FALLS CHURCH, Va. — Appellate judges reviewing a defamation lawsuit filed by Virginia Lt. Gov. Justin Fairfax expressed concern that journalists gave an overly credulous reaction to two women who accused him of sexual assault but were skeptical that he could meet the high standard required to prove libel.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond heard arguments Thursday from a lawyer for Fairfax, who is seeking to have his defamation lawsuit against CBS reinstated after a district court judge dismissed the case last year.
CBS News broadcast interviews in 2019 with two women who accused Fairfax of sexual assault. Fairfax denies wrongdoing and accuses CBS of ignoring evidence that would cast doubt on their allegations.
The allegations made against Fairfax, a Democrat, came at a time when Democratic Gov. Ralph Northam faced calls to resign after discovery of a blackface photo emerged on his medical school yearbook page. The allegations against Fairfax blunted the momentum for Northam’s resignation. Both Northam and Fairfax have remained in office, as has Democratic Attorney General Mark Herring, who admitted about the same time that he had worn blackface in college.
During Thursday’s appellate hearing, Judge Barbara Milano Keenan said she was concerned with comments made by CBS morning anchors after interviews with accusers Vanessa Tyson and Meredith Watson. In particular, the judge cited “CBS This Morning” co-host Norah O’Donnell’s comment after Tyson’s interview that she “feels like she was forced.”
“It really left me with an uneasy feeling how they seemed to showcase this, you know kind of a touchy-feely presentation based on what they were thinking rather than what the news story was,” Keenan, an Obama appointee, told the CBS lawyer.
Judge A. Marvin Quattlebaum expressed a similar concern but said such commentary appears to be commonplace.
“If this takes one side, we’ve got defamatory statements right and left all over the news these days,” said Quattlebaum, a Trump appointee.
Despite those concerns, the judges questioned whether Fairfax could show “actual malice,” the legal standard for libel against a public figure. The judges noted that CBS included Fairfax’s denial of the allegations in its broadcast.
Fairfax’s lawyer, Tillman Breckinridge, said CBS “demonstrated purposeful avoidance of the truth” by ignoring evidence that would have cast doubt on the women’s claims.
Fairfax says he had consensual encounters with both women. He says Tyson was friendly with him in the days and weeks after the alleged attack at the 2004 Democratic National Convention and she even tried to get him to meet her parents.
Fairfax says another person was in the room when he and Watson had their encounter and that the person can confirm the encounter was consensual.
While Fairfax acknowledged that CBS was unaware of the eyewitness at the time of the broadcast, he said the network has failed to update its reporting.
A ruling from the panel will come in the next few weeks. Fairfax is one of several candidates seeking the Democratic nomination for governor in a June primary.
