Fairfax v. CBS Broad. Inc.
| Decision Date | 11 February 2020 |
| Docket Number | Civil Action No. 1:19-cv-01176 (AJT/MSN) |
| Citation | 534 F.Supp.3d 581 |
| Parties | Justin FAIRFAX, Plaintiff, v. CBS BROADCASTING INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Sara Elizabeth Kropf, Kropf Moseley PLLC, Washington, DC, for Plaintiff.
Jay Ward Brown, Matthew E. Kelley, Ballard Spahr LLP, Washington, DC, for Defendants.
On April 1, 2019 and April 2, 2019, CBS This Morning , a morning news program, broadcast to a national audience interviews of two women who accused Plaintiff Justin Fairfax ("Fairfax") of separate sexual assaults, one in 2000 and the other in 2004. Based on these broadcasts, Fairfax, the currently serving Lieutenant Governor of Virginia, has sued Defendants CBS Corporation and CBS Broadcasting Inc. (collectively, "CBS") for defamation and intentional infliction of emotional distress.
In response to the Amended Complaint,1 Defendants have filed the pending Motion to Dismiss [Doc. 16] (the "Motion to Dismiss") and Motion for Attorney's Fees and Costs [Doc. 19] (the "Motion for Fees"). As discussed below, Fairfax has not plausibly alleged that CBS engaged in actionable defamation or published the challenged broadcasts with "actual malice" or that CBS intentionally inflicted emotional distress. The Motion to Dismiss is therefore GRANTED ; and this action is DISMISSED. The Motion for Fees pursuant to Va. Code Ann. § 8.01-223.2 is DENIED .
The following facts, taken from the Amended Complaint and the referenced broadcasts, are assumed true for purposes of this Order.2 See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
On February 1, 2019, a photograph from Virginia Governor Ralph Northam's medical school yearbook page surfaced, purportedly showing Governor Northam dressed as either a white man in blackface or as a Ku Klux Klansman. Am. Compl. ¶ 54. Immediately after the photo's release, national attention turned to Justin Fairfax, who, as the sitting Lt. Governor of Virginia, elected to that statewide office in November 2017, is the next in line to ascend to the governorship should Governor Northam resign, thereby becoming only the second African-American governor in state history. Id. ¶¶ 50, 58-59.
On the Sunday immediately after the yearbook picture surfaced, a conservative news website, "Big League Politics," published a private Facebook message, purportedly written by Vanessa Tyson ("Tyson"), in which Tyson states that someone poised to receive a "VERY BIG promotion" in Virginia had assaulted her at the 2004 Democratic National Convention in Boston. Id. ¶ 60. The following Monday, The Washington Post first reported the allegation, although the Post noted at that time that it "could not find anyone who could corroborate" Tyson's allegations.3 Id. ¶ 61.
Three days later, on Wednesday, February 6, 2019, Tyson publicly stated that Fairfax sexually assaulted her in 2004. In a statement published through her lawyer, Tyson wrote that the encounter involved "consensual kissing" and that Fairfax's advances were, at first, "not unwelcome."
Id. ¶ 71. But in that same statement, Tyson added:
What began as consensual kissing quickly turned into a sexual assault. Mr. Fairfax put his hand behind my neck and forcefully pushed my head towards his crotch. Only then did I realize that he had unbuckled his belt, unzipped his pants, and taken out his penis. He then forced his penis into my mouth. Utterly shocked and terrified, I tried to move my head away, but could not because his hand was holding down my neck and he was much stronger than me. As I cried and gagged, Mr. Fairfax forced me to perform oral sex on him. I cannot believe, given my obvious distress, that Mr. Fairfax thought this forced sexual act was consensual. To be very clear, I did not want to engage in oral sex with Mr. Fairfax and I never gave any form of consent.
