An attorney for Jason Miller, who is serving as a top adviser to President Donald Trump’s campaign after playing a similar role four years ago, urged a federal appeals court Friday to revive Miller’s libel suit over a report that he slipped an abortion pill into a smoothie he gave to a woman he had gotten pregnant.
The now-defunct website Splinter disclosed in September 2018 that another Trump staffer, A.J. Delgado, leveled the startling claim in a Florida court filing related to a custody dispute involving a child Miller fathered with Delgado. Delgado said the abortion pill incident involved a second woman whose identity she knew, but did not disclose in the court submission.
Miller has vehemently denied the allegation, which his attorney Shane Vogt called “indisputably false” during oral arguments Friday held by videoconference with the Atlanta-based 11th Circuit Court of Appeals.
Bad publicity stemming from the Splinter report as well as other details of Miller’s acrimonious dispute with Delgado led to him being dropped as paid CNN analyst shortly after the allegations emerged. A few weeks later, Miller filed a $100 million defamation suit against Splinter’s parent company, Gizmodo Media, and the reporter on the story, Katherine Kreuger.
Miami-based U.S. District Judge Cecilia Altonaga threw out the suit almost a year ago, holding that New York law applied and that the media outlet’s report was legally privileged as a fair and accurate summary of a judicial proceeding.
However, Miller appealed, arguing that the “fair report privilege” did not apply because the court filing at issue was under seal at the time Splinter published it.
But whether the document had always been sealed seemed to be in some dispute during the 40-minute appeals court arguments Friday.
While Vogt insisted that a court clerk had testified that the document “was sealed and not available to the public from the time that it was filed,” Gizmodo lawyer Elizabeth McNamara suggested it was available for at least three days before Miller’s lawyers filed a notice designating it as confidential.
In any event, McNamara said, the key legal question in the case was the narrow issue of whether the court filing was automatically sealed. Since it wasn’t, Gizmodo had legal protection for publishing the allegations in it, she argued.
McNamara said courts have found “all manner of confidential documents” to be covered by the New York fair report privilege. “There is no basis for the extension of New York law that the plaintiff asks this court to adopt….[he] is asking this court to change the law,” she told the judges.
But Vogt argued that the purpose of the legal protection for reporting on court proceedings simply doesn’t apply in situations involving confidential court records.
“Those documents should not be able to be published under the protection of the fair report privilege,” the attorney said. “We do have a sealed court filing, but also that court filing happens to fall within the category of documents that the public policy the state of New York, the state of Florida and under the federal Constitution have all said are the type of documents the public should not have access to.”
Vogt painted the decision from Altonaga, a George W. Bush appointee, as an assault on Florida courts’ ability to control their own records.
“The district court ruling here is allowing the New York legislature to rule that court filings in the state of Florida cannot be effectively sealed,” Vogt said.
None of the three judges assigned to the appeal indicated a clear view of the case, but Judge Adalberto Jordan seemed most skeptical about Miller’s bid to revive the suit.
“Your argument is not really a public policy argument, it’s a factual one,” said Jordan, an Obama appointee.
When Vogt said at one point that there was “no public interest” in the information in sealed court documents, Jordan chimed in.
“I think that might be a bit of an overstatement,” the judge said.
Vogt agreed, but said Miller’s case was “a situation where the public’s right to know is outweighed by the individuals’ interest in protecting their reputations and not being exposed to those things being made public.”
No ruling was issued Friday, but the other two judges — Trump appointees Barbara Lagoa and Andrew Brasher — seemed friendlier to Miller’s case.
At one point, Brasher suggested it might be appropriate for the federal appeals court to formally submit the New York law issue at the heart of the case to New York’s top court for resolution. That could open the door to restoring Miller’s suit, but would almost certainly draw out the legal dispute for years.