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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-24227-CIV-ALTONAGA/Goodman
JASON MILLER,
Plaintiff,
v.
GIZMODO MEDIA GROUP, LLC; et al.,
Defendants.
_____________________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Gizmodo Media Group, LLC
(“Gizmodo”) and Katherine Krueger’s (“Krueger[’s]”) Motion for Summary Judgment [ECF No.
155] submitted with their Statement of Undisputed Material Facts (“Defs.’ SOF”) [ECF No. 156].
Defendants have submitted the Declarations of Krueger [ECF No. 157], Timothy Marchman [ECF
No. 158], and Aleksander Chan [ECF No. 159] in support of the Motion. 1 Plaintiff, Jason Miller,
filed his Response [ECF No. 172] as well as his Statement of Facts (“Pl.’s SOF”) [ECF No. 171],
to which Defendants filed a Reply [ECF No. 177] and Counterstatement to Plaintiff’s Additional
Facts [ECF No. 178].
The Court has carefully considered the Amended Complaint [ECF No. 5], the parties’
submissions, the record, and applicable law. Because there are no material facts in dispute that
could defeat Defendants’ affirmative defense raising the New York fair report privilege, codified
in section 74 of the New York Civil Rights law, the Motion is granted, and summary judgment
will be entered by separate order.

1

The Krueger Declaration attaches Exhibits 1–17. The Marchman Declaration attaches Exhibit 18.
Defendants submitted Exhibits 19–24 separately. (See Notice of Filing Materials in Support of Defendants’
Motion for Summary Judgment (“Notice of Supplementary Materials”) [ECF No. 160]).

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I.

BACKGROUND

This is a defamation case. (See generally Am. Compl.). Plaintiff is a political strategist
and commentator. (See Defs.’ SOF ¶¶ 2, 39). Krueger is the managing editor of a news website,
Splinter. (See id. ¶ 52). Gizmodo is Splinter’s corporate parent. (See Am. Compl. ¶¶ 19–20).
Plaintiff alleges Defendants defamed him by publishing an online article (the “Article”) containing
false accusations made against him in a confidential court filing and inaccurately characterizing
the accusations. (See generally id.). The material undisputed facts follow.
A.

The Facts

Plaintiff worked on campaigns, in the administrations of numerous pro-life politicians, and
as a political commentator on CNN. (See Defs.’ SOF ¶¶ 2, 39). 2 The events at issue in this case
began in the summer of 2016, when Plaintiff served as a Senior Communications Advisor for the
2016 presidential campaign. (See id. ¶ 4). In August 2016, Plaintiff hired Arlene Delgado
(“Delgado”) to work as a spokesperson for the campaign. (See id. ¶ 11). Delgado is a Harvard
Law School graduate and member of the New York bar. (See id. ¶ 8). She has appeared on
numerous radio and television shows and has been published in multiple news outlets. (See id. ¶
9).
In October 2016, Plaintiff and Delgado began an affair. (See id. ¶¶ 15–16). The affair
resulted in Delgado’s pregnancy. (See id. ¶ 25). In July 2017, Plaintiff and Delgado’s son was
born. (See id. ¶ 41). Articles about the affair, birth of Plaintiff and Delgado’s son, and subsequent
custody dispute have appeared in publications including the Atlantic, Talking Points Memo, the
New York Post, the Daily Mail and Vanity Fair. (See id. ¶ 43).

2

All facts are considered undisputed unless otherwise indicated.

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1. The Family Court Action
In July 2017, Plaintiff initiated a custody proceeding in Miami-Dade County, Florida
Family Court (the “Family Court Action”). (See id. ¶ 42). On September 14, 2018, Delgado filed
a document entitled “Mother’s Supplement to Mother’s March 2018 Motion for Court to Consider
Psychological Evaluation of the Father” (the “Supplement”) in the Family Court Action. (See id.
¶ 44; Krueger Decl., Ex. 9, Supplement [ECF No. 157-9]). The parties dispute whether the
Supplement has been sealed since it was filed or whether it is publicly available. 3 (See Defs.’ SOF
¶¶ 45–50; Pl.’s SOF ¶¶ 45–50).
In the Supplement, Delgado accuses Plaintiff of having an affair with and impregnating
“Jane Doe” years earlier, slipping her an “abortion pill,” and killing her unborn child without her
consent. (Supplement 2–3). 4 The Supplement states, in part:
In summer 2018, [Delgado] was informed as follows:
1. In 2012, Mr. Miller, while working for Jamestown Associates, was working
closely with the firm’s Florida clients.
2. As part of this, Mr. Miller spent significant time in Orlando, FL.
3. Evenings with clients and colleagues sometimes entailed steakhouse dinners
followed by strip clubs and/or patronage of escorts for some of the participants.
4. During one such evening, Mr. Miller and other colleagues/clients visited
Rachel’s Gentleman’s Club, a strip club in Orlando (which also has a West
Palm Beach location).
5. At the time, Mr. Miller was already married to his wife (whom he married in
July 2008) and had a 4-year-old daughter (who was born in late 2008).

3

As explained infra in section III(A), whether the Supplement was sealed does not affect the Court’s
analysis.
4

The Court relies on the pagination generated by the Case Management/Electronic Case Files system,
which appears as a header on all filings.

3

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6. Mr. Miller met a stripper that evening, which [sic] will be referred to herein as
“Jane Doe” (Mother has individual’s full name).
7. Mr. Miller had sexual intercourse with Jane Doe and continued a sexual
relationship with her for some unknown period of time.
8. Jane Doe became pregnant.
9. Shortly thereafter, according to Jane Doe, Mr. Miller visited her apartment with
a Smoothie beverage.
10. Unbeknownst to Jane Doe, the Smoothie contained an abortion [p]ill.
11. The pill induced an abortion, and Jane Doe wound up in a hospital emergency
room, bleeding heavily and nearly went into a coma.
12. The unborn child died.
(Id. (alterations added; emphasis in original)).
The Supplement identifies Delgado’s sources for the information. (See id. 4–11). It states
Delgado initially discovered the accusations from a man she met on Twitter, who told Delgado he
received the information about Jane Doe from “multiple” sources whom he believed were
“credible.” (Id. 7 (quotation marks in original; emphasis removed)). He cautioned the account
was “unverified by him” and he was “unable to vouch for its veracity.” (Id.). The Supplement
states a private investigator contacted Jane Doe, but she “was not interested in speaking out.” (Id.
3).
The Supplement further states Delgado notified a journalist after learning of the
accusations, and the journalist (1) contacted Jane Doe via Facebook, spoke to her, her friends, and
her family; (2) traveled to Florida to investigate the story (see id. 9); (3) “confirmed the account
directly with the victim herself”; and (4) stated Jane Doe’s instant reaction was “‘Yes, that
happened to me — how did you know? Who told you?’” (id.).

