Where Justin Fairfax, the Virginia lieutenant governor, failed to plead facts plausibly suggesting that CBS aired reports of two women who accused him of sexual assault with a “high degree of awareness” that he likely did not assault them, his defamation and intentional infliction of emotional distress claims were properly dismissed.
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. 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.
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.” 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.
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.” 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.”
Fairfax claims CBS had obvious reasons to doubt Tyson’s and Watson’s veracity and yet failed to investigate their accusations or shielded itself from the truth. But the amended complaint fails to allege facts that make these contentions plausible. He has not alleged that CBS had any reason, at the time of the alleged defamatory statements, to believe that an eyewitness existed or to understand the significance of asking whether Watson saw anyone else that evening. 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.
Finally, Fairfax also alleges that 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 “resurrected” the stories two months after the allegations were first made. Even considered together with the aforementioned allegations, these assertions fail to support Fairfax’s claim of actual malice.
Because Fairfax has not sufficiently alleged actual malice, he has failed to state a claim for defamation and the court need not consider the other elements of this cause of action, including defamatory meaning. And as Fairfax acknowledges, this court’s analysis of his failure to sufficiently plead actual malice applies equally to his claim for intentional infliction of emotional distress.
The district court held that CBS sufficiently established its entitlement to statutory immunity under Virginia Code Ann. § 8.01-223.2, Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute. The district court reasoned that an award pursuant to this provision is permissive, not mandatory or presumptive, and denied CBS’s fee request because Fairfax’s allegations were not frivolous or made in bad faith. CBS appeals only the district court’s interpretation of the statute.
Section 8.01-223.2(B) states that a prevailing defendant “may” be awarded attorney’s fees, and the Supreme Court of Virginia has consistently treated the word “may” as “prima facie permissive, importing discretion.” By contrast, in other statutes the Virginia legislature had made an attorney’s fee award mandatory through use of the word “shall.” Seeing no reason to embellish the plain language of Virginia’s statute, the court concludes that § 8.01-223.2(B) permits, but does not require, a court to award attorneys’ fees to a prevailing defendant and does not create a presumption in favor of a fee award.
Fairfax v. CBS Corp., Case Nos. 20-1298, 20-1299, June 23, 2021. 4th Cir. (Rushing), from EDVA at Alexandria (Trenga). Tillman J. Breckenridge for Appellant/Cross-Appellee. Jay Ward Brown for Appellees/Cross-Appellants. VLW 021-2-239. 19 pp.