JUSTIN E. FAIRFAX v. CBS CORPORATION; CBS BROADCASTING INC.
No. 20-1298, No. 20-1299
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
June 23, 2021
Before KEENAN, QUATTLEBAUM, and RUSHING, Circuit Judges.
PUBLISHED; Argued: March 11, 2021; Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, Senior District Judge. (1:19-cv-01176-AJT-MSN)
ARGUED: Tillman J. Breckenridge, BRECKENRIDGE PLLC, Washington, D.C., for Appellant/Cross-Appellee. Jay Ward Brown, BALLARD SPAHR LLP, Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: Matthew E. Kelley, BALLARD SPAHR LLP, Washington, D.C., for Appellees/Cross-Appellants.
In April 2019, the television news program CBS This Morning broadcast interviews with two women who accused Justin Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax denied the allegations and subsequently sued CBS Corporation and CBS Broadcasting, Inc. (collectively, CBS) for defamation and intentional infliction of emotional distress. The district court granted CBS‘s motion to dismiss the complaint in its entirety but denied CBS‘s motion for attorney‘s fees and costs. The parties now appeal, and we affirm the district court in both respects. Specifically, 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. And the relevant fee-shifting statute by its plain terms is discretionary, not mandatory or presumptive. We therefore must affirm.
I.
The following facts, taken from Fairfax‘s amended complaint and the CBS broadcasts referenced therein, are assumed to be true for purposes of this appeal. See E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
National attention turned to Virginia Lieutenant Governor Justin Fairfax in February 2019, when it appeared that Virginia Governor Ralph Northam might resign after an offensive photograph from his medical school yearbook surfaced. Under Virginia law, the lieutenant governor replaces a sitting governor who resigns.
Shortly after the Northam photo surfaced, a news website published a private Facebook message written by Vanessa Tyson, alleging that someone poised to receive a
Two days later, Meredith Watson publicly alleged that Fairfax raped her in 2000 while they were undergraduate students at Duke University. Watson subsequently added that a Duke athlete had raped her during the 1998–1999 academic year and a Duke official had discouraged her from reporting it. According to Watson, at a campus party later in 2000 she asked Fairfax why he assaulted her, to which he responded, “I knew that because of what happened to you last year, you‘d be too afraid to say anything.” J.A. 82. Watson also called for hearings to investigate Fairfax‘s conduct.
Fairfax adamantly denied both women‘s allegations. Although he admitted that both sexual encounters occurred, he claimed they were entirely consensual and he did not force either woman to do anything. Needless to say, the allegations and Fairfax‘s response generated significant publicity.
The day Watson‘s story broke, Ed O‘Keefe, a CBS News Political Correspondent, was in contact with Fairfax‘s spokesperson. The spokesperson sent O‘Keefe a list of names and phone numbers, saying “Please Ed call these Duke grads.” O‘Keefe responded: “We
On April 1 and 2, CBS This Morning aired its interviews with Tyson and Watson, who were interviewed separately by host Gayle King. The April 1 broadcast featured Tyson‘s interview, during which she described in detail her allegation that Fairfax sexually assaulted her in his hotel room in 2004. King posed questions throughout the interview, including asking Tyson why she did not report the incident. Immediately after the recorded interview segments, King read from a statement Fairfax had given CBS denying the allegations. King directed viewers to Fairfax‘s full statement on CBS‘s website and stated, “[w]e are hoping that Lieutenant Governor Fairfax will speak to us at some point.” J.A. 145. Then King and her co-hosts shared their reactions to the interview, saying among other things, “I felt at some point it‘s almost like she‘s going back to the moment that she believed“; “[s]omething clearly changed when she was walking . . . through what transpired“; and “[y]eah, feels like she was forced.” J.A. 139–140. The co-hosts also observed, “that pain has stuck with them about how they felt in that moment and how it
The April 2 broadcast featured Watson‘s interview, in which she recounted her allegation that Fairfax raped her in a dorm room at Duke University in 2000 and later told her that he had done so because he knew, based on the sexual assault she suffered the previous year, that she would be too afraid to do anything about it. King again posed questions throughout the interview, including asking Watson about reports regarding her personal life that implicated her credibility. After the interview segments, King read from a statement Fairfax provided CBS denying the allegations. King also reported that, according to his spokesperson, Fairfax had taken a polygraph test that supported his denials. Regarding Watson‘s allegations about the Duke athlete, King reported that the athlete denied the allegations and Duke claimed to have first learned of them in February 2019. King noted that both Tyson and Watson sought a legislative hearing instead of a criminal investigation because they claimed investigation results could be kept private, whereas a hearing would be public.