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According to the Supplement, the journalist told Delgado he had “all [he] need[ed]” to
write the story (id. (alternations added)), but the journalist had not published a report on the story
due to his editors’ concern “Jane Doe would backtrack” (id. 10–11). The Supplement states the
journalist “continues working on the report.” (Id. 11).
2. The Splinter Article
On September 21, 2018, Krueger received a message from a source who informed her
Delgado filed the Supplement in the Family Court Action. (See Defs.’ SOF ¶ 55). The source sent
Krueger a copy of the Supplement. (See id.). Krueger confirmed with Delgado the document was
an authentic copy of the Supplement. (See id. ¶¶ 56, 82; Krueger Decl. ¶ 53).
Krueger reviewed the Supplement in full and prepared to write a report on it. (See Defs.’
SOF ¶ 59; Krueger Decl. ¶ 56). She intended to write “a straight forward report on a filed court
document” and to “closely track the allegations made in the Supplement.” (Kreuger Decl. ¶ 57).
Prior to drafting, Krueger sent an electronic message to her editor, Timothy Marchman, stating, “I
think I’m mostly gonna let [the allegations] speak for themselves? And just hew closely to the doc
as filed . . . .” (Id., Ex. 10, Krueger/Marchman Electronic Correspondence [ECF No. 157-10] 7
(alterations added)). Marchman responded, “[this is] one to play straight.” (Id. (alteration added)).
Krueger drafted the Article. (See Defs.’ SOF ¶ 80; Krueger Decl. ¶ 59). It was then edited
by Splinter Editor-in-Chief Aleksander Chan and Deputy Editor Jack Mirkinson. (See Defs.’ SOF
¶ 85; Krueger Decl. ¶ 59).
On September 21, 2018, Splinter published the Article, titled “Court Docs Allege ExTrump Staffer Drugged Woman He Got Pregnant With ‘Abortion Pill,’” on its website. (See
Krueger Decl. ¶ 59; id., Ex. 1, Article [ECF No. 157-1]). The opening paragraph of the Article
states:

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The ongoing custody battle between former Trump campaign operatives Jason
Miller and A.J. Delgado has taken another nasty turn: In an explosive new court
filing, Delgado’s legal team alleges that Miller — prior to their [sic] own highprofile extramarital romance — carried out an affair with a woman he met at an
Orlando strip club. 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.
(Article 2). The Article provides background information on Plaintiff and Delgado’s affair. It
includes hyperlinks to articles in the Atlantic and Page Six about the relationship, child, and
custody battle. (See id. 3–4). The Article states the Supplement was “filed in Miami-Dade Circuit
Court on Sept. 14 and obtained by Splinter” and “Delgado confirmed the document’s authenticity
to Splinter but declined to comment further.” (Id. 3).
The Article describes how Delgado obtained the information she includes in the
Supplement. It states Delgado initially learned of the story from a man she sought out on Twitter,
after he “tweeted cryptic messages at Miller referencing the Orlando strip club by name and saying
[he] want[s] his ‘unethical immoral deals’ to come to light.’” (Id. 4 (alterations added)). The
Article states Delgado relayed the allegations to a journalist, “who spoke with Jane Doe to confirm
details about the story.” (Id.). Quoting the Supplement, the Article states:
When the journalist asked about the account, the filing says, “Jane Doe’s instant
reaction was: ‘Yes, that happened to me—how did you know? Who told you?’”
(Id.). The end of the Article invites viewers to “[r]ead the full court filing below.” (Id. (alteration
added)). It embeds a full copy of the Supplement, which readers can review in full without leaving
the webpage. (See id. 6–7; Defs.’ SOF ¶ 91).
After the Article was published, Plaintiff’s counsel contacted Gizmodo and stated the
allegations in the Supplement were false. (See Defs.’ SOF ¶ 92). Within an hour, Defendants
updated the Article to include Plaintiff’s denial. (See id.). The next day, Plaintiff posted a series

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of tweets on his public Twitter page stating the accusations in the Supplement and Article “have
already been disproven by at least one reporter . . . .” (Id. ¶ 93 (quoting Jason Miller tweet dated
Sept. 22, 2018 [ECF 157-16] 3; alteration added)). Shortly thereafter, the journalist referenced in
the Supplement tweeted: “I have not disproven such claims and to say so is inaccurate,” and “[i]t
is indeed accurate that I spoke to two women in Florida who made claims similar to the ones listed
in Ms. Delgado’s filing.” (Id. ¶ 94 (quoting Yashar Ali tweet dated Sept. 22, 2018 [ECF No. 15717] 2 (alteration added)). Defendants updated the Article to include both Plaintiff’s tweeted denial
of the allegations, as well as the journalist’s tweets in response, within an hour of Plaintiff’s initial
Twitter posts. (See id. ¶ 95; Article 5).
3. Krueger’s and her Editors’ Unrebutted Testimony
Krueger, Mirkinson, and Chan stated the goal of the Article was to report on the fact the
Supplement had been filed and describe the Supplement’s contents. (See Krueger Decl. ¶ 57;
Notice of Supplementary Materials, Ex. 41, Jack Mirkinson Deposition [ECF No. 160-23] 3:18–
21; Chan Decl. ¶ 8 5). Krueger stated she and her editors embedded the entire Supplement at the
end of the Article so readers could “review [the Supplement] in full and judge for themselves
whether there was additional information in the Supplement that might change their view regarding
the allegations.” (Krueger Decl. ¶ 88 (alteration added)). Krueger further stated the Article
“closely tracks the information contained in the Supplement” and “includes 19 separate references
to ‘court documents,’ the ‘filing,’ and the like.” (Id. ¶ 66).

