A recently filed defamation lawsuit in Cuyahoga County illustrates the stakes of making accusations against a political candidate. Max Miller, a Congressman from Ohio’s 7th Congressional District, filed a defamation lawsuit against his ex-wife and her attorney over statements she made about their tumultuous marriage and the ensuing divorce.
Congressman Miller married Emily Moreno (the daughter of Ohio Senator Bernie Moreno) in 2022. They had their only child in November 2023. Sadly, things didn’t work out, and they filed for divorce in August 2024.
According to Congressman Miller’s complaint, Moreno lodged “multiple allegations in the custody litigation, all of which are entirely unfounded.” The complaint also alleges that, in addition to the allegations in the litigation, Moreno “engaged in a defamatory campaign against Plaintiff to malign his character, undermine his odds at re-election to Congress, and falsely portray him as a violent and abusive father and husband.”
According to the complaint, Moreno and her law firm, Zashin and Zashin, “for the strategic purpose of seeking their ’15 minutes of fame,'” published false and defamatory statements on their website. The statements that really got under Miller’s skin were Moreno’s contention that Miller hurled boiling water on her in front of their minor daughter and later sent her a handwritten letter apologizing for the incident.
Miller denies that the incident occurred and denies that he apologized for anything. Word of the statements got out and have now been published by The Daily Mail, The New York Post, The Daily Beast and Yahoo! News.
The lawsuit illustrates a dichotomy in defamation law. That is, it matters not only what you say, but where you say it. Parties to a lawsuit are “privileged” to make allegations − even allegations later proven false − in a lawsuit. That means that, absent truly extraordinary circumstances, parties or witnesses in litigation aren’t subject to defamation liability based on those statements.
This is why Miller alleges in his defamation complaint, “Moreno’s false and defamatory statements are entirely extrajudicial, designed to deliberately destroy Plaintiff’s reputation, and were completely unnecessary to any claim or defense that she had raised or intended to raise in the custody litigation.” The term “extrajudicial” means outside of a court proceeding.
Miller’s complaint also notes, “Moreno has never made the boiling water allegation against Plaintiff in the custody litigation between the parties.” If this allegation is true, it means that the statement must have been made outside the courtroom.
Public figures face a much higher legal bar
Aside from this technicality, Miller may still have an uphill battle. As a public figure, he’ll need to establish “actual malice,” meaning Moreno made the statements knowing they were false.
He’ll also have to overcome the “opinion” defense. To the extent he’s complaining about general statements − that he is “abusive,” for example − he’s likely to lose. Courts typically give considerable leeway to statements made about political candidates. That’s why Miller’s complaint stresses the specific allegation that he threw boiling water on Moreno. But even that allegation may not be enough. Moreno may (and likely will) contend her statements are “substantially true.”
This theory provides that even if specific details are incorrect, if the “gist” is accurate, the plaintiff can’t establish falsity. Here, for example, Moreno could prove that Miller committed other abusive acts, such that the “gist” − that he was abusive − is true.
Miller should also be careful what he wishes. The lawsuit will permit Moreno to conduct “discovery.” It’s possible that once Moreno seeks documents and witness statements, an even darker truth will emerge.
I’m just not sure that juice is worth the squeeze here.
Jack Greiner is a Cincinnati attorney. He represents Enquirer Media in First Amendment and media issues.
This article originally appeared on Cincinnati Enquirer: Dirty pool or politics as usual? | Strictly Legal
Reporting by Jack Greiner, Special to The Enquirer / Cincinnati Enquirer
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