In July 2019, Fairfax issued a public letter to a district attorney in North Carolina, alleging for the first time the existence of an eyewitness to the events underlying Watson‘s allegations. Shortly thereafter, Fairfax demanded that CBS retract the interviews, and CBS refused.
Fairfax then sued CBS in district court, asserting defamation and intentional infliction of emotional distress under Virginia law. CBS moved to dismiss the complaint for failure to state a claim and sought attorney‘s fees and costs. The district court granted
II.
“We review de novo the grant of a motion to dismiss for failure to state a claim,” applying the same standards as the district court. Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir. 2018) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
To state a claim for defamation under Virginia law, a plaintiff must plead (1) publication of (2) an actionable statement—that is, a statement that is both false and defamatory—with (3) the requisite intent. Schaecher v. Bouffault, 772 S.E.2d 589, 594 (Va. 2015) (quoting Tharpe v. Saunders, 737 S.E.2d 890, 892 (Va. 2013)); see also Va. Citizens Def. League v. Couric, 910 F.3d 780, 783 (4th Cir. 2018). The necessary intent “depends, in part, on whether a plaintiff is a public or private figure.” Jackson v. Hartig, 645 S.E.2d 303, 308 (Va. 2007); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–347 (1974); Curtis Pub. Co. v. Butts, 388 U.S. 130, 134 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 279–280 (1964). Because Fairfax is admittedly a public official, he may seek redress for the allegedly defamatory statements only if CBS published the statements with “actual malice.” New York Times, 376 U.S. at 279–280. “Actual malice” is a legal term of art; in this context, it does not mean ill will or intent to injure but rather that the defendant made the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id.; see also Harte-Hanks Commc‘ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989).
The freedom of speech guaranteed by the First and Fourteenth Amendments requires this heightened intent standard in defamation actions brought by public officials, the Supreme Court has reasoned, “to insure the ascertainment and publication of the truth about public affairs.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968); see also CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008). Defamatory falsehoods are of no social value, yet we must tolerate and even shield some erroneous publications in the realm of public affairs because “the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.” St. Amant, 390 U.S. at 731–732; see also New York Times, 376 U.S. at 279 (“A rule compelling the critic of official conduct to guarantee the truth of all his
Only a knowing or reckless falsehood, therefore, will provide grounds for a public official to seek compensation for defamation. Accordingly, “[a]ctual malice is a subjective standard.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714 (4th Cir. 1991) (en banc); see also Horne v. WTVR, LLC, 893 F.3d 201, 211 (4th Cir. 2018). A plaintiff must prove that the defendant published the statement despite actually knowing it was false or harboring “a ‘high degree of awareness of . . . probable falsity.‘” Reuber, 925 F.2d at 714 (alteration in original) (quoting Garrison, 379 U.S. at 74). This standard “requires ‘much more than a failure to exercise ordinary care.‘” Hatfill v. New York Times Co., 532 F.3d 312, 325 (4th Cir. 2008) (quoting Ryan, 634 F.2d at 732). Recklessness “is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant, 390 U.S. at 731; see also CACI Premier Tech., 536 F.3d at 300. Rather, a plaintiff must prove that “the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 731. Of course, here we review a motion to dismiss; the evidence is not yet in. We accordingly must evaluate whether
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. Garrison, 379 U.S. at 74; see also Hatfill, 532 F.3d at 325. Fairfax attempts to meet this standard with allegations intended to show that CBS failed to investigate the women‘s accounts despite reason to question their credibility. “Failure to investigate does not in itself establish bad faith.” St. Amant, 390 U.S. at 733; see also Harte-Hanks, 491 U.S. at 688 (“[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.“). However, failure to investigate before reporting a third party‘s allegations can be reckless “where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Harte-Hanks, 491 U.S. at 688 (quoting St. Amant, 390 U.S. at 732); see also id. at 692 (“Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category.” (internal citation omitted)); CACI Premier Tech., 536 F.3d at 300.
