Nos.

20-1298 & 20-1299

IN THE

United States Court of Appeals for the Fourth Circuit

______________

JUSTIN E. FAIRFAX

Plaintiff-Appellant
Cross-Appellee,
v.

CBS CORPORATION, and

CBS BROADCASTING INC.

Defendants-Appellees
Cross-Appellants.
______________
On Appeal from the United States District Court
For the Eastern District of Virginia
Civil Case No. 19-cv-01176,
Honorable Anthony J. Trenga
______________
BRIEF OF APPELLANT
______________
TILLMAN J. BRECKENRIDGE
BRECKENRIDGE PLLC
1325 G St., NW, Suite 500
Washington, DC 20005
202-567-7733
tjb@breckenridgepllc.com

Counsel for Plaintiff-Appellant/Cross-Appellee

July 27, 2020

USCA4 Appeal: 20-1298 Doc: 15 Filed: 03/27/2020 Pg: 1 of 2

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE STATEMENT

x In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
parties, with the following exceptions: (1) the United States is not required to file a disclosure
statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state
or local government is not required to file a disclosure statement in pro se cases. (All parties
to the action in the district court are considered parties to a mandamus case.)
x In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
x In criminal cases, the United States must file a disclosure statement if there was an
organizational victim of the alleged criminal activity. (See question 7.)
x Any corporate amicus curiae must file a disclosure statement.
x Counsel has a continuing duty to update the disclosure statement.

20-1298
No. __________ Caption: __________________________________________________
Fairfax v. CBS Broadcasting, Inc.

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________
Justin Fairfax
(name of party/amicus)

______________________________________________________________________________

who is _______________________,
appellant/cross-appelle makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO

2. Does party/amicus have any parent corporations? YES ✔ NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity? YES ✔ NO
If yes, identify all such owners:

12/01/2019 SCC -1-

USCA4 Appeal: 20-1298 Doc: 15 Filed: 03/27/2020 Pg: 2 of 2

4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation? YES ✔ NO
If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO

If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a
party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the
caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held
corporation that owns 10% or more of the stock of the debtor.

7. Is this a criminal case in which there was an organizational victim? YES ✔ NO

If yes, the United States, absent good cause shown, must list (1) each organizational
victim of the criminal activity and (2) if an organizational victim is a corporation, the
parent corporation and any publicly held corporation that owns 10% or more of the stock
of victim, to the extent that information can be obtained through due diligence.

/s/ Sara Kropf VSB #84931

Signature: ____________________________________ Date: ___________________
March 27, 2020

Justin Fairfax
Counsel for: __________________________________

-2- Print to PDF for Filing

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................................................... iv

INTRODUCTION ...................................................................................... 1

JURISDICTIONAL STATEMENT ........................................................... 3

ISSUES PRESENTED .............................................................................. 3

STATEMENT OF THE CASE .................................................................. 3

A. The citizens of Virginia elect Justin Fairfax Lieutenant

Governor .................................................................................. 3

B. Vanessa Tyson falsely alleges that Fairfax sexually

assaulted her 13 years prior and The Washington Post
refuses to publish Tyson’s story due to lack of
corroboration ........................................................................... 5

C. Scandal calls into question whether Virginia Governor

Ralph Northam will resign, and Fairfax will ascend to
Governor .................................................................................. 6

D. Tyson again falsely alleges at a politically critical time

that Fairfax sexually assaulted her........................................ 6

E. Meredith Watson falsely alleges rape and sexual

assault in a separate incident 19 years prior ......................... 8

F. CBS plans to air interviews with Tyson and Watson,

ignoring evidence calling the veracity of their
allegations into question ......................................................... 9

i
 G. CBS airs the interviews without addressing the
exculpatory evidence and endorses the accusers’ false
statements ............................................................................. 11

H. Fairfax sues CBS for defamation and intentional

infliction of emotional distress.............................................. 13

I. The district court grants CBS’s motion to dismiss the

suit, weighing the facts and inferring that CBS’s
statements were not endorsements and that CBS acted
without actual malice ............................................................ 13

SUMMARY OF THE ARGUMENT ........................................................ 17

ARGUMENT ........................................................................................... 20

I. Fairfax adequately pleaded that CBS published

defamatory statements ......................................................... 21

A. CBS defamed Fairfax both by publishing false

statements by Fairfax’s accusers and by
endorsing them............................................................. 21

II. Fairfax has alleged sufficient facts for a reasonable

juror to find actual malice..................................................... 28

A. The complaint alleges myriad facts that,

independently or taken together, raise a plausible
inference of actual malice ............................................ 28

B. The district court improperly relied on assertions

outside the complaint that are irrelevant in any
event because they must be tested in discovery
and weighed by the jury............................................... 40

CONCLUSION ........................................................................................ 43

ii
CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

iii
 TABLE OF AUTHORITIES

Page(s)

CASES

Carwile v. Richmond Newspapers, Inc.,

196 Va.1 (1954) ................................................................... 21, 22, 23

E.I. du Pont de Nemours & Co. v. Kolon Indus.,

637 F.3d 435 (4th Cir. 2011) .......................................................... 40

Harte-Hanks Comms. v. Connaughton,

491 U.S. 657 (1998) .................................................................. 29, 36

Mayfield v. Nat’l Ass’n for Stock Car Racing, Inc.,

674 F.3d 369 (4th Cir. 2012) .......................................................... 29

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................................................. 21, 29

Palin v. New York Times Company,

940 F.3d 804 (2d Cir. 2019) ................................................ 30, 31, 32

Reuber v. Food Chemical News, Inc.,

925 F.2d 703 (4th Cir. 1991) .......................................................... 29

Schaecher v. Bouffault,
290 Va. 83 (2015) ............................................................................ 22

Schiavone Constr. Co. v. Time, Inc.,

847 F.3d 1069 (3d Cir. 1988) .......................................................... 29

Virginia Citizens Def. League v. Couric,

910 F.3d 780 (4th Cir. 2018) .................................................. passim

Young v. Gannett Satellite Info. Network, Inc.,

734 F.3d 544 (6th Cir. 2013) .......................................................... 30

iv
STATUTES

28 U.S.C. § 1291 ........................................................................................ 3

28 U.S.C. § 1332(a) .................................................................................... 3

RULE

Fed. R. Civ. P. 9(b)....................................................................... 19, 29, 32

v
 INTRODUCTION

The district court erroneously turned a motion to dismiss

defamation and intentional infliction of emotional distress claims into a

quasi-bench trial where its only “evidence” was the complaint, the

allegedly defamatory statements, and improperly-filed exhibits to the

defendants’ motion to dismiss. To grant defendant CBS’s motion, the

court (1) drew its own inferences regarding the meaning of CBS

personnel’s thinly-veiled endorsements of the false statements CBS

aired, (2) failed to even address the defamatory meaning of publishing

the accusers’ false statements, and (3) found its own facts that had no

support in the complaint. Fairfax has a right to a jury trial—or at least

discovery—on CBS’s decision to air the false accusations against Fairfax

without context undermining the veracity and credibility of the

statements, and on its personnel’s subsequent endorsement of those false

statements.

