ATLANTA (CN) — Contemplating whether publications may use information from some sealed court documents, the 11th Circuit on Friday heard arguments in a defamation suit brought by ex-Trump staffer Jason Miller against the now-defunct news site Splinter.
Miller was a senior communications advisor for President Donald Trump’s 2016 campaign. He later went on to work as a CNN commentator until September 2018 — when a viral news story reportedly caused him to lose the job.
The story, which was first published by Splinter, derived from court filings in a custody battle in Florida between Miller and Arlene Delgado.
Delgado, the mother of Miller’s child, filed a supplemental document in Miami-Dade Circuit Court that accused the pundit of impregnating a woman and spiking her smoothie with an abortion pill.
Splinter’s Katherine Krueger reported on the court filing and included Miller’s denial of the allegation in the story shortly after its initial publication.
Miller sued Splinter’s parent company, Gizmodo Media Group, claiming the outlet had no right to relay Delgado’s claims to the greater public. He demanded $100 million.
A federal judge last August refused to allow Miller to sue the media group, deciding that the story was a “true and fair” representation of the claims Delgado had put forth in the filing.
The Florida court sided with the publication, ruling that New York’s fair report privilege law, which blocks civil actions over any publication of a “fair and true” report of judicial proceedings, protects Splinter’s speech in the case.
In an attempt to overturn the decision on Friday, Miller’s attorney Shane Vogt told a three-judge panel in a hearing on Zoom that report privilege does not protect those who report on filings if those filings are sealed.
“The fair report privilege does not protect the publication of documents the public has no right to see. The district court did not take into account the public policy considerations underlying the fair report privilege or the purposes for which it was enacted, which are not served by the ruling that was made in this case,” Vogt said.
He added that the supplement filing was “salacious” and “exactly the type of document” that courts do not want to become public.
In Vogt’s view, he said, this case is about balancing interests between the public’s right to know, and the individual liberty and protection of reputation.
Eleventh Circuit Judges Adalberto Jordan, a Barack Obama appointee, and Andrew Brasher and Barbara Lagoa, both Donald Trump appointees, presided over the arguments on Friday.
Elizabeth McNamara, attorney for the defendants in the case, told the panel that there is one exemption from the privilege protections, and that exception is confined to instances in which the documents in question are automatically sealed from public view.
But, divergent from Vogt’s earlier argument, she said that exemption is not applicable here.
When a notice of confidentiality is filed, the clerk’s office has about five days to determine whether or not a document is confidential, according to testimony given to McNamara by a clerk.
“Once somebody files a motion to seal, that motion locks the documents until that motion is heard,” she said.
In this case, the attorney argued, the document was not off limits to the publication due to a technological error.
Urging the panel to affirm the lower court decision, she said Miller’s attorneys are attempting to have the appeals judges change an “absolute” privilege that is owed to Gizmodo.
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