5

Plaintiff disputes Chan edited the Article with the intention of keeping it a straightforward report on the
Supplement and its allegations. (See Defs.’ SOF ¶ 86; Pl.’s SOF ¶ 86). In support, Plaintiff cites excerpts
from Chan’s deposition in which Chan testifies Krueger chose which allegations from the Supplement to
include in the Article and that he added the phrase “Delgado’s legal team” to the Article because he did not
realize the Supplement was in fact filed by Delgado pro se. (See Pl.’s SOF ¶ 86 (citing Aleksander Chan
Deposition [ECF No. 171-28])). Neither excerpt creates a material dispute of fact regarding Chan’s intent
to straightforwardly report on the Supplement.

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During the editing process, Chan modified the last sentence of the opening paragraph, or
the “lede,” by changing the phrase “she claims” in the original draft to “the woman claims.”
(Defs.’ SOF ¶ 87; 6 Kreuger Decl. ¶¶ 63, 82; Chan Decl. ¶ 10; Article 2). As published, the sentence
reads: “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.” (Article 2 (emphasis added)).
Chan testified he made this revision to clarify the court-filed Supplement stated the victim
herself had confirmed the allegations to the journalist. (See Defs.’ SOF ¶ 88; Chan Decl. ¶¶ 10–
11). He stated the lede is “describing in a shorthand fashion information that the reader will learn
in more detail later in the article.” (Chan Decl. ¶ 11). Chan elaborated, “the Article proceeds to
explain to the reader precisely how and to whom Jane Doe confirmed the story and it even includes
the actual confirming quote from the victim that was contained in the Supplement.” (Id.).
Both Krueger and Marchman stated they viewed the clause “the woman claims” as a
subordinate clause to the sentence’s prior reference to “the court documents claim.” (Krueger
Decl. ¶ 63 (internal quotation marks omitted); Marchman Decl. ¶ 19; Defs.’ SOF ¶ 89). Read in
context, they understood it to mean the Supplement “included a confirmation from the victim to
the journalist that the events described had happened.” (Marchman Decl. ¶ 20; see also Krueger
Decl. ¶¶ 63, 82–83).
Chan further testified he revised the lede to include the phrase, “Delgado’s legal team,”
although he now understands Delgado filed the document as a pro se plaintiff. (Chan Decl. ¶ 12
(internal quotation marks omitted)). He said he does not find the phrase misleading, as “the Article

6

Plaintiff disputes the fact presented in paragraph 87, but he does not dispute Chan made this revision. (See
Pl.’s SOF ¶ 87). Plaintiff only disputes whether the revision made the passage inaccurate and misleading.
(See id.).

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consistently informs the reader that these are ‘Delgado’s allegations” and because Delgado is an
attorney. (Id.). Krueger likewise stated the Article “over and over makes it clear to the readers
that these are ‘Delgado’s allegations, that ‘Delgado says,’ and that it is ‘Delgado’ who is asking
the court to order Miller to have a psychological examination . . . .” (Krueger Decl. ¶ 80 (alteration
added)).
In addition, Krueger stated she included the facts that Splinter “obtained” the Supplement
and Delgado verified its “authenticity” in the Article to inform readers she obtained the document
through means other than the court docket. (See id. ¶¶ 84–86 (quotation marks in original)). She
testified she did not omit any material portion of the Supplement in the Article because the entire
Supplement was embedded in the Article. (See id. ¶¶ 87–93). Krueger, Chan, and Marchman all
declare they found the Article to be a straightforward, fair and accurate report on the contents of a
court document. (See id. ¶ 7; Chan Decl. ¶ 14; Marchman Decl. ¶ 21).
B.

Procedural History

On October 18, 2018, Plaintiff filed an Amended Complaint stating a defamation claim
and four related causes of action against Defendants. (See generally Am. Compl.). Defendants
filed a Corrected Motion to Dismiss the Amended Complaint [ECF No. 44], arguing in part the
defamation claim should be dismissed under New York’s fair report privilege and on First and
Fourteenth Amendment grounds. On April 24, 2019 the Court granted in part the Motion to
Dismiss (“Dismissal Order”), dismissing all but Plaintiff’s defamation claim. (See Dismissal
Order [ECF No. 110]).
As to the defamation claim, the Court found Plaintiff sufficiently stated a claim for
defamation at the motion-to-dismiss stage — even if the fair report privilege applied — because
he plausibly alleged the Article was not a fair and accurate report of the Supplement. (See id. 12–

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20). Defendants filed their Answer [ECF No. 118] on May 7, 2019, alleging as an affirmative
defense the New York fair report privilege. (See id. 21). On June 27, 2019, Defendants filed the
present Motion for Summary Judgment.
II.

LEGAL STANDARD

Summary judgment is rendered if the pleadings, the discovery and disclosure materials on
file, and any affidavits show there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is “material”
if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find
for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The moving party has the burden of proving the absence of a genuine issue
of material fact, and all factual inferences are drawn in favor of the non-moving party. See Allen
v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). If there are any factual issues, summary
judgment must be denied and the case proceeds to trial. See Whelan v. Royal Caribbean Cruises
Ltd., No. 1:12-CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def.
Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981)).
A defendant seeking summary judgment based on an affirmative defense, such as the New
York fair report privilege, has the burden of showing “beyond peradventure all of the essential
elements of the . . . defense to warrant judgment in [its] favor.” Fontenot v. Upjohn Co., 780 F.2d
1190, 1194 (5th Cir. 1986) (alterations added; emphasis in original).
III.

DISCUSSION

Defendants request summary judgment on three separate grounds: (1) the Article is
protected by New York’s fair report privilege; (2) Defendants did not make any defamatory

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statements of fact; and (3) there is no evidence Defendants acted with actual malice. (See generally
Mot.). Because the Court finds undisputed material facts show the Article is privileged under New
York law, it does not reach the second and third grounds. 7
Under New York’s fair report privilege, codified in section 74 of its Civil Rights Law, “A
civil action cannot be maintained against any person, firm, or corporation, for the publication of a
fair and true report of any judicial proceeding . . . .” N.Y. Civ. Rights Law § 74 (alteration and
emphasis added). The purpose of the statutory privilege is to protect reports of judicial proceedings
“made in the public interest.” Williams v. Williams, 23 N.Y.2d 592, 599 (N.Y. 1969).
A publication is considered “fair and true” if it is “substantially accurate.” Cholowsky v.
Civiletti, 887 N.Y.S.2d 592, 595–96 (App. Div. 2d Dep’t 2009) (quoting Holy Spirit Ass’n for
Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 67 (N.Y. 1979)) (internal
quotation marks omitted). “A report is substantially accurate if, despite minor inaccuracies, it does
not produce a different effect on a reader than would a report containing the precise truth.”
Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 119 (2d Cir. 2005) (internal quotation marks and
citations omitted). In contrast, a report is not substantially accurate “if it would have a different
effect on the mind of the recipient than the actual truth.” Id. (internal quotation marks and citation
omitted).