CBS aired its interview where Meredith Watson accused Fairfax of

rape and sexual assault knowing one of its own employees was a material

witness with exculpatory information. It aired its Vanessa Tyson

interview, despite readily available indicia of Tyson’s lack of credibility

-1-
and despite knowing The Washington Post had declined to report her

story for lack of corroboration. CBS’s on-air personnel then made

statements immediately after the interviews that a reasonable juror

could find endorsed the women’s statements. CBS cannot find safe

harbor in its on-air statement that Fairfax denied the allegations without

offering the evidence in CBS’s possession that the allegations were not

true. And it cannot find safe harbor in purportedly offering Fairfax the

opportunity to be interviewed by the network that chose to defame him—

lest the court create a world in which one need only demand a public

figure sit for an interview to absolve its publication of vicious and harmful

falsities about him or her with abandon.

The district court looked at the interviews and concluded that what

CBS did was fair before Fairfax even had the opportunity to take a single

deposition or any other discovery. That is reversible error, as it is not the

district court’s role. That is the jury’s role after the parties develop a

factual record. Thus, the Court should vacate the judgment and remand

to proceed with discovery and trial.

-2-
 JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction under 28 U.S.C.

§ 1332(a) because the amount in controversy exceeds $75,000 and

Plaintiff is a resident of Virginia while Defendants are residents of New

York. JA66. The district court entered judgment in this case on February

11, 2020, JA400, and Fairfax filed a timely notice of appeal on March 11,

2020. This Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED

The issues presented are:

1. Whether Fairfax adequately pleaded that CBS published

defamatory statements,

2. Whether Fairfax adequately pleaded that CBS published the

statements with actual malice, and

3. Whether the district court erred by relying on factual assertions

and inferences outside the scope of the complaint.

STATEMENT OF THE CASE

A. The citizens of Virginia elect Justin Fairfax Lieutenant

Governor.

Justin Fairfax and his wife have been married since 2006 and have

two school-aged children. JA65. Fairfax resides in Fairfax County,

-3-
Virginia, where he has built a successful legal career since his graduation

from Columbia Law School in 2005. Id. After serving on the Columbia

Law Review and clerking for the Honorable Gerald Bruce Lee in the

United States District Court for the Eastern District of Virginia, Fairfax

worked at prestigious law firms, WilmerHale LLP, Venable LLP, and

Morrison &Foerster LLP. Id. Between Wilmer and Venable, Fairfax

served the public as an Assistant United States Attorney for the Eastern

District of Virginia. Id.

Fairfax left his position as an Assistant United States Attorney to

run for Attorney General of Virginia in 2012. Id. Despite it being his

first ever run for public office, Fairfax garnered over 48% of the statewide

vote in the 2013 primary and was endorsed by The Washington Post. Id.

Four years later, he successfully won the primary and general elections

to become Virginia’s Lieutenant Governor and only the second African

American elected to statewide office in Virginia history. Id. In Virginia,

Lieutenant Governor is a part-time position that pays about $36,000 per

year. Id. Thus, Fairfax worked as a partner at Morrison & Foerster

while also serving. Id. Fairfax previously served as a member of the

Duke University Board of Trustees, and, during his time as Lieutenant

-4-
Governor, also served on the Duke University Sanford School of Public

Policy Board of Visitors and as Chair of the Democratic Lieutenant

Governors Association. JA65-66.

B. Vanessa Tyson falsely alleges that Fairfax sexually

assaulted her 13 years prior and The Washington Post
refuses to publish Tyson’s story due to lack of
corroboration.

Around the time of Fairfax’s election and inauguration, Vanessa

Tyson contacted The Washington Post and falsely asserted that Fairfax

sexually assaulted her at the 2004 Democratic National Convention in

Boston. JA371. The Post investigated Tyson’s claims for several months,

and in March 2018, it decided not to publish Tyson’s story because it

could not corroborate her claims. Id. at n.3. Nonetheless, the false story

lingered. In Fall 2018, Fairfax was warned that if he announced an

intention to run for governor in 2021, political rivals—Richmond Mayor

Levar Stoney, his top aide, Thad Williamson, and Williamson’s wife,

Adria Scharf—would promote Tyson’s story to derail Fairfax’s political

future. JA73. At the same time, CBS was mired in its own sexual

misconduct scandals, including allegations against CBS This Morning

Co-Anchor Charlie Rose and CBS CEO Les Moonves.

-5-
 C. Scandal calls into question whether Virginia Governor
Ralph Northam will resign, and Fairfax will ascend to
Governor.

In February 2019, scandal beset the Governor’s mansion as a

yearbook photograph purportedly depicting two members of Governor

Ralph Northam’s medical school class surfaced. JA371. The photo

depicted one person in blackface, and another dressed as a Ku Klux

Klansman—many believing at the time that Governor Northam was one

of the two people in the photo. Id. Many speculated that Governor

Northam might resign, in which case Fairfax would have ascended to

Governor, becoming only the second African American Governor in the

Commonwealth’s history and the only African American currently

serving as Governor in the United States. Id.

D. Tyson again falsely alleges at a politically critical time

that Fairfax sexually assaulted her.

A few days after the yearbook photo was published, a conservative

news website published a purportedly private Facebook message that

was allegedly written by Tyson. It stated that someone who was about

to get a “VERY BIG promotion” had assaulted her in 2004 at the

Democratic National Convention. Id. A conservative did not provide this

salacious allegation to the conservative website. Adria Scharf, the wife

-6-
of Thad Williamson, a longtime friend and schoolmate of Tyson and then

a candidate for Richmond City Council and a top aide to Mayor Levar

Stoney, a potential Democratic primary opponent to Fairfax in the 2021

Virginia gubernatorial election, captured and shared the message

publicly—thus activating the political sabotage plan about which Fairfax

had been warned in Fall 2018. JA72-73.

