Fairfax v. CBS Corp.

• Decision Date: 23 June 2021
• Docket Number: No. 20-1299,No. 20-1298,20-1298
• Citation: 2 F.4th 286
• Parties: Justin E. FAIRFAX, Plaintiff - Appellant, v. CBS CORPORATION; CBS Broadcasting Inc., Defendants - Appellees. Justin E. Fairfax, Plaintiff - Appellee, v. CBS Corporation; CBS Broadcasting Inc., Defendants - Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

2 F.4th 286

Justin E. FAIRFAX, Plaintiff - Appellant,

v.CBS CORPORATION; CBS Broadcasting Inc., Defendants - Appellees.

Justin E. Fairfax, Plaintiff - Appellee,

v.CBS Corporation; CBS Broadcasting Inc., Defendants - Appellants.

No. 20-1298

No. 20-1299

United States Court of Appeals, Fourth Circuit.

Argued: March 11, 2021

Decided: June 23, 2021

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.

Before KEENAN, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Keenan and Judge Quattlebaum joined.

RUSHING, Circuit Judge:

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. Va. Const. art. V, § 16.

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 "VERY BIG promotion" in Virginia had sexually assaulted her at the 2004 Democratic National Convention. J.A. 72. National mainstream media outlets reported the allegation the next day, including The Washington Post , which noted that it could not corroborate Tyson's allegation. On February 6, Tyson issued a public statement asserting that Fairfax was the man who sexually assaulted her in 2004. She alleged that what began as a consensual encounter turned into sexual assault when Fairfax forced her to perform a sex act against her will. Tyson called for Fairfax to resign his position as lieutenant governor and for the Virginia General Assembly to conduct a hearing into the matter.

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 are calling the friends and nobody is answering. Urge them to call back." J.A. 85. O'Keefe also noted that one of the individuals was apparently an attorney for CBS. Over the following days and weeks, CBS reporting staff were in regular contact with Fairfax's spokesperson and were highly responsive to her outreach. After learning that CBS intended to broadcast interviews with Tyson and Watson, Fairfax's spokesperson contacted CBS journalist Gayle King, urging her to ask Watson questions such as, "What exactly happen[ed] that day, where, when, did you see anyone else on your way in or out?" and "Why are you willing to speak in public but not speak to the Durham police/DA regarding two rape allegations[?]" J.A. 92–93.

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 has affected them now for decades" and "we have now seen example after example of how it is as real as if it happened yesterday." J.A. 145–146.

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 the motion to dismiss and denied the motion for fees. Both parties appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also Fed. R. Civ. P. 12(b)(6). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Conclusory statements and facts "merely consistent with a defendant's liability" do not suffice to carry a complaint over "the line between possibility and plausibility." Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). In evaluating a complaint at this stage, a court also may consider documents integral to and relied upon in the complaint, such as the two CBS This Morning broadcasts at issue here, so long as the plaintiff does not question their authenticity, which Fairfax does not. Phillips v. LCI Int'l, Inc. , 190 F.3d 609, 618 (4th Cir. 1999).

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 , 290 Va. 83, 772 S.E.2d 589, 594 (2015) (quoting Tharpe v. Saunders , 285 Va. 476, 737 S.E.2d 890, 892 (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."...