7

After filing his Response, Plaintiff filed a Motion for Leave to Amend or Supplement Sword and Shield
Objections or, Alternatively, to File Surreply [ECF No. 185]. Plaintiff sought to elaborate on his “sword
and shield” objections, which he raised in response to Defendants’ evidence that: (1) the Supplement was
not sealed, and (2) they did not act with actual malice. (See id. 6–7). Setting aside the fact that this filing
was submitted after the deadline for pretrial motions in the Amended Scheduling Order [ECF No. 101],
allowing Plaintiff supplemental briefing on these matters would not change the Court’s analysis because
the Court assumes for purposes of this Order that the Supplement was sealed, and the Court does not reach
Defendants’ actual malice argument.

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The Court first clarifies how the fair report privilege applies to publication of the
Supplement, and then explains why 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.
A.

New York Civil Rights Law Section 74 Applies to the Supplement

The parties contest whether the fair report privilege applies to the Supplement because the
Supplement was sealed. (See Mot. 12–15; Resp. 5–9). Plaintiff argues New York Civil Rights
Law section 74 does not apply to the Supplement under an exception for reports on sealed family
court filings. (See Resp. 5–9 (citing Stevenson v. News Syndicate Co., 96 N.Y.S. 2d 751 (App.
Div. 2d Dep’t 1950), aff’d, 302 N.Y. 81 (N.Y. 1950); and Shiles v. News Syndicate Co., 27 N.Y.2d
9 (N.Y. 1970)). According to Defendants, the exception Plaintiff identifies is narrow and limited
to filings in matrimonial actions sealed under section 235(1) of New York’s Domestic Relations
Law. (See Mot. 15). Defendants contend the narrow exception does not apply to the Supplement.
(See id.).
The Court agrees with Defendants. Under a long line of New York cases — as noted in
the Dismissal Order (see Dismissal Order 9) — New York’s fair report privilege generally applies
to sealed documents. See, e.g., Keogh v. N.Y. Herald Tribune, Inc., 274 N.Y.S.2d 302, 305 (Sup.
Ct. 1966) (applying privilege to reports of grand jury proceedings even though they are
confidential); Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. City of New York, 475
N.Y.S.2d 383, 388 (App. Div. 1st Dep’t 1984) (explaining “the activities of the agency need not
be public for the statutory privilege to apply”); Komarov v. Advance Magazine Publishers, Inc.,
691 N.Y.S.2d 298, 300 (N.Y. Sup. Ct. 1999) (concluding section 74 applies to a report on an
affidavit of an FBI agent that was “not prepared for public consumption”); Grab v. Poughkeepsie
Newspapers, Inc., 399 N.Y.S.2d 97, 98 (N.Y. Sup. Ct. 1977) (applying the privilege to coverage

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of confidential youth offender proceedings); Gubarev v. BuzzFeed, Inc., 340 F. Supp. 3d 1304,
1314 (S.D. Fla. 2018) (applying New York law and finding “New York courts have extended the
term ‘official proceeding’ to cover any official investigation even if it is not open to the public.”).
Plaintiff’s reliance on the exceptions set forth in Stevenson and Shiles is misplaced.
Stevenson concerned a prior version of New York’s fair report statute, section 337 of the Civil
Practice Act, which expressly applied only to reports of “public” proceedings and has since been
repealed. Stevenson, 96 N.Y.S.2d at 753; see also Keogh, 274 N.Y.S.2d at 305 (explaining “[t]he
word ‘public’ was subsequently deleted from section 337 . . . and is not contained in section 74”)
(alterations added)). 8 Shiles sets forth a limited exception to the fair report privilege, applicable
only to materials sealed under section 235(1) of New York’s Domestic Relations Law. See 27
N.Y.2d at 12–13. The Shiles opinion does not hold the exception should expand beyond the
specific statute at issue, and the Court finds no basis to support Plaintiff’s contention that Shiles
limits the fair report privilege to reports serving “the administration of justice.” (Resp. 7). A close
reading of Shiles shows the court identified a narrow exception to the fair report privilege based
on the New York legislature’s intent in enacting section 235(1) of the Domestic Relations Law.
See 27 N.Y.2d at 18 (“In short, section 74 of the Civil Rights Law does not afford a party a license
to destroy by indirection the salutary protection afforded by section 235 of the Domestic Relations
Law.”).

8

Even if removal of the word “public” from section 74 did not change the meaning of the statute, as Plaintiff
asserts (see Resp. 8), Stevenson also turned on the fact that the articles at issue were based on an affidavit
that was confidential under Rule 278 of the New York Rules of Civil Practice, which rendered matrimonial
filings confidential. See 96 N.Y.S.2d at 752–53, 755. Section 235 of the Domestic Relations Law, analyzed
in Shiles, replaced Rule 278 of the Rules of Civil Practice. See Shiles, 27 N.Y.2d at 13, n.2. Thus, like
Shiles, Stevenson involves an exception for filings in matrimonial actions that are sealed by operation of
New York statute, which is not applicable here.

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Indeed, after Shiles, courts have continued to apply the fair report privilege to family court
proceedings not governed by section 235(1) of the Domestic Relations Law, regardless of whether
the information served the public interest. 9 See, e.g., Zappin v. NYP Holdings Inc., 769 F. App’x
5, 8 (2d Cir. 2019) (applying section 74 to an article about matrimonial proceedings); Gillings v.
New York Post, 87 N.Y.S.3d 220, 223 (App. Div. 2d Dep’t 2018) (applying section 74 to article
describing divorce action). Moreover, courts interpreting Shiles have found it only applies to
reports on filings rendered confidential by operation of section 235(1) of the Domestic Relations
Law. See Zappin, 769 F. App’x at 8 (declining to extend Shiles to matrimonial proceedings under
section 235(2) of the Domestic Relations Law); Grab, 399 N.Y.S.2d at 98 (distinguishing Shiles
because it involved papers filed in a matrimonial action which a New York statute required be
sealed).
Here, it is undisputed the Supplement was filed in a custody proceeding in the Miami-Dade
County, Florida family court. (See Defs.’ SOF ¶¶ 42, 44). The Family Court Action is not
governed by section 235(1) of New York’s Domestic Relations Law. 10 Accordingly, Shiles does
not bar Defendants from defensively asserting a privilege under section 74.