The next day, the Post reported Tyson’s allegation, noting that it

“‘could not find anyone who could corroborate’ Tyson’s allegations.”

JA371. Later that week, Tyson published a statement through her

lawyer. JA372. In her statement, Tyson alleged that she and Fairfax

engaged in “‘consensual kissing’” that “quickly turned into a sexual

assault.” Id. According to Tyson, Fairfax “put his hand behind [her] neck

and forcefully pushed [her] head towards his crotch.” Id. Tyson claimed

that Fairfax then “forced his penis into her mouth.” Id.

Fairfax acknowledges that he and Tyson had sexual contact at the

2004 Democratic National Convention. Id. Having met less than 24

hours prior, Fairfax invited Tyson to his hotel room, and the two “engaged

in consensual sexual activity in Fairfax’s hotel room.” Id. Fairfax did

not force Tyson to do anything, nor did Tyson indicate in any way that

-7-
she was being forced. Id. Contrary to her uncorroborated allegation

made 15 years after-the-fact, Tyson did not cry or gag or choke. Id. She

unambiguously manifested her consent. Id. Following the encounter,

Tyson made no effort to leave the hotel room, made friendly conversation,

and ultimately left with Fairfax. JA69-70.

Tyson and Fairfax continued to contact each other for a few weeks

after their consensual sexual encounter, and Tyson never indicated

Fairfax had done anything wrong. JA372. In fact, Tyson left a voice

message for Fairfax asking to visit him in New York City and introduce

him to her mother. JA70. Fairfax “ghosted” her—he did not respond to

the message or otherwise speak with Tyson again.

E. Meredith Watson falsely alleges rape and sexual

assault in a separate incident 19 years prior.

Days after the Tyson story broke, Meredith Watson’s attorney sent

a letter to Fairfax’s counsel claiming that Fairfax had raped Watson in

2000, when both were students at Duke University. JA373. Watson, who

did not live in Virginia, demanded that Fairfax resign as Lieutenant

Governor and demanded that Fairfax respond by 3:00 p.m. that day. Id.

Fairfax had not responded to what he deemed an inappropriate threat of

-8-
blackmail by later that afternoon, when Watson’s lawyer issued a public

statement claiming that Fairfax had raped Watson. Id.

Watson, of course, failed to mention numerous details that

undermined her story, including that someone else was in the room the

whole time—a third-party eyewitness. Id. In Spring 2000, Watson,

Fairfax, and the eyewitness were in the eyewitness’s room at Alpha Phi

Alpha’s fraternity house at Duke University. JA67. Watson had been to

the room many times, and on that day, she initiated a sexual encounter

with Fairfax with the eyewitness present in the room. Id. Afterward,

Fairfax left the room, leaving Watson with the eyewitness. JA68.

F. CBS plans to air interviews with Tyson and Watson,

ignoring evidence calling the veracity of their
allegations into question.

The same day Watson’s lawyer went public, Ed O’Keefe, a CBS

News reporter was in touch with Fairfax’s spokesperson. JA374. She

sent O’Keefe a list of four names with phone numbers and asked him to

contact those people. Id. He noted that one person on the list was a CBS

lawyer. Id. O’Keefe ultimately claimed his attempts to reach these

witnesses were unsuccessful, and he suggested that the spokesperson

urge them to return his calls. Id. During that time, the eyewitness to

-9-
Watson’s and Fairfax’s sexual encounter told the CBS lawyer that he was

in the room, and the entire encounter was consensual. JA68.

At some point in February or March, CBS obtained exclusive

interviews with both Tyson and Watson, and O’Keefe worked on them

with Gayle King and others. JA87-88. CBS did not tell Fairfax it was

conducting the interviews, and Fairfax only learned of the interviews

through other sources on March 28, a few days before they aired. Id.

CBS set the interviews to air on April 1 and 2, 2019—the two days

preceding a one-day reconvened session of the Virginia General

Assembly. Id.

Though it required relying on materials outside the Complaint, the

district court found that CBS offered to interview Fairfax as well. JA374,

90. Fairfax has not had an opportunity to obtain discovery on the

circumstances surrounding this purported offer to sit for an interview,

nor has he had an opportunity to fully address his understanding of the

purported offer in a properly briefed motion for summary judgment.

- 10 -
 G. CBS airs the interviews without addressing the
exculpatory evidence and endorses the accusers’ false
statements.

Nearly two months after Fairfax’s spokesperson gave O’Keefe the

names of key witnesses, including a CBS in-house attorney, CBS aired

interviews with the two women on consecutive days. JA374. During

these interviews with Gayle King, the two women falsely accused Fairfax

of sexual assault and made other false statements. Id. Watson—still

failing to mention the eyewitness who was in the room—described

Fairfax shutting the door with a “‘click like locking the door’” as if Fairfax

were isolating her in a position she could not escape with no witnesses.

JA375. Fairfax’s spokesperson had implored King to ask Watson

“whether Watson ‘encountered anyone other than Fairfax upon entering

or exiting the room or building.’” JA378. In the interview, King failed to

ask this basic question, nor did she ask other basic questions of Watson

and Tyson that would undermine their false stories. JA88.

Following the Tyson interview, King noted that Fairfax maintained

his innocence and had passed polygraph tests. King and her co-hosts on

CBS This Morning then discussed the allegations, with King endorsing

Tyson’s version of the story, vouching for her veracity, and implying that

- 11 -
Fairfax was not “safe.” JA375. Her co-hosts added further endorsement,

saying “[s]omething clearly changed when she was walking through what

transpired,” “you could see where she got very emotional and went to that

dark place,” and “feels like she was forced.” Id.

Similarly, after the Watson interview, King again noted Fairfax’s

denial and polygraph results. JA376. And again, King and her co-hosts

followed that up by endorsing the accuser—this time, Watson and Tyson

together. JA377. They stated that “[a]ll these years later, that pain has

stuck with them about how they felt in that moment, and how it has

affected them for decades,” and “we have now seen example after example

of how it is as real as if it happened yesterday,” and in response, “[e]xactly

right, John.” Id. The entire time, CBS had, in its possession, knowledge

of the eyewitness.