Fairfax does not dispute that he had a sexual encounter with Tyson at the 2004 Democratic National Convention. Instead, Fairfax alleges that on July 28, 2004, after knowing each other for less than 24 hours, Tyson agreed to join Fairfax in his hotel room at the Democratic National Convention; on that evening, Tyson and Fairfax engaged in consensual sexual activity in Fairfax's hotel room; throughout that encounter, Tyson unambiguously manifested her consent to engage in consensual sexual activity; Fairfax did not force Tyson to do anything; Tyson did not indicate that Fairfax forced her to do anything; Tyson did not cry, gag, or choke while in Fairfax's hotel room, as Tyson alleged in her interview broadcasted by CBS; Tyson stayed in Fairfax's hotel room following the sexual encounter; and, contrary to Tyson's statements in her CBS interview, Tyson and Fairfax remained in touch in the weeks following their consensual sexual encounter and never indicated to Fairfax that the sexual encounter on July 28 was not consensual. Id. ¶¶ 38, 40-44, 46, 84d.-h.
Days after the Tyson story broke, Meredith Watson ("Watson"), through her attorney, sent a letter to Fairfax's legal counsel alleging that Fairfax had raped Watson in 2000 while both were undergraduate students at Duke University. Id. ¶ 85. In that letter, dated February 8, 2019, Watson's attorney called for Fairfax's resignation as Lt. Governor of Virginia and demanded that Fairfax respond by 3:00 p.m. that same day, implying that she would go public with her allegation unless Fairfax formally resigned as Lt. Governor. Id. Fairfax's counsel did not respond to the letter and Fairfax did not resign; and later that afternoon, Watson publicly announced that she had been raped by Fairfax in 2000 while both were Duke University undergraduate students. Id. ¶ 86. In that account, Watson alleged that in the spring 2000 at the Alpha Phi Alpha fraternity house on Duke's campus, Watson was sexual assaulted by Fairfax. Id. ¶ 87. Watson did not mention that anyone else was in the room. Id. ¶ 88. Watson later supplemented the statement by indicating that, at a later encounter with Fairfax in 2000, Fairfax stated that he knew he could assault her without risk because he knew that she had been raped the previous year by a Duke athlete. Id. ¶¶ 89-90.
Fairfax does not dispute that he and Watson had a sexual encounter in 2000 at Duke University. Id. ¶ 26. Instead, Fairfax claims that Watson initiated the sexual encounter with him in 2000; there was an eyewitness in the room during the entire encounter, which Watson omitted in her interview broadcasted by CBS; throughout the entire sexual encounter, Watson "unambiguously" manifested her consent to the sexual activity; afterwards, Fairfax left the room, with Watson remaining in the room with the eyewitness; Watson never indicated to Fairfax at any time that the spring 2000 encounter was not consensual; the alleged conversation between Watson and Fairfax, at a unspecified campus party later that semester, never occurred; and an eyewitness, who remains friends both with Fairfax, as well as a current lawyer for CBS, discussed the encounter with Fairfax after Watson's initial February 2019 statements. Id. ¶¶ 22-34, 93.
On February 8, 2019, the day the Watson story broke, Ed O'Keefe, a CBS News Political Correspondent investigating the Fairfax allegations, was in contact with Fairfax's spokesperson, who had sent him a list of names and phone numbers, saying, "Please Ed call these Duke grads." Id. ¶ 107. The spokesperson also urged O'Keefe to "Please [d]o reporting and don't rush it" (sic). Id. O'Keefe was unable to make contact with the named persons on that list and urged Fairfax, and his team, to ask these individuals to return his calls. Id.
On April 1, 2019 and April 2, 2019, nearly two months after both women's allegations first surfaced, CBS, during it morning news program CBS This Morning , broadcast segments of its interviews with Tyson and Watson to a national audience. Id. ¶ 1. During these separate interviews, both women, both interviewed by CBS This Morning host Gayle King, accused Fairfax of sexual assaults against them. Id. Fairfax declined CBS’ requests for a similar interview with him. See [Doc. 17, Ex. 6 at 3].
In its April 1, 2019 broadcast with Tyson, Tyson recalls in detail what she claims happened to her in Fairfax's hotel room in 2004. See [Doc. 17, Exs. 3, 5, 7]. She states, in relevant part:
Id. , Ex. 4 at 4. After this segment of the recorded interview, King states on air from the studio:
Now, Lt. Gov. Fairfax responded to the accusations. In a statement to CBS News, he says this:
Id. , Ex. 4 at 7. Thereafter, King and her CBS This Morning co-hosts shared their reactions:
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