Say what? Fairfax files defamation lawsuit against CBS for ... interviewing his accusers

Sullivan be damned, it seems, along with common sense. Justin Fairfax, the embattled lieutenant governor of Virginia, has decided to fight back against allegations of sexual assault by suing CBS for defamation. Fairfax wants $400 million because its news division interviewed his accusers and didn’t do “due diligence” in preparing its questions, which is … not exactly defamation even outside of Sullivan:

Virginia Lt. Gov. Justin Fairfax on Thursday filed a lawsuit against CBS, alleging the network defamed him when it aired interviews earlier this year with two women who accused him of sexual assault.

The lawsuit, filed in federal court in the Eastern District of Virginia, demands $400 million for alleged defamation and “severe emotional distress” caused by the reporting. …

The lawsuit contended that King “failed to ask basic questions” of the two women, and “failed to separately investigate the allegations in advance of the airing date, and instead only spoke to Watson, Tyson and their representatives.”

Specifically, the lawsuit alleged that CBS “failed to interview other individuals who may have been able to confirm or contradict the allegations.”

In the lawsuit, Fairfax names one specific witness that CBS allegedly ignored — one of its own attorneys, whom Fairfax claims was a witness to one of the two alleged incidents. The lawsuit alleges that the attorney “has stated to multiple people” that Fairfax’s encounter with Meredith Watson was consensual, not “rape or sexual[] assault.” By not including that in its report, Fairfax alleges that CBS cooked their reports in an attempt to rehabilitate itself in the midst of its own sexual harassment scandals:

The lawsuit suggests CBS was trying to “align itself on the side of perceived victims” in light of sexual misconduct allegations against several high-profile CBS employees, including former CEO Leslie Moonves, who was ousted last September.

“In light of its need to improve its public image and put these incidents in its rearview mirror by currying favor as a media outlet for accusations against public figures, the network sought to visibly align itself with alleged victims of sexual misconduct and, therefore, had a strong incentive to hype and air the false allegations by Watson and Tyson against Fairfax,” the lawsuit says.

That’s certainly a fun allegation, but it’s essentially meaningless when suing a media outlet for defamation. Even if they gave Fairfax’s accusers more coverage than one might have predicted for these reasons, it means nothing if CBS didn’t defame Fairfax. It does mean, however, that the “severe emotional distress” discovery process should be beautiful, man, on both sides.

Let’s start with the basics. CBS did not report the original allegations; those were made public by Fairfax’s accusers. CBS did what news organizations do — conduct interviews with both women to allow them to tell their side of the story. They are not under any obligation to cross-examine their interview subjects, although they certainly have that option if they (and their subjects) so choose. The actual defamation did not start with CBS, however, which means they didn’t create whatever unfair damage Fairfax claims. Fairfax would have to sue Vanessa Tyson and Meredith Watson for damages, but they don’t have $400 million.

Second point: in order to win a defamation case under any circumstances, one has to have been defamed — accused of something that wasn’t true. No one has proven these allegations either true or false to any degree of certainty. Fairfax’s lawsuit has to be predicated on being able to prove both of the claims false. So far, all Fairfax has done is insist on his innocence, while his accusers insist on his guilt. This lawsuit would require Fairfax to prove his innocence by proving a negative, and to make the case that his innocence was so obvious that merely interviewing the accusers was malpractice. That first task is so Herculean that the American criminal justice system is designed to prevent defendants from having to do that very thing. For some reason, Fairfax has decided to take on the near-impossible — against a corporation with its own massive legal department.

Furthermore, under Sullivan, Fairfax would have to prove actual malice on the part of CBS to win a defamation case. He’s a public person, an elected official, which falls directly into the Supreme Court’s intent for the higher burden of proof — to allow the media to report on allegations of wrongdoing by those in power. Even if Fairfax can somehow prove that the allegations are false — which he has yet to do publicly, other than his own denials — he’d have to show that CBS knew at the time that (a) both allegations were false, and (b) they acted recklessly and outside their normal processes in airing the interviews. That’s a high bar to clear even when media outlets publish provably false information, and it’s far from clear that these allegations are provably false, or even false at all.

Finally, it’s beyond comprehension why Fairfax would do this now. The scandal had died down in Virginia (along with Ralph Northam’s blackface scandal). Fairfax could have quietly gone back into private practice at some point and dealt with the Google searches as they came up. A splashy trial against CBS will dredge this all back up and then some as CBS’ lawyers will dig further and further into Fairfax’s background — and his accusers line up to tell their stories. And right now, they’re pretty darned stoked to tell their stories under oath:

Attorneys for one of the women accusing Virginia’s lieutenant governor of sexual assault say Justin Fairfax’s defamation lawsuit against CBS over an interview she gave is a “ploy” to preserve his political career.

The attorneys for Vanessa Tyson say the college professor stands by statements she made during the CBS interview earlier this year. …

Nancy Erika Smith is an attorney for Watson. Smith says, “We look forward to everyone testifying under oath, now that this matter is in court.”

CBS also says they plan to “vigorously” defend their actions in court, which seems not just reasonable but obvious. If this is a PR stunt by Fairfax, he might want to end it soon. This can end in a number of ways, but almost all of them are bad news for Fairfax.

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