When further details undermining Watson’s story became public,

CBS, unlike many other major media outlets, did not correct or update

its reporting or the defamatory video interviews still available today on

its website and social media platforms. JA105-07. CBS avoided contact

with Fairfax’s spokesperson, who was requesting that CBS update its

- 12 -
stories with the new information, and has continually refused to update

or correct its reporting ever since. JA107.

H. Fairfax sues CBS for defamation and intentional

infliction of emotional distress.

In light of CBS’s airing of the false accusations with reckless

disregard for the truth, and CBS’s refusal to do anything to rectify the

damage it had done, Fairfax filed this suit alleging defamation and

intentional infliction of emotional distress. Ja104-07. As a result of CBS

airing Watson and Tyson’s false allegations, Fairfax has suffered severe

professional, personal, economic, and emotional harm. After CBS aired

its interviews and posted its videos, Fairfax had to resign from his

lucrative partnership at Morrison & Foerster. JA110. He has been

falsely branded a “rapist, “predator,” and “sexual abuser.” Id. His family

has been subjected to ridicule and embarrassment, and Fairfax has had

to endure the same while watching his family suffer. Id.

I. The district court grants CBS’s motion to dismiss the

suit, weighing the facts and inferring that CBS’s
statements were not endorsements and that CBS acted
without actual malice.

CBS filed a motion to dismiss the Amended Complaint with 45

exhibits attached to the memorandum in support. JA125. Some of the

attachments were the interviews referenced in the Amended Complaint,

- 13 -
but most of them were not. JA116-18. They ranged from news articles

about various events surrounding the false accusations to apparent

attempts at entering opinion testimony on proper journalistic protocol.

JA124-25. The district court purported to rely only on the attachments

representing recordings of the broadcast interviews. JA371 n.2. But to

find that Fairfax “declined CBS’s requests for a similar interview with

him,” the court appears to have relied on just a statement from Gayle

King stating that they were “hoping that Lieutenant Governor Fairfax

will speak to [them] at some point.” JA145; see also JA374, citing JA 144

(which does not include any reference to a potential interview with Mr.

Fairfax). 1

The court first addressed whether the CBS co-hosts’ statements had

defamatory meaning—that is, whether Fairfax plausibly alleged they

endorsed Tyson’s and Watson’s false allegations. The district court

weighed all the statements made and the interviews, then it concluded

that “[a]lthough, when taken in isolation, these relied upon statements

1 The district court apparently cribbed that factual finding from CBS’s
memorandum in support of its motion to dismiss, which makes the same
unsupported claim and makes the same apparent citation error. Fairfax
v. CBS, No. 19-cv-01176, Doc. 17 at 7 (E.D. Va. Nov. 1, 2019).

- 14 -
could arguably cause a reasonable viewer to infer that the CBS co-hosts

believed to some extent certain aspects of the accusers’ stories, neither

[of the] broadcasts contains, as to CBS, actionable defamation as a matter

of law when the relied upon statements are considered within the context

of the broadcasts in their entirety.” The district court did not have the

benefit of fulsome evidence developed through discovery. It simply

decided after viewing the interviews that a reasonable viewer could not

glean from the interviews that CBS endorsed the allegations as true. It

made this finding without the benefit of the reasonable viewers, the jury.

The court did not directly address whether publishing Tyson’s and

Watson’s statements had defamatory meaning. The court recognized

that Tyson’s and Watson’s statements, taking the allegations of the

complaint as true, were “clearly defamatory per se,” JA384, but it left the

publication of those statements without proper context out of its analysis

of defamatory meaning.

The district court further found that Fairfax had not plausibly

pleaded that CBS acted with actual malice, which is required because

Fairfax concedes he is a public figure. JA387-91. The court

acknowledged that allegations of misconduct can be taken cumulatively

- 15 -
to infer actual malice. JA387 n.9. But then the court addressed Fairfax’s

allegations of misconduct seriatim, weighing the facts, and rejecting

each, standing alone, as insufficient to prove actual malice. JA388-91.

For instance, regarding Fairfax’s allegation that CBS failed to

adequately investigate the allegations, the court noted Fairfax’s

agreement that the encounters occurred—though consensually, other

news outlets had aired the accusers’ stories, and the court’s finding that

CBS made some effort to contact witnesses Fairfax identified. JA388-89.

It then weighed that “evidence” against Fairfax’s allegations, which the

district court relegated to a footnote. JA388 n.10.

Fairfax alleged, among other things, that CBS did not make honest

attempts to reach the witnesses (one of whom worked for CBS), on-air

personnel vouched for the truthfulness of the accusers’ stories, CBS

reported the stories with a bias and pre-conceived narrative in favor of

the accusers, and unlike other media outlets, intentionally failed to

update or correct its reporting with information that undermined the

credibility of Tyson’s and Watson’s allegations. Id. The district court was

unconcerned. In light of its factual findings that CBS had not defamed

Fairfax and in any event had not exhibited actual malice, the district

- 16 -
court dismissed the complaint, ruling that Fairfax also could not state a

claim for intentional infliction of emotional distress on the same grounds.

JA391, 99.

SUMMARY OF THE ARGUMENT

Straightforward application of the allegations of the Amended

Complaint to Virginia defamation law and the constitutional standard

for actual malice ineluctably leads to vacatur of the judgment.2 Under

Virginia law, a party is liable for defamation if it (1) publishes (2)

defamatory material (3) with the requisite state of mind. The parties

agree that CBS published interviews with Vanessa Tyson and Meredith

Watson where each alleged that Fairfax sexually assaulted her. Thus,

the only disputes are whether the broadcasts contained defamatory

material and whether CBS acted with the required state of mind—actual

malice. Fairfax plausibly alleged both.

CBS published defamatory material in two ways. The first is

obvious—CBS published Tyson’s and Watson’s stories. Those stories

2 The district court dismissed Fairfax’s claim for intentional infliction of

emotional distress solely on the ground that “to the extent the defamation
claim fails, so must the IIED claim.” JA392. Therefore, vacating the
district court’s ruling with respect to the defamation claim also would
revive the intentional infliction of emotional distress claim.

- 17 -
contained numerous falsehoods, including that the sexual contact with

Fairfax was not consensual. Under Virginia law, accusing a person of a

crime of moral turpitude is defamation per se, as is accusing someone of

conduct that renders him unfit for office. The complaint plainly alleges

Tyson’s and Watson’s statements were false. Thus, the district court

erred when it ruled Fairfax failed to plausibly allege CBS published

defamatory material.

