Appeals Court Says Former Trump Advisor Can't Sue Over Reporting Based On Court Documents

from the sworn-statements-considered-truthful-until-otherwise-indicated dept

You can be angry about things said about you in court filings. But you really can't sue about them. Reporting based on court documents is almost (!) always protected by the First Amendment. After all, those making the statements in court are swearing what they're saying is true. Those reporting on sworn statements have no reason to believe otherwise, even if it's eventually revealed the assertions were false.

That's the tough lesson being learned by Jason Miller, a former Trump advisor who sued Gizmodo for reporting on court filings stating he had spiked a smoothie with an abortion pill to head off an inconvenient pregnancy. Miller has always claimed this accusation is false. Splinter -- a now-defunct website owned by Gizmodo -- reported on allegations made by another Trump staffer, A.J. Delgado, back in 2018.

Since then, Miller has been trying to sue Gizmodo for defamation. But there's no defamation here, as the Eleventh Circuit Court of Appeals affirms in its decision [PDF]. The lawsuit was filed in New York, which activates local civil rights laws which grant a "fair and true report" privilege to journalists who report on court filings. That proves instrumental in this dismissal, even though the First Amendment would have covered it as well.

The allegations Miller sued over are incredibly disturbing.

On Friday, September 14, 2018, Ms. Delgado filed a supplement to an earlier motion for the court to consider a psychological evaluation of Mr. Miller. Essentially, the supplement stated that Ms. Delgado was informed in the summer of 2018 that Mr. Miller (while married) had an affair in 2012 with a stripper in Florida referred to as Jane Doe; that Mr. Miller had sexual intercourse with Ms. Doe; that Ms. Doe became pregnant; that Mr. Miller visited Ms. Doe and gave her a beverage which, unbeknownst to her, contained an abortion pill; that Ms. Doe wound up in a hospital emergency room, bleeding heavily, and almost went into a coma; that the pill induced an abortion; and that Ms. Doe’s unborn child died. The supplement identified Ms. Delgado’s initial source for this information and stated that Ms. Doe had later confirmed the story to a journalist.

Miller tried to have this sealed, claiming it would (obviously) harm his reputation and adversely affect paternity proceedings he was currently involved in. Before any action could be taken, Splinter posted an article by Katherine Krueger that ran under this title:

Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant with 'Abortion Pill'

There's nothing untrue about the headline. That's exactly what the court documents alleged. The body of the article expanded on the claims made by A.J. Delgado, reporting only about what was contained in the statement.

Nevertheless, Jason Miller sued. That the document was later sealed by the court doesn't matter. For a brief period of time it could be accessed by anyone. That it was accessed by a site with some reach doesn't change anything.

Miller and the person supposedly slipped the abortion pill swore in court this incident never happened. Denials abounded. For better or for worse, these statements don't matter: what was reported on at the time it was reported is protected by New York law, if not the First Amendment. The district court agreed with Gizmodo. So does the Eleventh Circuit. The only hitch is the state's matrimonial proceedings laws, which can sometimes result in the stripping of this privilege, given the sensitive (and often heated) results of those proceedings.

Ultimately, the rights granted to journalists trump the rights granted to combatants in "matrimonial proceedings."

[W]e note that Shiles has not been extended to reports of public matrimonial proceedings, even though, like sealed records, they are inherently personal in nature, and the allegations made and voiced in such proceedings can be used to promote public scandal, damage reputations, or coerce a settlement.

That's the lesson to be learned here. If documents are available -- even temporarily -- to the public, they can't be considered the basis for defamation. They're sworn statements and should be treated as true until a court says otherwise. A regular person could have drawn the same conclusions from the submitted statements and posted their conclusions on their own. Just because the same thing happened on a website with considerable inbound traffic doesn't change anything. The privilege afforded by the state covers it. And so does the First Amendment, even if the court doesn't have to reach that conclusion.

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Filed Under: defamation, fair and true report, jason miller, journalist privilege, litigation privilege, new york
Companies: gizmodo

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  • icon
    Thad (profile), 27 Apr 2021 @ 10:50am

    And still, somehow, not the worst Miller in the Trump Administration.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 27 Apr 2021 @ 11:33am

    It's a separate problem that falsehoods are allowed in court filings, but that's not splinter/Gizmodo's responsibility.

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 27 Apr 2021 @ 12:03pm


      As you said with it not being Splinter/Gizmodo's responsibility, It's also not the court's job to determine the truth of a filing at the time of that filing - any truths or falsehoods will be determined later in the proceedings.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Apr 2021 @ 1:13pm

    Good job on the Streisand

    A lot more people would never have known if you hadn't run with this bogus defamation suit. Of course, it's almost never about real defamation, since dragging it out is a self-own in the defamation department. It's just that you're mad.

    Never mind that the people whose opinions might actually matter probably went all "bitchez be lyin'" on this anyway. That's one of the dumbest things in many defamation cases if they were really about defamation instead of projecting power. Those people among whom you were supposedly harmed probably never cared to do business with you anyway. The rest of the people who did or would do business with you probably either took your side or didn't care whatsoever.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Apr 2021 @ 1:45pm

    'How dare they use our favorite trick?!'

    You'd think with all the performative lawsuits Trump cultists engage in, where they'll fill the legal filings with lies, accusations and other garbage safe in the knowledge that they can't be sued over content of a legal filing he'd have known that that works both ways, but I guess since the law is there to serve the cult and not the other way around it likely never occurred to him.

    reply to this | link to this | view in chronology ]

  • identicon
    christenson, 27 Apr 2021 @ 3:24pm

    Butowsky v Folkenflik -- still good law?

    Just a question -- Was that crazy decision ever appealed and overturned? Doesn't seem like a good idea to necropost. rivilege-reporting-court-documents-allows-bullshit-defamation-suit-to-proceed.shtml

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 27 Apr 2021 @ 5:46pm

    "Miller tried to have this sealed, claiming it would (obviously) harm his reputation"

    This implies he had a reputation that wasn't already in the toilet.

    Shouldn't the GQP have run him out for causing an abortion?
    Or are they only bad for other people and not the side pieces?

    Also apparently abstinence only doesn't work or perhaps when we say save yourself for marriage we need to clarify you don't get to then have more sexual partners.

    He advised Trump and apparently wasn't bright enough to consider that when sticking your dick in a hooker perhaps a condom might be a wise idea. And people still support him.


    reply to this | link to this | view in chronology ]

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