9

Plaintiff interprets Shiles to mean the fair report privilege only applies to reports on sealed court filings if
the filing is about a matter of public concern. (See Resp. 6–8). Based on this view, Plaintiff argues the
privilege does not apply because the Supplement is a sealed court filing about a matter of private concern.
(See id.). Even if Plaintiff’s reading of Shiles were correct, the privilege would likely still apply to a fair
report on the Supplement because Plaintiff is a public figure and media coverage of his affair and custody
dispute makes it more likely the Supplement is about a matter of public concern. (See Defs.’ SOF ¶¶ 1, 36,
43).

10

Florida family court actions are presumptively open to the public. See Barron v. Fla. Freedom
Newspapers, Inc., 531 So. 2d 113, 119 (Fla. 1988) (holding presumption of openness for all court
proceedings applies to dissolution proceedings).

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B.

“Fair and True” Report

The Court “may determine as a matter of law whether allegedly defamatory publications
are fair and true reports of official proceedings.” Nix v. ESPN, Inc., 772 F. App’x 807, 812 (11th
Cir. 2019) (applying New York law) (citation and internal quotation marks omitted). For a report
to be characterized as “fair and true” within the meaning of section 74, “it is enough that the
substance of the article be substantially accurate.” Holy Spirit Ass’n for the Unification of World
Christianity, 49 N.Y.2d at 67. The language used in the Article “should not be dissected and
analyzed with a lexicographer’s precision.” Id. at 68. Instead, “[t]he term ‘fair and true report’
has been given a liberal interpretation.” Alf v. Buffalo News, Inc., 953 N.Y.S.2d 797, 798–99 (App.
Div. 4th Dep’t 2012), aff’d, 21 N.Y.3d 988 (N.Y. 2013) (alteration added; citations omitted).
As explained, “[a] report is ‘substantially accurate’ if, despite minor inaccuracies, it does
not produce a different effect on the reader than would a report containing the precise truth.” Nix,
772 F. App’x at 808 (citation and internal quotation marks omitted; alteration added). A report is
not substantially accurate where “it would have a ‘different effect’ on the mind of the recipient
than the ‘actual truth.’” Karedes, 423 F.3d at 119 (citation omitted). “Section 74 does not afford
protection if the specific statements at issue, considered in their context, suggest[] more serious
conduct than that actually suggested in the official proceeding.” Id. (citation and internal quotation
marks omitted; alteration in original). Whether a report is “fair and true” focuses on whether the
report “attributes to Plaintiff[] misconduct beyond that alleged” in the court document. Gubarev,
340 F. Supp. 3d at 1318 (alteration added). Any fair report analysis requires the court read the
challenged statements “in the context of the entire statement or publication as a whole, tested

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against the understanding of the average reader . . . .” Aronson v. Wiersma, 65 N.Y.2d 592, 594
(N.Y. 1985) (alteration added; citations omitted).
Plaintiff identifies four inaccuracies in the Article he claims run afoul of the “fair and true”
standard. Plaintiff argues: (1) the phrase “the woman claims” in the last sentence of the opening
paragraph is misleading because it attributes the accusations to the victim herself, as opposed to
Delgado (see Resp. 15); (2) the statement the Supplement was filed by “Delgado’s legal team”
suggests it was vetted by a team of lawyers when in fact it was filed by Delgado herself (see id.
17); (3) the statement Splinter “obtained” the Supplement and verified its “authenticity” suggests
Defendants independently investigated the allegations in the Supplement, which they did not (see
id.); and (4) the Supplement omits facts that would cast doubt on the veracity of the allegations, if
included (see id. 17–18). The Court addresses each alleged inaccuracy in the Article in turn.
1.

First Alleged Inaccuracy

The last sentence of the opening paragraph of the Article reads: “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.” (Article 2 (emphasis added)). Plaintiff argues in the Dismissal
Order the Court already determined the phrase is misleading. (See Resp. 11, 15). Plaintiff also
asserts the phrase renders the Article substantially inaccurate because it is ambiguous and gives
greater credence to Delgado’s unverified claims than appropriate. (See id. 12, 15).
As a preliminary matter, the Dismissal Order did not decide the phrase “the woman claims”
renders the Article misleading. (See Dismissal Order 13–20). The Court found only that, at the
motion-to-dismiss stage, Plaintiff’s allegations stated a plausible claim of defamation; that is, the
Court could not conclude the Article did not produce a different effect on the average reader than

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would a report on the Supplement. (See id. 15–16). Summary judgment presents a higher bar, and
Plaintiff “may not rest upon mere allegation or denials of his pleading but must set forth specific
facts showing there is a genuine issue for trial.” Anderson, 477 U.S. at 256; see also Gubarev, 340
F. Supp. 3d at 1312.
With the summary judgment standard in mind, review of the record shows the Article: (a)
states the allegations come from an “explosive new court filing” in the “ongoing custody battle”
between Plaintiff and Delgado (Article 2); (b) describes the “acrimony” between Plaintiff and
Delgado (id. 4); (c) describes how Delgado obtained the information (see id.); (d) quotes the
victim’s alleged reaction to the journalist, exactly as it is quoted in the Supplement (see id. (quoting
Jane Doe stating: “Yes, that happened to me — how did you know? Who told you?” (internal
quotation marks omitted)), see also Supplement 9 (same)); and significantly (e) embeds a full copy
of the Supplement, so readers can review the Supplement without leaving the webpage (see Defs.’
SOF ¶ 91). Considering these undisputed facts, the Article is a substantially accurate report on the
Supplement under New York law.
Holy Spirit Association for Unification of World Christianity v. New York Times Company,
49 N.Y.2d 63, and its progeny are instructive. 11 In Holy Spirit, The New York Times published
articles based on three intelligence documents containing information from an unidentified source.
See 49 N.Y.2d at 66. The Times acknowledged information from one of the documents was
unverified but reported information in that document was “confirmed and elaborated” in the other
two documents, failing to disclose the information in those documents was also unverified. Id. at
67. The court affirmed summary judgment in favor of the Times. See id. at 68. It reasoned even

11

As noted in the Order denying Defendants’ Motion for Reconsideration [ECF No. 117], Holy Spirit is a
summary judgment case, not a motion-to-dismiss case. (See Reconsideration Order [ECF No. 139] 3).
Holy Spirit is more persuasive and relevant at this stage of the proceedings.