CBS further published defamatory material when its CBS This

Morning co-hosts endorsed Tyson’s and Watson’s stories with statements

like “Feels like she was forced,” and “All these years later, that pain has

stuck with them about how they felt in that moment, and how it has

affected them for decades.” The district court correctly recognized that

vouching for the truth of Tyson’s and Watson’s defamatory statements

would be defamatory material itself, but it ruled that the complaint had

not plausibly alleged such because, when it viewed the entire interviews,

the district court found the only plausible explanation to be that the

statements are not commentary on the underlying events; rather they

are statements about the co-hosts’ impressions of Tyson’s and Watson’s

beliefs. It strains credulity, given the statements made, to make that

- 18 -
assertion, but at the very least, it is not the only plausible interpretation.

A reasonable juror easily could interpret the co-hosts’ myriad supportive

statements as endorsement of Tyson’s and Watson’s veracity. Thus,

Fairfax plausibly alleged that CBS published defamatory material in

that respect as well.

The district court further ruled that Fairfax had not plausibly

pleaded actual malice on CBS’s part. This, also, was erroneous. Under

Federal Rule of Civil Procedure 9(b), malice can be pleaded generally.

Regardless, Fairfax pleaded facts with specificity that, together or apart,

could establish to a reasonable juror that CBS acted with reckless

disregard for the truth. Among those are the fact that the interviewer,

Gayle King, did not ask basic questions that would have damaged the

credibility of the accusers—even after Fairfax’s spokesperson indicated

they would have no answers to such questions. For instance, the

spokesperson suggested that King ask who Watson saw before, during,

and after the purported assault. Watson either would have to lie, or she

would admit that an eyewitness was there the whole time—the

eyewitness would confirm that all contact was consensual. The

spokesperson also gave CBS a list of four witnesses and CBS claims to

- 19 -
have been unable to contact them, even though CBS’s reporter recognized

one was a lawyer who worked at CBS.

The list of indicia of actual malice goes on, but the district court

rejected the complaint’s allegations of actual malice as implausible

largely based on factual findings from outside the complaint that had not

been tested in discovery and by again usurping the role of the jury,

applying its own inferences that were not taken in the light most

favorable to the non-movant, Fairfax. Fairfax’s complaint went well

beyond the requirement of making plausible allegations of defamatory

material and plausible allegations of actual malice. Even with the

district court’s erroneous findings of fact, the allegations are plausible.

And the district court’s venture outside the allegations of the complaint

only exacerbated the error. The judgment should be reversed, and the

case should be remanded to the district court for further proceedings.

ARGUMENT

This Court reviews a district court’s grant of a motion to dismiss de

novo. Virginia Citizens Def. League v. Couric, 910 F.3d 780, 783 (4th Cir.

2018).

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I. Fairfax adequately pleaded that CBS published
defamatory statements.

A. CBS defamed Fairfax both by publishing false

statements by Fairfax’s accusers and by endorsing
them.

Under Virginia law, to state a claim for defamation, one must allege

the defendant published a defamatory statement with a culpable state of

mind. Virginia Citizens, 910 F.3d at 783. There is no dispute that the

statements at issue here were published. The statements also were

defamatory per se as set out by Virginia law. Because Fairfax is a public

figure, the Constitution of the United States modifies the culpable state

of mind to actual malice. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-

80 (1964).

Under Virginia law, a statement can be defamatory per se or

defamatory by implication. Carwile v. Richmond Newspapers, Inc., 196

Va.1, 7 (1954). A statement is defamatory per se if it “impute[s] to a

person the commission of some criminal offense involving moral

turpitude, for which the party, if the charge is true, may be indicted and

punished.” Id. A statement also is defamatory per se if it “impute[s] to a

person unfitness to perform the duties of an office or employment of

profit, or want of integrity in the discharge of the duties of such an office

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or employment,” or if it “prejudice[s] a person in his or her profession or

trade.” Id. Watson’s and Tyson’s allegations that Fairfax sexually

assaulted them, of course, meet all these criteria, as do many of the

details they provided. The Complaint plainly alleges those statements

are false. JA80-82. It is indisputable that, taken in the light most

favorable to Fairfax, those statements are thus defamatory per se. So,

with respect to CBS’s publication of those statements, the only remaining

question is whether CBS had the requisite state of mind—actual malice.

The CBS co-hosts then doubled down on the defamation by

vouching for Tyson and Watson. “[T]o render words defamatory and

actionable it is not necessary that the defamatory charge be in direct

terms but it may be made indirectly, and it matters not how artful or

disguised modes in which the meaning is concealed if it is in fact

defamatory.” Carwile, 196 Va. at 7; Schaecher v. Bouffault, 290 Va. 83,

92 (2015). When a court interprets the terms a defendant has used to

determine whether a reasonable person may find them defamatory,

“every fair inference that may be drawn from the pleadings must be

resolved in the plaintiff’s favor.” Carwile, 196 Va. at 8; Schaecher, 290

Va. at 93.

- 22 -
 In Carwile, the plaintiff, who was a lawyer, had alleged corruption

in the Richmond City Police Department in radio addresses demanding

a grand jury investigation. Id. at 3. Ultimately, a grand jury was

impaneled but it did not return an indictment. Id. The next day, the

Defendant’s newspaper, the Richmond Times-Dispatch, published a story

with the grand jury result. Id. It also stated that the reporter had asked

officials if they would act against Carwile for his allegations, and it noted

that the State Bar can request that an attorney violating ethics rules may

be disbarred. Id. The trial court dismissed the claim on the ground that

the article contained nothing defamatory, and the Supreme Court of

Virginia reversed. Id. 8. The court recognized that a reasonable juror

could view the question and the statement about disciplinary action as

implying “that the plaintiff is guilty of unethical and unprofessional

conduct for his charges made against the Police Department; for which

conduct the defendant suggests in a veiled but pointed way that the

plaintiff could and should be subjected to disbarment proceedings.” Id.

Here, a reasonable juror could find the CBS co-hosts’ statements

were endorsements of the veracity of Tyson’s and Watson’s allegations.

The district court correctly recognized that such an endorsement is

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actionable defamation. JA384 (“Whether the broadcasts constitute

actionable defamation against CBS, however, depends on whether a

reasonable viewer would understand that CBS was presenting or

implying either accusers’ statements as factually true.”). Thus, had the

CBS co-hosts stated, “I can tell they’re telling the truth,” that statement

would have been actionable. The question, then, is whether any

reasonable juror could interpret the co-hosts’ statements as “I can tell

they’re telling the truth.”

