Daily Dicta: Judge Axes Splinter.com Defamation Suit
In a win for Davis Wright Tremaine litigators, U.S. District Judge Cecilia Altonaga held that the article "is a fair and true report as a matter of law."
August 29, 2019 at 01:43 PM
3 minute read
Another notable defamation case had a happy ending—at least for reporters who write about litigation.
On Tuesday, a federal judge in Miami dismissed an ugly suit against Gizmodo Media Group on summary judgment—a win for an all-women defense team from Davis Wright Tremaine featuring Katherine Bolger, Elizabeth McNamara, Abigail Everdell and Jamie Raghu.
I wrote about the case in April—The Stripper, the Smoothie and the Abortion Pill—when U.S. District Judge Cecilia Altonaga denied a motion to dismiss the suit. Her initial decision rested on minor errors in a story published on Gizmodo's Splinter.com.
Political strategist and commentator Jason Miller, who was the communications director for President Trump's transition team, sued Splinter after it reported on a court filing that claimed Miller impregnated a stripper in Orlando and secretly slipped her an abortion drug in a smoothie, terminating the pregnancy.
"This case is a terrifying example of how people can use false accusations of violence against women to destroy someone's life," wrote Miller's lawyers, Kenneth Turkel and Shane Vogt (Harder's co-counsel in the Hulk Hogan case) from Bajo Cuva Cohen Turkel.
Fellow Trump campaign staffer Arlene "A.J." Delgado (a Harvard Law School graduate) made the pro se supplemental filing containing the allegations in family court in Florida.
She and Miller had an affair that resulted in her pregnancy, and were embroiled in a nasty custody fight over their son.
Per Delgado, a man she met on Twitter told her about the supposed stripper/abortion drug incident. She claimed that another journalist investigated the allegation, contacting the stripper, who allegedly said, "Yes, that happened to me — how did you know? Who told you?"
Delgado laid out all the details in the court filing obtained by Splinter, which published a story about the allegations. It quickly went viral, with devastating consequences for Miller, who vehemently denies the accusations.
But could Miller go after Splinter for its reporting? Normally, accurate reporting on judicial proceedings is protected from defamation suits. But what if it's not 100% accurate?
Miller pointed to several small errors in the story, such as this sentence: "Additionally, the 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."
Miller objected that the phrase "the woman claims" was misleading because it attributes the accusations to the victim herself, as opposed to Delgado.
He also protested that the story referred to Delgado's "legal team," when in fact she filed the court papers pro se.
Overall, the judge concluded that the story was substantially accurate, noting that the article embeds a full copy of the court supplemental filing, so readers could judge it for themselves.
"The material facts of record show the article is a fair and true report as a matter of law, leaving no triable issue of fact on defendants' affirmative defense," Altonaga wrote. "In fact, by embedding the full supplement, defendants ensured they would not omit any facts at all."
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