Defamation / Reputation
Johnson v. Steele
On Appeal Expands Expression
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A District Court in Virginia dismissed a defamation suit brought by Lt. Governor Justin Fairfax against CBS Broadcasting Inc. (CBS). On April 1 and 2, 2019, CBS’s morning news program This Morning, broadcast to a national audience interviews of two women who accused Fairfax of separate sexual assaults, one in 2000 and the other in 2004. The interviews were broadcast immediately after the calls for the resignation of the Governor of Virginia, Ralph Northam, when media outlets began to report about a photograph on Governor Ralph Northam’s medical school yearbook page that showed a white man in blackface makeup and another person dressed as a Ku Klux Klansman. Fairfax alleged two causes of action against CBS, namely of defaming his reputation and damaging his chances of successfully becoming a governor, and of intentional infliction of emotional distress by falsely portraying him as a ‘rapist, sexual abuser and a predator’ in their interviews. The District Court granted CBS’s motion to dismiss the suit, weighing the facts and inferring that CBS’s statements were not defamatory and that the defendant acted without actual malice. The complaint is currently pending appeal before the United States Court of Appeals for the Fourth Circuit.
The plaintiff, Justin Fairfax, is the Lieutenant Governor of Virginia elected to the state-wide office in November 2017. National attention turned towards Fairfax in February, 2019 in response to calls for the resignation of the Governor of Virginia, Ralph Northam, when media outlets began to report about a photograph on Governor Ralph Northam’s medical school yearbook page that showed a white man in blackface makeup and another person dressed as a Ku Klux Klansman. Under Virginia law, the lieutenant governor replaces a sitting governor who dies or resigns. Amidst the outcry for resignation of the Governor, Fairfax alleged that he was poised to ascend to the Governorship of Virginia in the wake of the Northam photo scandal.
Days after the Northam controversy, the on-line publication that had published the Northam yearbook photo reported, based on a Facebook post by a victim, that Fairfax was accused of sexually assaulting a woman at the Democratic National Convention in Boston in 2004. The Washington Post also published the article hours later, reporting the allegation of sexual assault while also noting that it was unable to corroborate the allegations from the victim.
On February 6, Vanessa Tyson, a professor at Scripps College, identified herself as the accuser and released a statement about the encounter with Fairfax, noting that the incident involved ‘consensual kissing’ which subsequently turned into sexual assault. Relevant excerpts of her statement are:
“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.”
Tyson noted that she had made the Facebook post on which the original news reports of her accusation were based after learning about the Northam controversy and the possibility that Fairfax could become governor. While Fairfax did not dispute that he had the sexual encounter with Tyson on July 28, 2004, he denied any forceful sexual activity or absence of consent.
Later on February 8, 2019, a second woman, Meredith Watson, accused Fairfax of raping her in the spring of 2000 when both were students at Duke University. Fairfax did not dispute this sexual encounter either, but claimed that it was initiated by Watson and was consensual. Watson later supplemented her statement by indicating that Fairfax knew he could assault her without risk because he knew she was raped the previous year by another athlete. Relevant part of the statement (in the amended complaint) from Watson’s lawyers is reproduced below:
“Mr. Fairfax then used this prior assault against Ms. Watson, as he explained to her during the only encounter she had with him after the rape. She left a campus party when he arrived, and he followed her out. She turned and asked, “Why did you do it?” Mr. Fairfax answered: “I knew that because of what happened to you last year, you’d be too afraid to say anything.””
Two months after the wide national news coverage surrounding the allegations, on April 1 and April 2, 2019, Gayle King, co-host of CBS show This Morning, broadcast interviews with Tyson and Watson to a national audience. During these separate interviews, both women accused Fairfax of sexual assaults against them and recounted their encounters. The day after CBS broadcast King’s interview with Watson, Fairfax read a statement to journalists where he confirmed that he had taken a polygraph test regarding the women’s allegations, which he claimed to have passed.
On June 12, Fairfax released letters which urged the prosecutors in Massachusetts and North Carolina to investigate Tyson’s and Watson’s allegations and proclaimed his innocence again. On July 9, he alleged for the first time that there was an eyewitness to the events underlying Ms. Watson’s allegation. He claimed that the CBS’ associate general counsel on litigation, who is a former boyfriend of Watson and a fraternity brother to both Fairfax and the alleged eyewitness, knew that an eyewitness was in the room throughout the encounter but was unable to prevent CBS from airing the Watson interview. On similar lines, Fairfax also claimed that CBS had a preconceived narrative in pursuing the interviews and the allegations against him.
In light of CBS’s airing of the accusations and its refusal to do anything to rectify the damage it had done, Fairfax filed a suit in the District Court of Virginia. He alleged two causes of action against CBS, namely of defamation and of intentional infliction of emotional distress. On first count, he claimed that CBS’ broadcasts of the interviews with Tyson and Wilson on April 1 and 2, 2019, as well as their further dissemination were defamatory to his reputation and damaged his chances of successfully becoming a governor. Secondly, by falsely portraying him as a ‘rapist, sexual abuser and a predator’ in their interviews, CBS caused him severe emotional distress. He claimed compensatory damages of USD 400,000,000, punitive damages, attorney costs as well as an injunction on further dissemination of defamatory materials.