Regarding Watson‘s account, Fairfax alleges: King did not ask Watson the interview questions provided by Fairfax‘s spokesperson; O‘Keefe did not get information from the Duke friends whom Fairfax‘s spokesperson identified, including the CBS lawyer on the list; CBS knew Duke University denied being aware before February 2019 of Watson‘s allegation of rape by a Duke athlete; and CBS knew that Watson (and Tyson) wanted a public hearing instead of a law enforcement investigation. These allegations do
Fairfax places great emphasis on the list of Duke friends his spokesperson supplied CBS and the suggestion that King should ask Watson whether she saw “anyone else on [her] way in or out” the evening of the alleged assault. According to Fairfax, the eyewitness to his encounter with Watson was on the list provided to CBS, and the CBS attorney on the list was aware of the eyewitness. If CBS had interviewed either person or had asked Watson whether anyone else was present during the alleged assault, Fairfax claims CBS would have discovered the truth. Critically, however, Fairfax did not disclose the existence of the eyewitness until July, months after CBS broadcast Watson‘s interview. Nor does he allege that the journalists responsible for the CBS This Morning broadcast knew about the
Nor does CBS‘s alleged refusal to correct or retract its story after Fairfax‘s subsequent revelation push his actual malice claim over the line of plausibility. The actual malice standard requires that “the defendant had a particular, subjective state of mind at the time the statements were made.” Horne, 893 F.3d at 211; see New York Times, 376 U.S. at 286 (assessing malice “at the time of the publication“). CBS‘s alleged post-publication conduct here is not probative of its state of mind at the time of publication, before it was aware of the alleged eyewitness.
Finally, Fairfax also alleges: CBS did not inform him about the interviews or request his response to them; CBS had motive to show itself sympathetic to allegations of sexual assault after CBS personalities had been accused of sexual misconduct; and CBS
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. St. Amant, 390 U.S. at 731. Fairfax vigorously disputes the accusations made by Tyson and
Because Fairfax has not sufficiently alleged actual malice, he has failed to state a claim for defamation and we need not consider the other elements of this cause of action, including defamatory meaning. And as Fairfax acknowledges, our analysis of his failure to sufficiently plead actual malice applies equally to his claim for intentional infliction of emotional distress. See Russo v. White, 400 S.E. 2d 160, 162 (Va. 1991) (listing the elements of a claim for intentional infliction of emotional distress in the absence of a “tactile tort“); Hatfill, 532 F.3d at 325–326; cf. Harte-Hanks, 491 U.S. at 667; Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988).
III.
We turn now to CBS‘s cross-appeal of the district court‘s denial of its request for attorney‘s fees. The district court held that CBS sufficiently established its entitlement to statutory immunity under
The Supreme Court of Virginia has not interpreted
CBS contends that although
First, the attorney‘s fees provision of D.C.‘s anti-SLAPP law provides that a court “may award” fees to a prevailing defendant but “may award” fees to a prevailing plaintiff “only if the court finds that [the] motion [to dismiss or quash] is frivolous or is solely
Second, the D.C. fee statute applies only to special motions to quash or dismiss at a preliminary stage of the litigation. See
CBS‘s comparison to Title VII similarly fails to support its cause. Although a prevailing Title VII plaintiff is presumptively entitled to recover attorney‘s fees, a prevailing defendant may recover fees only if the plaintiff‘s action “was frivolous, unreasonable, or groundless.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). A defamation defendant entitled to anti-SLAPP immunity under Virginia law is not in the same position as a prevailing Title VII plaintiff.
Seeing no reason to embellish the plain language of Virginia‘s statute, we conclude that
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For the foregoing reasons, the judgment of the district court in these consolidated appeals is
AFFIRMED.