In a segment aired immediately after the Tyson interview, co-host

Norah O’Donnell said it “Feels like she was forced.” JA375. Additionally,

Gayle King remarked that “it’s almost like she’s going back to the

moment that she believed,” and Bianna Golodryga said “Something

clearly changed when she was talking through what transpired, and you

could see where she got very emotional and went to that dark place.” Id.

Immediately after Watson’s interview, O’Donnell said “[a]ll these years

later, that pain has stuck with them about how they felt in that moment,

and how it has affected them for decades.” JA377. Of course a reasonable

juror could interpret these statements as endorsement of Tyson’s and

Watson’s veracity and of the co-hosts’ belief that the two women had, in

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fact, been sexually assaulted by Fairfax as they falsely claimed in their

interviews.

The district court committed two key errors in finding, as a matter

of law, that CBS had not made a defamatory statement. First, it failed

to acknowledge that Watson’s and Tyson’s statements were defamatory

themselves. The error there is self-evident. The Defendants published

statements that were defamatory per se. Thus, those statements have

defamatory meaning. Second, the court found the CBS co-hosts’

statements non-defamatory by usurping the role of the jury in making its

own inferences to find its theory of the most plausible interpretation to

be the only plausible interpretation.

The district court recognized that, “when taken in isolation, the[]

relied upon comments could arguably cause a reasonable viewer to infer

that the CBS co-hosts believed to some extent certain aspects of these

accusers’ stories.” JA385. But it ruled that they were not actionable

when “considered within the context of the broadcasts in their entirety.”

Id. According to the district court, the co-hosts’ statements did not imply

their endorsement because King announced that Fairfax had denied the

allegations, and in the interviews, King “pressed both women” on certain

- 25 -
issues. JA385-86. The district court did not explain how that is

relevant—it is not. A perfunctory notation of one party’s denial, after an

interview where the accuser was asked some questions that purport to be

hard (but not the hard ones they had no answer to, which were given to

CBS by Fairfax) does not change the nature of the co-hosts’ subsequent

endorsements.

The case the district court relied on provides an apt contrast. It

cited Virginia Citizens, 910 F.3d at 786, to assert that defamatory

statements in a news story must be viewed in context of the entire story

to determine whether they have defamatory meaning. JA385. In

Virginia Citizens, the plaintiffs’ suit was based on an interview in which

the defendant doctored a clip to eliminate their answer to a question. 910

F.3d at 786. The plaintiffs asserted this made them look incompetent.

Id. But that doctoring came after three minutes of an interview where

the plaintiffs were able to cogently answer questions. Id. The Court

determined that, “at worst, the plain, ordinary meaning of this edit

conveys that these particular members of the VCDL, after answering a

series of related questions, did not have a ready-made answer to a

- 26 -
nuanced policy question.” Id. The edit did not suggest that they were

ignorant or incompetent in general, which was the core of their claim.

Virginia Citizens is inapplicable here. The Court there confronted

an allegation that the plaintiffs were defamed by being made to look

incompetent. Id. And the rest of the interview made them look

competent. Id. Here, the district court correctly recognized that the

comments could cause a reasonable viewer to infer that the co-hosts

believed the accusers. JA385. The greater context does not change that.

It only shows a perfunctory attempt at looking like it was challenging

Tyson’s and Watson’s stories. The rest of the interview certainly does

not, unlike in Virginia Citizens, suggest that CBS disbelieves Tyson and

Watson.

The court further asserted that, in context, the co-hosts’ statements

only suggest that the co-hosts are acknowledging that Tyson and Watson

believe their own statements. JA386. That does not square with the

words they used. “Feels like she was forced” does not suggest that

O’Donnell was simply noting that Tyson believed her own story. And “we

have now seen example after example of how it is as real as if it happened

yesterday”—a quote the district court cited for its implausible

- 27 -
interpretation, JA386 n.6—plainly states Co-Host John Dickerson’s

endorsement that the events Tyson and Watson described were “real.”

These statements have clear defamatory meaning—at the very least, a

reasonable juror could apply his or her own inferences to so find.

The district court’s ruling undermines the core of the motion to

dismiss standard. It substituted its own inferences—drawn in the

defendants’ favor—for those of the jury. A reasonable juror can recognize

CBS noting Fairfax’s denial as a mere fig leaf. A reasonable juror can

recognize that CBS did not really press both women when it failed to even

ask Tyson and Watson basic questions that would have undermined their

credibility. And as the court expressly stated, a reasonable juror could

see the co-hosts’ comments as endorsements of the truth of the

allegations. It was not the district court’s place to weigh the inferences.

Virginia Citizens does not support such a frolic in the jury’s domain.

II. Fairfax has alleged sufficient facts for a reasonable juror

to find actual malice.

A. The complaint alleges myriad facts that, independently

or taken together, raise a plausible inference of actual
malice.

The Complaint plausibly alleges the necessary culpable state of

mind—actual malice. In the defamation context, a plaintiff proves a

- 28 -
defendant’s subjective malice by establishing that the defendant

published the defamatory material knowing it was untrue or with

reckless disregard for the truth. Sullivan, 376 U.S. at 279-80. There is

no heightened pleading standard for malice in a defamation case.

Mayfield v. Nat’l Ass’n for Stock Car Racing, Inc., 674 F.3d 369, 377 (4th

Cir. 2012). It is subject to the Rule 9(b) standard that “malice, intent,

knowledge, and other conditions of a person’s mind may be alleged

generally.” Fed. R. Civ. P. 9(b); see also Mayfield, 674 F.3d at 377 (“Rule

9(b) ensures there is no heightened pleading standard for malice”).

The plaintiff may prove actual malice through identifying a single

fact that shows malice, or by cumulating circumstantial evidence of

malice. Reuber v. Food Chemical News, Inc., 925 F.2d 703, 712 (4th Cir.

1991) (en banc); see also Harte-Hanks Comms. v. Connaughton, 491 U.S.

