Lt. Gov. Justin Fairfax’s $400 million suit could face uphill fight 

    Lt. Gov. Justin Fairfax was surrounded by reporters inside the Capitol during the General Assembly session in February after sexual assault allegations against him surfaced. (Ned Oliver/Virginia Mercury)

    By Jeff Raines/ Capital News Service

    Lt. Gov Justin Fairfax has filed a $400 million defamation lawsuit against CBS for their reporting on sexual assault claims made against him. While defamation cases are common in the courtroom; winning one is not.

    Fairfax must prove CBS either knowingly reported false claims or intentionally did not investigate them, with specific intent to damage his reputation and political career.

    Public figures — politicians, high-ranking government officials and celebrities, for instance — are required to prove actual malice to recover damages from defamatory statements.

    “Actual malice is a mindset that you mean to do something maliciously; it’s willful,” said Carl Tobias, a constitutional law expert and law professor at the University of Richmond.

     “It’s much worse than negligence. You blatantly fail to do something that causes somebody else a lot of harm,” he said.

    Fairfax, a lawyer, claims CBS aired false statements from Vanessa Tyson and Meredith Watson, two women who allege they were sexually assaulted by Fairfax 15 and 19 years ago, respectively.

    The lawsuit claims the network acted intentionally and “recklessly disregarded” attempts to verify the women’s claims by not running an independent investigation.

    Tobias said “the case relies on allegations of what CBS failed to do.” Proving CBS acted negligently and did not thoroughly investigate the sexual assault claims is not enough to prove actual malice.

    The lawsuit might contain plausible arguments, Tobias said, but that doesn’t mean it will hold up in the courtroom or be resolved anytime soon. CBS is probably going to fight the case, even if it ultimately settles later, Tobias said.

    Fairfax has claimed his innocence since the beginning and said he had consensual encounters with both women. After the CBS interviews aired, Fairfax released the results of polygraph examinations that he said exonerate him.

    Fairfax said the allegations made against him were a “political hit job” and that the timing was a “deliberate and calculated” effort to harm his career as he was poised to possibly ascend to the governorship. Gov. Ralph Northam was engulfed in a blackface scandal that erupted days before the Fairfax allegations, when a picture from Northam’s page in his medical school yearbook was released that showed a person in KKK garb and a person in blackface.

    Fairfax accused CBS of acting with actual malice by “hyping” the allegations and airing the interviews “to maximize ratings for CBS in light of the ongoing scandal” with the governor.

    Fairfax also claims the network aired the interviews in an attempt to align with #MeToo victims after internal scandals rippled all the way up to CBS CEO Les Moonves, who was fired over sexual misconduct allegations. “CBS This Morning” co-anchor Charlie Rose was fired after eight women made sexual harassment allegations. “60 Minutes” executive producer Jeff Fager left the network also in the face of sexual misconduct allegations.

    Fairfax’s legal team concluded that “the network sought to visibly align itself on the side of perceived victims to improve its public image.”

    Watson and Tyson stand by their claims of sexual assault and offered in the spring to testify at the General Assembly, but legislators said criminal investigations should be held in states where the alleged assaults occurred. No criminal charges have been filed against Fairfax.

    The lawsuit also asks for an injunction that would stop the network from “disseminating, distributing, or publishing any footage or statements that are judicially determined to be defamatory.”

    CBS said in a statement: “We stand by our reporting and we will vigorously defend this lawsuit.”