The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Justin Fairfax (Former Va. Lt. Gov.) Loses Libel Lawsuit Against N.Y. Public Radio


From Judge Anthony Trenga's decision today in Fairfax v. N.Y. Public Radio (E.D. Va.):

On August 6, 2021, NYPR aired a radio show named "The Takeaway" on the topic of "Politics, Power and Abuse" that featured a conversation between Vanessa Tyson, a professor of political science, and the show's host, Melissa Harris-Perry ("the Broadcast"). The Broadcast discussed the reactions to women who make allegations of sexual misconduct against individuals with political power and centered in part on the then-recent allegations against former New York Governor Andrew Cuomo. In 2019, Tyson had alleged on a national television show, broadcast by CBS, that Fairfax had sexually assaulted her in 2004 at the Democratic National Convention. During the NYPR Broadcast, Harris-Perry referenced, and Tyson repeated her claim that Fairfax had sexually assaulted her at the 2004 Democratic National Convention, as context for a discussion about how such allegations are treated by the media and the political establishment. Also broadcast during that NYPR radio show was a short, recorded audio clip from Meredith Watson, another woman who accused Fairfax of sexual assault during the 2019 CBS broadcast, in which she expressed how she felt about Fairfax's alleged conduct.

Based on the August 6 NYPR Broadcast, Fairfax has filed a two-count complaint against NYPR alleging defamation and intentional infliction of emotional distress. In support of the defamation claim, the Complaint alleges that NYPR failed to investigate Tyson and Watson's allegations made on the Broadcast. More specifically, Fairfax alleges that NYPR did not speak with or mention a publicly identified witness who Fairfax claims observed his entire sexual encounter with Watson in 2000 and who would confirm that the encounter was consensual. Fairfax also alleges that NYPR should have discussed a Washington Post editorial piece that detailed the steps Fairfax has taken to attempt to clear his name, such as taking and passing polygraph tests, and that NYPR further failed to reach out to Fairfax in a "reasonable amount of time" prior to the broadcast of the radio show, although the Complaint also states that Fairfax was contacted one day before the show and did not take the opportunity to comment….

The court concluded that the statements weren't libelous because NYPR simply reported on the allegations, rather than endorsing them:

The context for the relied upon references was "the news about Governor Andrew Cuomo, and to reflect on [Tyson's] own very public journey over the past several years." The Complaint itself makes clear that these allegations of sexual assault had previously been raised against Fairfax. The show's reference to his accusers' claims does not discuss the details of those accusations or endorse the veracity of those claims and was followed immediately by clear statements that Fairfax categorically denied the allegations. In sum, the Broadcast conveyed only the undisputed fact that Tyson and Watson made sexual abuse allegations against Fairfax and that Fairfax had categorically denied the allegations, without any opinion or suggestion by Harris-Perry that the allegations were true. For these reasons, the Complaint fails to sufficiently allege that anything said by Harris-Perry constituted actionable factual and defamatory statements.

This is a minority view among American courts, I think; generally speaking, the so-called "Republication Rule" provides that repeating allegations—even if the repetition is accurate—can be actionable if the underlying allegations themselves are false. But the court also concluded that Fairfax hadn't sufficiently pleaded that NYPR knew the statements were false or likely false (i.e., spoke with so-called "actual malice"); and that strikes me as quite right:

[T]he Complaint fails to allege, as required, facts that show NYPR published the accusers' statements despite possession of actual knowledge that the statement was false or while harboring "a high degree of awareness of probable falsely." That standard requires "much more than a failure to exercise ordinary care" and "recklessness is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing." For these reasons, the Complaint's conclusory allegation, that NYPR knew of the purported witness or other relied upon information, even it accepted as a factual allegation, is insufficient to plausibly allege actual malice. St. Amant v. Thompson (1968) ("Failure to investigate does not in itself establish bad faith."). Nor were NYPR and Perry obligated to include a detailed presentation of the "substantial information pointing to Fairfax's innocence and extraordinary efforts to clear his name." In sum, the factual allegations of the Complaint arguably allege, at best, a plausible negligent failure to investigate, not "the purposeful avoidance of the truth." For these reasons, Fairfax has failed to allege facts that make plausible that NYPR broadcast Tyson and Watson's allegations of sexual assault with actual malice.

{Nor does the Supreme Court's decision in Harte-Hanks Communications v. Connaughton (1989), referenced by the Fourth Circuit in CBS II, and relied upon by Fairfax, support Fairfax' position that the Complaint adequately alleges actual malice. In that case, the defamed public figure had provided recorded audio tapes of a third­ party witness to the defendant. Id. ("It is also undisputed that [plaintiff] made the tapes of the [witness] interview available to the Journal News and that no one at the newspaper took the time to listen to them.") These recordings also partially contradicted the substance of the disputed remarks in the case. Id. ("[O]ne might reasonably infer in light of this broader context that the decision not to listen to the tapes was motivated by a concern that they would raise additional doubts concerning [the third-party accuser's] veracity.") The journalists in Harte-Hanks had also been instructed to interview everyone who was a key witness in the case but failed to interview an eyewitness who was known to the journalists. The Supreme Court was satisfied that the totality of these facts sufficiently demonstrated "a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity" of the defamatory allegations.

Here, there is no allegation that Fairfax informed New York Public Radio about the third­-party witness, nor has Fairfax made other factual allegations from which to reasonably infer that NYPR knew the allegations of sexual misconduct were false or that NYPR recklessly disregarded whether or not the allegations were false. In fact, unlike the plaintiff in Harte-Hanks, the Complaint makes clear that Fairfax did not communicate any information to NYPR about any eyewitness or his accusers, even though he was asked to comment before the broadcast.}

The court also concluded that, under the Virginia anti-SLAPP statute, Fairfax had to pay NYPR's attorney fees, because "Fairfax's action against NYPR was meritless, unreasonable, and without any substantial basis in law or fact, and motivated by reasons other than obtaining relief against NYPR based on a good faith, fact based belief that it had made actionable defamatory statements against him."

Congratulations to Andrew Marc Levine, Jared Ian Kagan & Jonathan Rosser Tuttle, who represent NYPR.