657, 683 (1998) (“newspaper’s decision not to listen to tapes” of an

interview was relevant as “one piece of evidence in a much larger picture”

on actual malice). “The actual malice test could be met if the defendant

had ‘obvious reasons to doubt the veracity of the informant or the

accuracy of his reports.’” Schiavone Constr. Co. v. Time, Inc., 847 F.3d

1069, 1090 (3d Cir. 1988) (overturning grant of summary judgment

- 29 -
against defamation plaintiff and holding a reasonable juror could find

actual malice). And when a reporter has potentially exculpatory

information at its disposal but chooses to present a false narrative of

guilt, a reasonable juror can find actual malice. Young v. Gannett

Satellite Info. Network, Inc., 734 F.3d 544, 548 (6th Cir. 2013) (affirming

jury verdict of liability where reporter noted that police officer had been

fired for having sex with a woman while on duty based on arbitrator’s

report that contained “red flags” and overturned firing)

In Palin v. New York Times Company, the Second Circuit reversed

the district court’s dismissal of Sarah Palin’s defamation claim because

the district court applied its own judgment of the most plausible

explanation, rather than allowing a jury to draw the inferences at a trial.

940 F.3d 804, 815 (2d Cir. 2019) (The test is whether the complaint is

plausible, not whether it is less plausible than an alternative

explanation.”). There, a New York Times Columnist claimed Palin incited

political violence against Gabrielle Giffords years earlier. Id. at 808. He

cited a publication from Palin’s political action committee that

purportedly placed crosshairs over Giffords and 19 other Democrats,

“suggesting that the congressmembers themselves had been pictured on

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the map.” Id. In fact, the map had overlaid crosshairs over the districts

on the map. Id. Within a day, the Times “changed the editorial and

issued a correction.” Id.

The district court held a hearing in which the author testified, and

after the testimony, the court granted the Times’s motion to dismiss. Id.

at 809. The Second Circuit reviewed Palin’s amended complaint and held

that she had stated a plausible claim for defamation. Id. at 813. “Palin’s

overarching theory of malice [was] that [the author] had a ‘pre-

determined’ argument he wanted to make in the editorial.” Having that

goal caused the author to “publish a statement about Palin that he either

knew to be false, or at least was reckless as to whether it was false.” Id.

Palin did not allege direct evidence of malice; she relied on three

areas of circumstantial evidence. Id. First, given the left-leaning

editorial positions of the Times and the author’s prior publication, and

the author’s personal anti-gun experience, there was a plausible

inference that the author’s claim that he simply did not correctly

remember the original Palin document was untrue. Id. at 814. Second,

the article linked to a prior article showing and discussing the correct

Palin map. Id. at 815. The Times argued that this was proof of the

- 31 -
author’s inadvertence, but Palin argued that the ready availability of the

correct version was further proof that the author knew or recklessly

disregarded the truth. Id. The Second Circuit agreed that “the inclusion

of the hyperlinked article gives rise to more than one plausible inference,

and any inference to be drawn from the inclusion of the hyperlinked

article was for the jury—not the court.” Id. Third, the swift correction

did not necessarily undermine the allegations of malice because it was

also plausible that the Times corrected the story to avoid public backlash.

Id. In light of these facts, the Second Circuit held that “the assertion that

Bennet knew the statement was false, or acted with reckless disregard

as to whether the statement was false, is plausible.” Id.

Here, the allegations of reckless disregard for the truth are more

compelling than the allegations in Palin, and they at least plausibly

allege actual malice, which only needs to be alleged “generally.” Fed. R.

Civ. P 9(b).

1. Fairfax’s spokesperson gave CBS Co-Host Gayle King key

questions to ask—basic questions about who else was around

during Watson’s encounter with Fairfax and where it

occurred. JA93. King did not ask those questions. JA93-94.

- 32 -
2. Fairfax’s spokesperson gave CBS four witnesses who could

provide information regarding the encounters on which the

allegations were based two months before the interviews

aired. JA84. The CBS reporter, O’Keefe, purported to have

called them but received no response. JA85. He then placed

the onus on Fairfax to do his job for him and convince the

witnesses to come forward. Id.

3. O’Keefe himself identified one of the names Fairfax’s

spokesperson gave him as a CBS lawyer who works on

defamation cases. JA85-86. Clearly, CBS never obtained

information from him either on the record or on background.

Or if it did, it suppressed that information. In either event,

that is evidence of actual malice—a search for confirmation of

Tyson’s and Watson’s stories, rather than a search for truth.

4. CBS knew that Duke University had refuted part of Watson’s

story in which she claimed she had been raped by another

student at Duke and that she had reported it to the school.

JA95.

- 33 -
5. CBS knew that Tyson’s story had first been circulated by

political rivals of Fairfax and published by a conservative

political website right when it appeared the Governor of

Virginia might resign and Fairfax might ascend to the post,

JA77, indicating that the story was politically motivated.

6. CBS knew Tyson had spoken publicly about her personal

experience with sexual assault, but never mentioned

anything referring to her subsequent allegation against

Fairfax. JA78.

7. CBS knew Tyson and Watson refused to participate in

investigations by law enforcement in the places they claim

they were sexually assaulted—instead insisting on public

hearings. JA93. This further indicates the stories were

politically motivated.

8. CBS, despite having easy access to Fairfax’s spokesperson,

failed to inform Fairfax of the interviews or request his

response to the interviews. JA87.

9. CBS knew that The Washington Post previously had

investigated Tyson’s allegation for months and decided not to

- 34 -
 publish it because it was uncorroborated, but CBS failed to

mention that crucial fact. JA99-100.

10. The allegations were not news—they were made in early

February 2019, and CBS published the interviews two

months later in April, thereby resurrecting them. JA87.

11. CBS had motive. It had been rocked with its own allegations

of sexual misconduct against former CBS This Morning Co-

Host Charlie Rose and its CEO, Les Moonves. JA86-87. CBS

and its anchors as individuals had plenty of reason to distance

themselves from those allegations against a former anchor of

their program and other top executives at the network by

pursuing an attacking agenda and trying to prove the truth of

other allegations.

12. CBS continues to hold steadfast by refusing to correct or

retract either of the stories despite receiving further evidence

that they are untrue. CBS has been aware of the exculpatory

eyewitness of the Watson encounter at least since July 9,

2019. JA105-06. Neither Watson nor her attorney has denied

the eyewitness’s presence, that the encounter took place in the

- 35 -
 eyewitness’s dorm room, or that Watson intentionally left him

out of her false story that she told to Gayle King and millions

of CBS viewers. Other major media outlets, including The

Washington Post, The New York Times, and the Associated

Press immediately updated their reporting, but CBS has

refused to do so for over a year despite numerous requests by

Fairfax. Id. Indeed, in response to a letter from Fairfax’s

counsel demanding that CBS update or correct its coverage,

CBS admitted it did not want to “brand Ms. Watson as a liar.”