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if the phrase “confirmed and elaborated” denoted “a sense of legitimacy which . . . could be
characterized as imprudent given the unverified nature of the reports,” the phrase was not enough
to “render the newspaper articles unfair.” Id. (alteration added).
Since Holy Spirit, courts have repeatedly found misstatements do not render an article
substantially inaccurate where reading the full article corrects the misstatement or where the
misstatement is minor. See, e.g., Becher v. Troy Publ’g Co., Inc., 589 N.Y.S.2d 644, 648 (App.
Div. 3d Dep’t 1992) (finding articles that falsely suggested the plaintiff had been indicted on felony
bribery charges were fair and accurate where the articles later correctly described the charges as
misdemeanors for lesser offenses); see also Alf, 953 N.Y.S.2d at 799 (holding articles stating
company admitted to repeatedly overcharging the government millions of dollars were
substantially accurate, even though the company only pled guilty to a single charge of submitting
a false document, because a review of the plea agreement in full supported the statement); Silver
v. Kuehbeck, No. 05 Civ. 35 (RPP), 2005 WL 2990642, at *16 (S.D.N.Y. Nov. 7, 2005), aff’d, 217
F. App’x 18 (2d Cir. 2007) (dismissing defamation claim based on section 74 because statement
was a substantially accurate report of a judicial proceeding “in view of the entire article in which
[the] statement appeared”) (alteration added).
Here, as in Holy Spirit and its progeny, the contested phrase is substantially accurate when
read in the context of the whole Article. Several aspects of the Article and the unrebutted evidence
support this conclusion.
First, according to Krueger and her editors, the sentence reading “court documents claim .
. . the woman claims,” was intended to mean that according to the Supplement, the journalist
confirmed the accusations with the victim. (See Kreuger Decl. ¶ 63; Marchman Decl. ¶¶ 19–20;
Chan Decl. ¶ 11). In drafting the Article, Krueger intended to “closely track the allegations made

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in the Supplement” (Krueger Decl. ¶ 57; see also id., Ex. 10, Krueger/Marchman Electronic
Correspondence 7); and in editing the Article, her editors intended to keep it a straightforward,
fair, and accurate report on the Supplement (see Defs.’ SOF ¶ 86). This evidence is unrebutted
and tends to show neither Krueger nor her editors intended to augment the credibility of the
accusations in the Supplement by attributing them to Jane Doe herself, rather than to Delgado.
Second, the Supplement actually states the journalist confirmed the allegations with Jane
Doe. 12 The Supplement states: “Journalist A confirmed the account directly with the victim
herself. Jane Doe’s instant reaction was: ‘Yes, that happened to me — how did you know? Who
told you?’” (Supplement 9 (emphasis omitted)). In addition to quoting from the Supplement itself,
the Article describes how Delgado obtained the information and summarizes the journalist’s
confirmation of the accusations with the victim. (See Article 4; Supplement 9). Thus, the phrase
“the woman claims” is a substantially accurate summary of what Jane Doe told the journalist,
according to the Supplement.
Third, in at least 19 instances, the Article makes clear its substance is based on “court
documents” or a “filing.” (Article; Krueger Decl. ¶ 66). Certainly the headline reads “Court Docs
Allege . . . .” (Article 2 (alteration added)). The repeated use of this language throughout the
Article conveys the source of the information is the Supplement — not Jane Doe. (See generally
Article).

12

Plaintiff asserts the Supplement’s description of the journalist’s interaction with Jane Doe does not
“confirm” the allegations against him, because Jane Doe does not state he is the perpetrator, but rather
merely confirms she was surreptitiously dosed with an abortion pill. (See Resp. 15). Even though Plaintiff’s
name is not in the quote from the victim, the Supplement states: “Journalist A confirmed what Mr. Miller
did to Jane Doe . . . .” (Supplement 10 (emphasis and alteration added)). And after the Article was
published, the journalist referred to in the Supplement wrote in a Twitter post: “the two women I spoke to
in Florida made these abuse claims against Mr. Miller which he denied to me directly.” (Krueger Decl.,
Ex. 17, Yashar Ali’s December 22, 2018 Twitter Posts [ECF No. 157-17]).

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Fourth, the Article is candid that Delgado obtained the information from a third party rather
than from a direct source. (See Article 4). The Article describes Delgado first learned of the story
from a man she met via Twitter, then found Jane Doe on Facebook, then relayed the allegations to
a journalist. (See id.). The Article further states the journalist “spoke with Jane Doe to confirm
details about the story.” (Id.). The Article does not state either Delgado or Krueger spoke to Jane
Doe directly to confirm the allegations. (See generally id.).
Fifth, the Article discloses Delgado’s potential biases. It states the Supplement was filed
in an “ongoing custody battle” between Plaintiff and Delgado that has “taken a nasty turn.” (Id.
2). It also describes Plaintiff and Delgado’s relationship as marked by “acrimony.” (Id. at 2, 4).
By disclosing this information, Defendants invite readers to decide for themselves whether
Delgado is credible. Thus, under Holy Spirit and its progeny, the phrase the “woman claims” does
not render the Article substantially inaccurate. See Holy Spirit, 49 N.Y.2d at 67–68.
Plaintiff relies on Easton v. Public Citizens, Inc., No. 91 Civ. 1639, 1991 WL 280688
(S.D.N.Y. Dec. 26, 1991), to support his argument “the woman claims” is ambiguous. (See Resp.
15). Curiously, Easton supports Defendants’ position. In Easton, the defendants published a
report describing an earlier-published Commission Report, which contained allegations the
plaintiff “violated Federal and State tax laws” and “fraudulently billed the Medicaid program.”
1991 WL 280688, at *1 (internal quotation marks omitted). Commenting on the Commission
Report, the defendants stated, “[t]hese cases [from the Commission Report] illustrate that it is
relatively easy to steal funds from public programs for people with serious mental illnesses.” Id.
(alterations added). The plaintiff — the doctor referred to in the Commission Report — alleged
the statement including the phrase “it is relatively easy to steal . . .” was defamatory. Id. at *1, 5
(alteration added). In granting defendants summary judgment, the court reasoned the allegations

