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.

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

Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt

from the i'm-still-trying-to-figure-it-out-myself dept

So, the Roca Labs story continues to get more and more bizarre. There are these stories that we follow, sometimes, that we think can't get any more bizarre... and then they do. Joseph Rakofsky, Righthaven, Charles Carreon and Prenda Law all seemed to have trouble recognizing the infamous first rule of holes¹. And it would appear that Roca Labs is very firmly in that camp as well. Roca Labs has chosen to sue Marc Randazza, the lawyer representing PissedConsumer in Roca's case against PissedConsumer. Roca is suing him for defamation, but, as Ken "Popehat" White points out, not for anything specific that Randazza has said, but mostly for stuff that we wrote on Techdirt (and some of what was written by Cory Doctorow on Boing Boing) on the bizarre, and simply wrong, assumption that Randazza somehow fed us what to say. Adam Steinbaugh summarizes the situation nicely:

Roca Labs’ theory is that Randazza made defamatory statements to the media, which published them, and then proceeded to make the above statements in pleadings against the company.  The litigation privilege does not extend to statements made outside the litigation — such as statements to the media.

But this position is circumspect at best: Roca Labs is vague about the statements supposedly made to the media. Roca Labs simply notes that two media outlets — Techdirt and BoingBoing — published articles before Randazza filed the pleadings, and those articles contain statements that are also critical of Roca Labs for similar reasons: that the complaint is ridiculous and that the product has the aura of being snake oil — a miracle product that will let its consumers shed weight like a snake sheds skin.

Roca Labs has pulled a bait-and-switch, essentially saying: “look, the media criticized us for similar things that Randazza criticized us, so let’s assume Randazza said those same things to the media.“ Except each of those statements are observations that anyone familiar with free speech issues would probably have made on their own.  The Techdirt article doesn’t even quote or mention Randazza, and it’s not exactly surprising that either outlet would slam Roca Labs’ complaint: these types of half-baked lawsuits are something of a cause célèbre for Mike Masnick (who, himself, is not exactly a scrivener sycophant of Randazza.)  As for the BoingBoing article, it did little more than quote Techdirt, adding, in total:

Roca Labs sells dubious snake-oil like a “Gastric Bypass Alternative,” and their terms of service forbid their customers from ever complaining; they say that Pissedconsumer.com committed “tortious interference” by providing a place where disgruntled buyers could air their grievances.

Calling something a “snake oil” is clearly an opinion no journalist would formulate on his own without talking to the defendants’ counsel, right? Much less BoingBoing, which never calls anything snake-oil.

You can read the lawsuit itself at the link above or embedded below. It makes a huge number of assumptions -- basically all incorrect -- that Randazza spoke to us in particular for our post. He did not. Either way, the Popehat analysis explains why this whole thing is ridiculous:

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by Techdirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which Techdirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

So there's that. The complaint against Randazza also seems to try to smear Randazza for the fact that he's represented the First Amendment interests of some pornographers and "supported" other "undesirable" folks, including writing about the first amendment rights of a pro-pedophilia author.

As Popehat further points out, Roca's lawyer also appears to use "defamation per se" incorrectly. We've noted in the past that Roca has used that claim based on a clause in its terms of service that says if you say negative things about the company it will count as defamation per se (which is not how defamation per se works), but Roca again seems confused with it in regards to Randazza. Popehat provides the primer:

Most people who use "defamation per se" use it wrong. That is the case here. "Defamation per se" does not mean "this is automatically defamatory." It means that certain statements, if proved false with the requisite mental state (malice or negligence), do not require extra proof of special damages.

I can't imagine this particular lawsuit will go far, but I do wonder if Roca Labs and its lawyers will ever recognize that first rule of holes.

^{1. Stop digging ↩}

Filed Under: defamation, defamation per se, intimidation, litigation privilege, marc randazza
Companies: consumer opinion corp., pissedconsumer, roca labs