The Richmond-based 4th U.S. Circuit Court of Appeals on Wednesday upheld the dismissal of the defamation case filed by Lt. Gov. Justin Fairfax against CBS.
Fairfax filed the defamation complaint in 2019 against CBS Corp. and CBS Broadcasting, alleging the network published false statements by two women who have accused him of sexual assault.
“Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official,” wrote Judge Allison Jones Rushing for the unanimous, three-judge panel of the court.
Lauren Burke, a spokesperson for Fairfax, wrote in a text to the Richmond Times-Dispatch on Wednesday that “the latest court decision affirms that a news organization can broadcast false and defamatory stories, make statements vouching for the truth of false allegations, have available knowledge of falsity including an exonerating witness and go silent and refuse to update its reporting — for years in this case — when information is presented that the allegations are not true.”
“No news organization should be able to present false information that destroys someone’s reputation while remaining willfully blind to a truth that does not fit its narrative. ... Mr. Fairfax will continue to clear his name,” Burke wrote.
In April 2019, the show “CBS This Morning” broadcast interviews with Vanessa Tyson, a college professor, who accused Fairfax of forcing her to perform oral sex in a Boston hotel room in 2004, and Meredith Watson, who accused Fairfax of raping her while the two were students at Duke University in 2000.
The women made the allegations public when Gov. Ralph Northam faced pressure to resign over a scandal related to a racist photo on his 1984 medical school yearbook page. Had Northam resigned, Fairfax would have become governor. Fairfax, a Democrat, was positioning himself for a run for governor this year.
Fairfax denied the allegations and said both situations were consensual. His suit called the allegations a “political hit job — a deliberate and calculated effort to permanently harm Fairfax’s political and professional career and to attempt to prevent him from becoming governor of Virginia.”
U.S. District Judge Anthony J. Trenga of Alexandria dismissed the suit, and the appeals court upheld his decision Wednesday.
Rushing wrote, “Fairfax does not allege that CBS broadcast the April 1 and 2 programs actually knowing that either Tyson’s or Watson’s allegation of sexual assault was false. To plead actual malice, therefore, Fairfax must plausibly allege that CBS aired the broadcasts with a ‘high degree of awareness’ that Fairfax likely did not sexually assault Tyson or Watson.”
“At bottom, the factual allegations in Fairfax’s amended complaint fall considerably short of plausibly alleging that CBS broadcast its April 1 and 2 ‘CBS This Morning programs’ despite entertaining ‘serious doubts as to the truth’ of those broadcasts,” Rushing added.
The opinion noted, “Fairfax vigorously disputes the accusations made by Tyson and Watson, and we express no opinion on the truth or falsity of their claims. But even accepting Fairfax’s version of events, he has alleged nothing to suggest that CBS reported the women’s stories with knowledge or reckless disregard of their falsity.”
Carl Tobias, a professor at the University of Richmond School of Law, said this result “is not surprising because the U.S. Supreme Court has imposed the actual malice requirement in this context, which is a difficult standard for a plaintiff to meet.”
Tobias said that Fairfax has two ways to appeal Wednesday’s ruling: by asking for the full appeals court to reconsider the case or appealing to the U.S. Supreme Court.
Both avenues would be long shots, he said. The 4th Circuit agrees to rehear five or six cases a year and the U.S. Supreme Court takes roughly 100 of the 7,000 to 8,000 cases it is asked to consider.