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identified by the defendants involving Medicaid fraud and tax fraud were “form[s] of stealing”
and the defendants defined them as such in their report. Id. at *6 (alteration added). Thus, the
claim did “not need to go to trial to resolve any ambiguity in terminology.” Id.
Plaintiff fails to identify any ambiguous terminology or otherwise draw a connection to
Easton aside from citing to the general premise that a court should allow the factfinder to interpret
a phrase if the court identifies one as ambiguous. (See Resp. 15). As detailed above, the
undisputed material facts show the contested phrase is substantially accurate. 13
Plaintiff also argues this case “is squarely in line” with cases such as Karedes v. Ackerley
Group, Inc., and Pisani v. Staten Island University Hospital. (Resp. 12 (citing Karedes, 423 F.3d
at 119; and Pisani, 440 F. Supp. at 170)). 14 These cases stand for the proposition that a publication
may not imply conduct graver than that described in the underlying source. For instance, in
Karedes, the defendant published an article on a public town meeting which suggested the plaintiff,
the manager of a public golf course, caused the town to pay invoices for renovations which should
have been paid by another entity. See 423 F.3d at 115–16. The article failed to include the fact an
auditor clarified the town likely should have paid the invoices. See id. at 118. The court held “a
reasonable jury could conclude that the article suggest[ed] more serious conduct than actually
suggested in the official proceeding,” because the article suggested the plaintiff improperly spent

13

Plaintiff also cites Fine v. ESPN, Inc., No. 5:12-CV-0836, 2013 WL 528468 (N.D.N.Y. Feb. 11, 2013),
to support his contention the “woman claims” is ambiguous. (See Resp. 15). While the court in Fine stated
the general principle that questions of fact may remain “if the reports are ambiguous,” it granted the
defendants’ motion to dismiss, finding the articles were “fair and true reports and that no ambiguity”
existed. 2013 WL 528468, at *3.
14

Karedes and Pisani were decided on motions to dismiss, not on motions for summary judgment. See
Karedes, 423 F.3d at 110; Pisani, 440 F. Supp. 2d at 171.

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public funds, whereas the auditor indicated the opposite. Id. at 119 (citation and internal quotation
marks omitted; alteration in original).
Similarly, in Pisani, the defendants issued a press release regarding the settlement of a
Medicaid fraud complaint, stating “We deeply regret and are embarrassed by the misconduct
carried out by former executives of the Hospital that led to this settlement . . . .” 440 F. Supp. 2d
at 170. The court held a reasonable jury could find this statement was not a “fair and accurate”
report of the settlement agreement because defendants’ statement “admit[ed] the misconduct of
former executives,” whereas “the settlement explicitly deni[ed] admission of those allegations[.]”
Id. at 178 (alterations added). 15
Here, unlike in Karedes and Pisani, the statements in the Article do not depart from those
in the Supplement. The Supplement accuses Plaintiff of having an affair with and impregnating
“Jane Doe;” then slipping her an “abortion pill,” killing her unborn child without her consent.
(Supplement 2–3). The Article reports those exact allegations. (See Article 2–3). The Supplement
states a journalist “confirmed” the account with Jane Doe herself. (Supplement 9 (emphasis
omitted)). The Article states the same. (Article 4).
Plaintiff insists the Article is unfair and untrue, even if it does not imply graver misconduct,
because it gives greater credence to the accusations than does the Supplement. (See Resp. 12).
The only case Plaintiff cites to support this assertion is Holy Spirit. (See id. (citing Holy Spirit, 49
N.Y.2d at 67–68)).

Plaintiff quotes a portion of Holy Spirit reasoning the articles under

consideration were fair and true reports of intelligence documents because they did not give
“greater credence to those documents than was appropriate . . . .” 49 N.Y.2d at 67 (alteration
added). Holy Spirit supports Defendants’ position.

15

Plaintiff also cites cases that apply the laws of other jurisdictions. (See Resp. 13–14). These cases are
inapplicable because they do not interpret New York’s statutory fair report privilege.

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While Holy Spirit suggests an article can be unfair or inaccurate where it gives greater
credence to accusations than the underlying documents, the court ultimately held the articles were
substantially accurate even though they denoted “a sense of legitimacy which . . . could be
characterized as imprudent.” 49 N.Y.2d at 68 (alteration added). Here, as explained, the phrase
“the woman claims” does not give “greater credence” to the accusations than would a review of
the Supplement itself, which is embedded in the Article and which the reader is invited to consult.
And, as in Holy Spirit, even if the phrase did denote some “sense of legitimacy which, in hindsight,
could be characterized as imprudent,” id., that would not be enough to render the report unfair or
untrue.
2.

Second Alleged Inaccuracy

Plaintiff’s next alleged inaccuracy comes from the statement: “In an explosive new court
filing, Delgado’s legal team alleges . . . .” (Article 2 (alteration and emphasis added)). Plaintiff
argues the reference to “Delgado’s legal team” unfairly bolsters the credibility of the allegations
in the Supplement by suggesting the Supplement was vetted by a team of lawyers when in fact it
was filed by Delgado pro se. (See Resp. 17). Defendants disagree, insisting the phrase “Delgado’s
legal team” does not make the Article substantially inaccurate because the Article makes clear the
accusations are being made by Delgado and Delgado is an attorney. (See Mot. 11).
The Court agrees with Defendants. As noted, a report is substantially accurate under
section 74 “if, despite minor inaccuracies, it does not produce a different effect on the reader than
would a report containing the precise truth.” Nix, 772 F. App’x at 812 (citation and internal
quotation marks omitted). Courts have found articles to be “fair and true” reports of judicial
proceedings despite containing similar minor inaccuracies. For instance, in Abko Music, Inc. v.
William Sagan, Norton, LLC, the court found a press release constituted a “fair and true report” of

