Virginia’s lieutenant governor is asking the appeals court to reinstate his defamation lawsuit over the network’s exclusive interviews with women who accused him of sexual assault.
RICHMOND, Va. (CN) — Arguing a CBS interview inflated and endorsed two women’s claims that Virginia Lieutenant Governor Justin Fairfax sexually assaulted them, his lawyer told an appeals panel Thursday the official’s libel suit was wrongly tossed out.
“CBS did not just report the false allegations of rape and sexual assault against Justin Fairfax. It heavily promoted direct interviews resurrecting false allegations, two months after they were made,” Fairfax’s attorney Tillman Breckenridge said before the Fourth Circuit at a remote hearing Thursday.
Last year, U.S. District Judge Anthony Trenga dismissed the suit in question, in which Fairfax sued CBS for $400 million after it aired exclusive interviews by Gayle King with Vanessa Tyson and Meredith Watson. Both women shared personal stories alleging Fairfax sexually assaulted them in the early 2000s. Tyson said that Fairfax assaulted her in 2004 at the Democratic National Convention in Boston, and Watson claimed Fairfax raped her in 2000 when they were both students at Duke University.
Attorney Jay Brown of Ballard Spahr argued for CBS Thursday that the station did provide both sides of the story.
“Across the bottom of the screen while the women are speaking, they are referred to as ‘accusers,’” Brown said Thursday, adding that Fairfax’s statement that the encounters were consensual was also quoted in writing on the screen.
While Fairfax has maintained both encounters were consensual, each woman said they only consented at the beginning of the sexual interactions. The lieutenant governor has alleged the network’s coverage of the allegations insinuated he was guilty and said his libel lawsuit is a way to prove his innocence.
U.S. Circuit Judge Allison Rushing, a Donald Trump appointee, questioned Breckenridge Thursday about his client’s defamation claims.
“You have to plead actual malice, plausibly,” Rushing told the lawyer, “which means you have to plead that there was knowledge of falsity or that they were reckless, and disregarding falsity.”
U.S. Circuit Judge Barbara Keenan, a Barack Obama appointee, also questioned whether Fairfax’s case showed the network had displayed reckless disregard.
“CBS had to have reasons to believe that the information provided by Wilson and Tyson was false,” Keenan explained.
“I disagree with the premise that there has to be some proof beyond their purposeful avoidance of the truth,” Breckenridge said, adding that CBS’s reckless negligence could be proven if the case is permitted to proceed to discovery.
Keenen then latched on to one of Breckenridge’s issues with the CBS commentary: “This Morning” co-host Norah O’Donnell’s reaction to Tyson’s story, in which the commentator said that it “feels like [Tyson] was forced.”
“I agree with you that the commentary was kind of unsettling,” Keenan told Breckenridge, but said the “overall presentation” wasn’t one-sided.
“The inference of whether or not they did present both sides in a fair way is really a jury question,” Breckenridge said.
Keenan later asked Brown to explain why the commentator’s description of the encounter as “forced” shouldn’t go to a jury.
“It’s kind of outside…the typical presentation [of sexual assault claims], isn’t it?” she asked the CBS attorney.
“A reasonable construction of that is that Ms. O’Donnell was simply repeating the statement by Ms. Tyson, that she felt forced that this encounter at one point became non-consensual,” Brown explained.
He added, “The comments, which are in direct response and follow a tear-filled…explanation of what that woman contends, are comments that can be understood as sympathetic reactions with the emotion being displayed.”
Tyson and Watson first came forward with their allegations in February 2019, shortly after Virginia’s Democratic Governor Ralph Northam, Fairfax’s running partner, was besieged by criticism over a blackface photo next to several other photos of him in his yearbook. If Northam would have resigned, Fairfax would have replaced him as governor and become the only African American governor in the country. Both officials have remained in office despite the scandals.
U.S. Circuit Judge Marvin Quattlebaum, another Trump appointee, rounded out the panel.