RICHMOND, Va. (WRIC)- The coverage of a 2019 sexual assault scandal involving Lt. Gov. Justin Fairfax was back in focus on Thursday.
Fairfax is taking a second swing at a defamation lawsuit against CBS. The case was heard in the Fourth Circuit Court of Appeals after being dismissed by a lower court last year.
Fairfax’s lawsuit argues that the network acted with reckless disregard for the truth, or “actual malice,” in their reporting of two widely covered sexual assault allegations, which he claims are false.
The way the three-judge panel rules could have an impact on Fairfax’s political future, as he mounts a bid for governor in a crowded Democratic field.
The controversy dates back to 2019, when “CBS This Morning” aired exclusive interviews with Meredith Watson and Vanessa Tyson. Both women separately accused Fairfax of sexual assaults they say happened more than 15 years ago.
Fairfax has said these encounters were consensual. He further accused the women of speaking out as part of a “political smear campaign” meant to derail his ascent to Virginia’s chief executive office as Gov. Ralph Northam faced called to resign during the black face controversy.
To date, law enforcement has not investigated either of these allegations against Fairfax and the General Assembly has refused to hold public hearings on the matter.
Tillman Breckenridge, Fairfax’s attorney, said CBS purposefully avoided the truth in their reporting to build rapport in the height of the #MeToo movement.
“CBS did not just report the false allegations of rape and sexual assault against Justin Fairfax, it heavily promoted direct interviews resurrecting the false allegations and then doubled down by endorsing them, saying, among other things, it “feels like she was forced” and “all these years that pain has stuck with them,” Breckenridge said during opening arguments.
Judge Barbara Milano Keenan pushed back.
“The comments that these morning news people made is really kind of unsettling. I agree with you on that but the law says we have to look at everything and during the presentations there was a constant reminder that Mr. Fairfax denies this,” Keenan said.
Judge A. Marvin Quattlebaum, Jr. questioned whether these comments meet the legal bar needed to move forward with the case.
“I think we have to look at whether a reasonable juror could, if accepted as truth, consider that as taking one side,” he said. “If you’re right we have sweeping defamation and actual malice all over the place, don’t we?”
CBS Attorney Jay Brown said that a reasonable viewer would understand these comments as a sympathetic reaction to an emotional story.
“Nowhere, your honor, did any of the anchors in fact endorse the notion that the encounter was non-consensual. The anchors do not assert that Fairfax raped or sodomized either one,” Brown said.
Breckenridge also pointed to several circumstances in which he believes the network failed to fully investigate the allegations before airing the interviews.
Brown countered that, in previous cases, courts have said a failure to investigate every potential lead cannot amount to actual malice. He said Fairfax’s lawsuit would have to establish that CBS had an obvious reason not to believe the women’s stories.
Lauren Victoria Burke, a spokesperson for Fairfax, said she doesn’t expect the court to make a decision for several months. If the judges stick with the lower court’s decision, she said the only possible option remaining would be for Fairfax to appeal to the U.S. Supreme Court.