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a complaint even though the press release inaccurately stated the underlying lawsuit was filed by
the National Music Publishers’ Association (“NMPA”), instead of by several individual music
publishers. See No. 15 Civ. 4025 (ER), 2016 WL 2642224, at *4 (S.D.N.Y. May 6, 2016). The
court rejected the argument that “crediting NMPA with filing the lawsuit provides the lawsuit
greater legitimacy,” and explained “despite inaccurately attributing the lawsuit’s filing to NMPA,
the press release does not report conduct that is more serious than actually alleged” in the
complaint. Id.; see also Tacopina v. O’Keeffe, 645 F. App’x 7, 8 (2d Cir. 2016) (holding fair report
privilege barred the plaintiff’s defamation claim concerning drug-use allegations even though
newspaper “misattributed the source of the cocaine allegations.”).
Here, as in Abko, 2016 WL 2642224, at *4, the statement that the Supplement was filed by
“Delgado’s legal team” does not confer upon the filing “greater legitimacy” because whether the
Supplement was filed by a legal team or by Delgado (who is a lawyer) pro se does not alter the
overall effect of the Article. Either way, it is clear Delgado is the one making the accusations.
(See Krueger Decl. ¶ 80). And, as in Abko, the Article does not report conduct more serious than
alleged in the Supplement. See 2016 WL 2642224, at *4. Thus, the Article’s reference to
“Delgado’s legal team” does not render the Article unfair or untrue.
3.

Third Alleged Inaccuracy

Plaintiff argues the statement the Supplement was “obtained” by Splinter, coupled with the
statement Delgado confirmed its “authenticity,” improperly suggest Defendants independently
investigated the allegations in the Supplement. (See Resp. 17). It is no misstatement that Splinter
“obtained” the Supplement and verified its “authenticity.” It is undisputed that Krueger obtained
the Supplement from a source and confirmed its authenticity with Delgado prior to publishing the
Article. (See Defs.’ SOF ¶¶ 55–56, 82; Pl.’s SOF ¶ 82). These statements do not render the Article

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substantially inaccurate. See Holy Spirit, 49 N.Y.2d at 67 (rejecting the plaintiff’s argument use
of the word “confirmed” implies information in the document had been verified by independent
sources rendering the articles misleading).
4.

Fourth Alleged Inaccuracy

Fourth, Plaintiff argues the Article omits material facts from the Supplement that cast doubt
on the veracity of the allegations. These include: (1) the man Delgado met through Twitter said
the story was “unverified” by him; (2) a private investigator failed to confirm the accusations with
Jane Doe; and (3) the journalist referred to in the Supplement never published a story on the
accusations. 16 (See Resp. 17–18).
There is “no requirement that the publication report the plaintiff’s side of the controversy.”
Cholowsky, 887 N.Y.S.2d at 596 (citations omitted); see also Lan Sang v. Ming Hai, 951 F. Supp.
2d 504, 521 (S.D.N.Y. 2013) (same); Alf, 953 N.Y.S.2d at 800 (same); Biro v. Conde Nast, 883 F.
Supp. 2d 441, 478 (S.D.N.Y. 2012) (same). Thus, the omissions Plaintiff identifies do not render
the Article substantially inaccurate. See Holy Spirit, 49 N.Y. 2d at 67–68 (holding articles were
substantially accurate even though they did not disclose the unverified nature of the information).
The Court is further persuaded these omissions do not render the Article unfair or untrue
because, as discussed, it is undisputed the Article discloses Delgado obtained the information from
indirect sources (see Article 4), and the Supplement was filed in a contentious custody battle (see
id. 2). These details convey the biased nature of the accusations and invite the reader to
independently determine the credibility of the accusations. Additionally, it is undisputed the

16

Plaintiff also asserts the Article failed to disclose a confidential source told Krueger that Delgado is “kind
of nuts.” (Resp. 17–18). This statement is not in the Supplement, so the Article is not an unfair or inaccurate
report of the Supplement for failing to mention the source’s characterization of Delgado.

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Article embeds a full copy of the Supplement, which readers can review in full without leaving
the webpage. (See Defs.’ SOF ¶ 91).
The cases Plaintiff relies on are inapposite because they concern alleged omissions
implying graver misconduct than alleged in the underlying proceeding. See, e.g., Wenz v. Becker,
948 F. Supp. 319, 324 (S.D.N.Y. 1996) (holding a reasonable jury could find the article concerning
CEO’s termination was unfair or untrue because omitted facts created the false impression the
CEO altered the company’s financial statements); Bilinski v. Keith Haring Found., Inc., 96 F.
Supp. 3d 35, 49 (S.D.N.Y. 2015) (holding a reasonable jury could find press release was inaccurate
because it characterized the agreement between the parties as an agreement to remove “fake”
artwork, omitting the fact the agreement did not contain any admission by the organizers of the
exhibition that the removed works were inauthentic). As noted, the Article — which is embedded
in the Supplement for comparison — does not describe graver misconduct than the misconduct
appearing in the Supplement. In fact, by embedding the full Supplement, Defendants ensured they
would not omit any facts at all.
Taken together, the four alleged inaccuracies in the Article (“the woman claims,”
“Delgado’s legal team,” Krueger “obtained” the Supplement and verified its “authenticity,” and
the omissions) do not suggest Plaintiff engaged in graver misconduct than would a review of the
Supplement. Nor do the alleged inaccuracies cause the Article to “produce a different effect on
the reader than would a report containing the precise truth.” Nix, 772 F. App’x at 808 (citation
and internal quotation marks omitted). Instead, the undisputed material facts show the Article
“essentially summarize[s] or restate[s] the allegations” in the Supplement. Biro, 883 F. Supp. 2d
at 478 (citation and internal quotation marks omitted; alterations added). Accordingly, the Article

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falls within section 74’s absolute privilege and Defendants have shown they are entitled to a
summary judgment on their New York fair report privilege affirmative defense.
IV.

CONCLUSION

For the foregoing reasons, it is
ORDERED AND ADJDUGED that Defendants’ Motion for Summary Judgment [ECF
No. 155] is GRANTED. Final judgment will be entered by separate order. The Clerk is directed
to mark this case CLOSED, and all pending motions are DENIED as moot.
DONE AND ORDERED in Miami, Florida, this 27th day of August, 2019.

________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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