules, the filing was functionally “sealed” from the public while the motion remains pending.

Krueger obtained a copy of the filing from a source on Sept. 21, 2018, and Splinter published an article reporting on it later that evening. The article was a straightforward report on the contents of the filing and embedded a full copy of the filing for readers to review.

The Lawsuit’s Progression

Miller initially brought claims for defamation, tortious interference, intentional infliction of emotional distress, invasion of privacy, and conspiracy against Gizmodo and Krueger. He subsequently amended his complaint to add a defamation claim against Will Menaker, a political podcaster and Krueger’s partner, arising from a tweet in which Menaker complained of how “[r]at-faced baby-killer” Miller had filed a $100 million lawsuit against his girlfriend. Menaker filed a motion to dismiss for lack of personal jurisdiction, which was granted in part due to the relatively small Florida audience of his otherwise popular podcast.

The Gizmodo defendants filed a motion to dismiss Miller’s claims under Rule 12(b) (6). The court held that New York state law applies to the claim, since the article was reported and published in New York, and Miller was a Virginia resident, giving Florida only minimal interest in applying its own law. The court also dismissed all Miller’s claims other than his defamation claim, holding that they were duplicative of the defamation claim.

On the defamation claim, Miller argued that Gizmodo’s report on the filing was not privileged because, in his view, the filing was functionally sealed when the article was published. Miller cited the New York Court of Appeals’ decision in Shiles v. News Syndicate Co., 27 N.Y.2d  9 (1970), which held that the Section 74 fair-report privilege does not apply to reports on court filings in matrimonial proceedings that fell under an  automatic sealing provision of New York law, arguing that Shiles should be read as excluding from Section 74 any sealed filings in domestic proceedings.

Miller also claimed that even if the fair-report privilege did apply, the article was not “fair and true” since the lede stated that “the woman claims” Miller’s actions led to her hospitalization, suggesting, Miller alleged, that the woman had confirmed the allegations directly rather than secondhand to a journalist.

The Gizmodo defendants argued that the Shiles exception only applies to a narrow circumstance involving court filings in matrimonial proceedings sealed by operation of New York’s Domestic Relations Law and does not apply to filings in otherwise public, out-of-state proceedings. They also argued that the article was fair and true, with any alleged inaccuracies being immaterial.

In its April 24, 2019, decision on the Gizmodo defendants’ motion to dismiss, the court declined to rule on the applicability of Shiles and instead held that Miller had plausibly alleged that the article was not “fair and true.” The court stated that this phrase “plausibly bolsters the allegations’ validity” in a manner that could produce a “‘different effect’ on the mind of the average reader than would a reading of the [filing].”

The Gizmodo defendants moved for reconsideration, arguing that the New York Court of Appeals’ seminal decision in Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63 (1979), sets out a liberal and flexible “fair and true” standard, which the article easily satisfied. The court denied the motion, noting that Holy Spirit was decided on summary judgment, not a motion to dismiss.

Following discovery, Gizmodo and Krueger moved for summary judgment. They renewed their arguments and also argued that Miller had failed to find any evidence of actual malice. The motion further argued that the article did not assert false statements of fact about Miller since it only reported accurately on claims made against him in a court filing, without adopting those claims as true. Miller filed a cross-motion for partial summary judgment on falsity.

The Summary Judgment Decision

The court’s decision on summary judgment rested entirely on New York’s fair-report privilege.

First, and most critically, the court found that the Shiles exception did not apply to the filing, holding that “Shiles sets forth a limited exception to the fair-report privilege, applicable only to materials sealed under section 235(1) of New York’s Domestic Relations Law.” Id. at 1309. And, since the filing was in Miami-Dade Family Court, which “is not governed by section 235(1) of New York’s Domestic Relations Law … [,] Shiles does not bar Defendants from defensively asserting a privilege under section 74.” Id. at 1310.

In so interpreting Shiles, the court acknowledged that, “[u]nder a long line of New York cases … New York’s fair report privilege generally applies to sealed documents.” Id. at 1309. Thus, Judge Altonaga’s ruling draws a bright line through what had been a gray area in New York’s Section 74 jurisprudence, firmly cabining Shiles in a way numerous courts had previously suggested but not explicitly held.

The decision stands with the 2nd Circuit’s decision in Zappin v. NYP Holdings Inc., 769 F. App’x 5 (2d Cir. 2019), as another example of how Shiles should be read narrowly, notwithstanding the Shiles’ decision’s relatively broad policy discussion.

Second, the court determined that the Splinter article was a fair and true report of the filing, examining and rejecting each of the inaccuracies and omissions alleged by Miller. The court explained its earlier denial of the Gizmodo defendants’ motion to dismiss as follows:

“[T]he Dismissal Order did not decide the phrase ‘the woman claims’ renders the Article misleading. The Court found only that, at the motion-to-dismiss stage, Plaintiff’s allegations stated a plausible claim of defamation; that is, the Court could not conclude the Article did not produce a different effect on the average reader than would a report on the Supplement. Summary judgment presents a higher bar. Id. at 1311.”

The court then reevaluated the article and concluded that it was, in fact, “a substantially accurate report on the Supplement under New York law.” Id.

Specifically, the court held that “misstatements”—such as those alleged by Miller—”do not render an article substantially inaccurate where reading the full article corrects the misstatement or where the misstatement is minor.” Id. at 1312. Accordingly, the article’s use of the phrase “the woman claims” was “substantially accurate when read in the context of the whole Article.” Id.

The court pointed to several aspects of the article that supported this conclusion, including the fact that the article later made clear how the claims against Miller were gathered and reported, and also, “in at least 19 instances, … ma[de] clear its substance is based on ‘court documents’ or a ‘filing.'” Id. at 1313.

The court also distinguished several cases relied upon by Miller where a report was found to not be fair and true—including Karedes v. Ackerley and Pisani v. Staten Island University Hospital—noting that those cases “stand for the proposition that a publication may not imply conduct graver than that described in the underlying source.” Id. at 1314. Karedes v. Ackerley Group, Inc. 423 F.3d 107 (2d Cir. 2005), and Pisani v. Staten Island University Hospital, 440 F. Supp. 2d 168 (E.D.N.Y 2006). The article, by contrast, reported the “exact allegations” set out in the filing. Id.

The court also rejected several other alleged misstatements and omissions advanced by Miller, including the article’s reference to the filing having been done by “Delgado’s legal team,” when Delgado in fact filed the document pro se, finding this to be no more than a “minor inaccurac[y],” which did not “alter the overall effect of the Article.” Id. at 1315.

As to several details Miller claimed were omitted, the court noted that under New York law, “[t]here [is] ‘no requirement that the publication report the plaintiff’s side of the controversy'” (quoting Cholowsky v. Civiletti, 887 N.Y.S.2d 592, 596 (App. Div. 2d Dep’t 2009)) and held the alleged omissions did not “render the Article substantially inaccurate” by “implying graver misconduct than alleged in the underlying proceeding.” Id. at 1316. Indeed, the court acknowledged, “by embedding the full Supplement, Defendants ensured they would not omit any facts at all.” Id. at 1317.

Miller filed a notice of appeal to the 11th Circuit, where it is currently pending.

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