Subsequent to the dismissal of the suit by the District Court dated February 11, 2020, Fairfax filed an appeal before the United States Court of Appeals for the Fourth Circuit, contesting the decision of the District Court and requesting to vacate the judgment and remand to proceed with discovery and trial. The case is currently pending appeal before the Appellate Court.
Justice Anthony Trenga delivered the order of the United States District Court of Virginia. The principal question before the Court was whether Tyson and Watson’s statements as presented by CBS as actual facts were either defamatory per se or defamatory by implication, and if CBS made the defamatory statements either with knowledge that the defamatory meaning was false or with a reckless disregard as to whether it was true or false.
Under Virginia law, common law defamation has three elements, (a) publication, (b) an actionable statement (i.e. containing a false assertion that tends to harm the reputation of another) and (c) intent. Furthermore, an actionable statement is either defamatory per se or defamatory by implication. When a statement alleges a person’s unfitness to discharge the duties of an office or an employment for profit, it is defamatory per se. Whereas, a statement is defamatory by implication if it satisfies four criteria: first, the defendant made the statement alleged in the complaint; second, the statement was designed and intended to imply a defamatory meaning; third, the statement conveyed such defamatory implication to those who heard/read them, and finally, the plaintiff suffered harm as a result. Evidently, defamation claims made by public figures are also subject to constitutional limits under First Amendment, requiring the challenged statement to be made by them with actual malice – either with the knowledge of falsity or with reckless disregard to its falsity.
Initially, the Court addressed whether the CBS co-hosts’ statements had defamatory meaning—that is, whether Fairfax plausibly alleged they endorsed Tyson and Watson’s false allegations. CBS contended that the challenged broadcasts were not actionable as they merely presented a ‘competing’ view, of Tyson and Watson’s allegations on one hand and Fairfax’s on the other. Fairfax contested, however, that CBS’ statements, by vouching for both Tyson and Watson’s credibility, created a defamatory implication that he committed the sexual assaults, and also failed to probe the inconsistencies in Tyson’s interview. Responding in the negative to Fairfax’s contentions, the Court held that while the relied-upon statements if taken in isolation could arguably cause a reasonable viewer to infer that the co-hosts’ believed the accusers’ stories, the broadcasts do not constitute actionable defamation if considered in entirety. Notably, the District Court’s assessment gave adequate weight to all statements made and the interviews, which were held to not ascribe any particular view of the events.
Remarkably, the Court did not directly address whether publishing Tyson and Watson’s statements had defamatory meaning. It recognized that Tyson and Watson’s statements, taking the allegations of the complaint as true, were ‘clearly defamatory per se’, but it left the publication of those statements without proper context out of its analysis of defamatory meaning.
Second, the Court assessed if the alleged facts relating to CBS’ broadcasts of the interview displayed actual malice, based on either actual knowledge or a reckless disregard for the truth. This was required since Fairfax conceded to being a public figure, but the Court found that Fairfax was unsuccessful in plausibly proving his assertion. While the Court acknowledged that allegations of misconduct can be taken cumulatively to infer actual malice, it weighed the facts and subsequently rejected each as insufficient to prove so. For instance, Fairfax had alleged that CBS failed to adequately investigate the allegations, did not make honest attempts to reach the witnesses (one of whom worked for CBS), reported the stories with a bias and pre-conceived narrative in favor of the accusers, and intentionally failed to update or correct its reporting with information that undermined the credibility of Tyson and Watson’s allegations. The Court, however, noted that CBS made efforts to contact witnesses Fairfax identified, unlike other media outlets, as well as providing Fairfax with an opportunity to respond to interviews (which he declined). In any case, the Court declared that a failure to investigate cannot, alone, support the finding of actual malice and there is a duty to investigate where a doubt arises as to the veracity of the source of the publisher. This requirement was fulfilled by CBS and was reflected in the portions of the broadcast interviews where CBS asked further questions to both women that raised issues as to their veracity and motivations [p. 21].
In light of its factual findings that CBS had not defamed Fairfax and in any event had not exhibited actual malice, the district court dismissed the complaint, ruling that Fairfax also could not state a claim for intentional infliction of emotional distress on the same grounds.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The order of the Court expands expression. Of substantial emphasis is the Court’s interpretation of the public figure doctrine of the First Amendment Defamation law, which requires the plaintiff, as a public figure, to prove defendant’s actual malice or a high degree of awareness of the probable falsity of the defamatory speech that is alleged to harm the plaintiff’s reputation. In doing so, the Court warrants the jurisprudence extending the actual malice standard laid down in Curtis Publishing Co. v. Butts to speech about public affairs. By virtue of the judgment, the District Court also recognized the value of protecting the right to criticize public figures and government officials, which is indispensable for the operation of democracy and protection of the right to debate on issues concerning public officials.
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