JA89.

Just like the editorial author in Palin, the CBS This Morning hosts

had a pre-determined story they wanted to tell with the interviews—that

Fairfax had sexually assaulted Tyson and Watson 15 and 19 years ago.

The Supreme Court has held that “the purposeful avoidance of the truth”

establishes actual malice. Harte-Hanks Comms., 491 U.S. at 692. A

reasonable juror could find, based on all of these allegations, that CBS

purposefully avoided the truth with, among other things, its limited

purported efforts to contact witnesses—one even being an in-house

attorney in CBS’s control—its refusal to ask basic questions that would

- 36 -
have undermined Tyson’s and Watson’s credibility, and its ongoing

refusal to update or correct its reporting. Thus, Fairfax adequately

pleaded actual malice.

The district court either wrongly rejected or simply failed to address

each of these grounds. It found that the evidence of CBS’s failure to

contact the four witnesses Fairfax’s spokesperson sent them is countered

by the statement of CBS’s reporter—improperly taken as true—that he

attempted to contact them. JA389. The court then used that finding-of-

fact to infer that CBS had no more duty to investigate than calling these

people once.

The district court also rejected the allegation that Fairfax’s

subsequent public announcement regarding the eyewitness, and CBS’s

refusal to correct its story, are irrelevant through a tautology asserting

that, assuming post-publication conduct can be relevant to establish

actual malice, Fairfax’s failure to identify the existence of the eyewitness

before the interviews aired absolved CBS from any duty to correct its

story later. JA391 n.12. The story remains on the CBS News website

and social media platforms, and CBS’s refusal to provide any correction

- 37 -
when every other major news outlet did so further shows the actual

malice CBS harbors.

With respect to evidence of CBS’s motive, the court stated that

motive, standing alone, is not enough, and there is not enough additional

evidence of actual malice to cumulatively plead actual malice. JA391. It

further asserted that the complaint “lacks any detail about how this

background motivated, or was related to, the publication of the

challenged broadcasts.” Id. (emphasis added).

The court failed to recognize that it was imposing a standard even

higher than pleading with specificity. Under the district court’s new

construction, a plaintiff not only must plead facts supporting actual

malice with specificity (already an erroneously high burden), a plaintiff

must “detail” the inferences from those facts in a pleading. The inference

a reasonable juror can make is obvious—Charlie Rose’s old co-hosts, and

the network, wanted to distance themselves from his and Les Moonves’s

alleged sexual malfeasance. The court cited no authority that such an

inference must be included in the complaint. In any event, contrary to

the district court’s assertion, the complaint went above and beyond the

pleading burden—which is to plausibly allege malice generally—to detail

- 38 -
that “in the immediate aftermath of those high-profile #MeToo scandals,

the network sought to visibly align itself on the side of perceived victims

to improve its public image.” JA62. Fairfax pleaded the inference even

though he had no burden to do so. The district court was wrong both in

the burden it applied and whether Fairfax had met the burden.

The district court also found that CBS could not possibly have

harbored actual malice because “CBS asked questions of both women

that raised issues as to their veracity and motivations.” But again, the

district court has no place usurping the role of a jury. A reasonable juror

could find CBS’s choice to ask and air basic questions to which the

accusers had canned answers, but failure to ask or air basic questions in

response to which the accusers would have to lie to protect their apparent

credibility as evidence of malice, not evidence of innocence.

Together and apart, the numerous allegations establishing CBS’s

reckless disregard for the truth provide plenty for a reasonable juror to

find that CBS and its CBS This Morning co-hosts acted with actual

malice, and the district court erred by simply finding them implausible

based on the district court’s own inferences.

- 39 -
 B. The district court improperly relied on assertions
outside the complaint that are irrelevant in any event
because they must be tested in discovery and weighed
by the jury.

The district court went further than only finding allegations of

reckless disregard for the truth implausible—it based many of those

decisions on factual findings and inferences unsupported by the

complaint and sometimes supported only by information outside the

complaint offered up by CBS.

A district court resolving a motion to dismiss a complaint under

Rule 12(b)(6) must take the allegations in the complaint as true, and it is

reversible error to apply facts and inferences that are not in the

complaint. E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435,

448-49 (4th Cir. 2011). If the complaint relies on a critical document that

forms the basis of liability, like a contract, the court may take the

contents of that document into account, but to the extent it otherwise

reaches outside the four corners of the complaint, the court must convert

a motion to dismiss into a motion for summary judgment and allow the

non-movant to respond accordingly. Id.

The district court credited numerous “facts” as true, though there

is nothing in the complaint establishing their truth. For instance, the

- 40 -
court determined that CBS reporter Ed O’Keefe actually contacted the

witnesses on the list Fairfax’s spokesperson gave him based solely on

O’Keefe’s text in the complaint stating he had done so and they did not

call him back. JA389. The complaint does not assert that O’Keefe’s text

is true. In any event, there is no context to this. Fairfax has not had the

opportunity to ask O’Keefe at a deposition, under oath, whether he

contacted these people, whether he attempted more than once, or even

whether he left a voicemails or text messages asking them to call him

back. All of this would come out in discovery.

Similarly, the district court credited CBS’s claim that it offered

Fairfax the opportunity to sit for an interview on the allegations. JA374,

89. Again, there is nothing in the record to support that assertion. At

page 5, the district court claims “Fairfax declined CBS’ requests for a

similar interview with him,” JA374, but it only cites a statement from

Gayle King after one of the interviews that they were “hoping that

Lieutenant Governor Fairfax will speak to [them] at some point.” JA146;

see also JA374, citing JA145 (which does not include any reference to a

potential interview with Mr. Fairfax). Nothing in that establishes as fact

that CBS offered to interview Fairfax. Later, citing paragraph 189 of the

- 41 -
Complaint, the district court found that CBS “provided Fairfax an

opportunity to respond to the interviews, which he declined.” JA389.

Paragraph 189 says nothing of the sort, and the Complaint alleges just

the opposite at paragraph 118—CBS did not inform Fairfax of the

interviews and thus it is clear CBS did not request his response. JA87,

106-07.

Moreover, and again, there is no context. Discovery would allow

Fairfax to explore when CBS offered this purported opportunity and

under what circumstances, such as whether CBS placed conditions on

this purported opportunity. It would also allow Fairfax to explore

whether that purported offer was made before or after CBS knew it would

air full interviews containing the defamatory material and in what

context. A reasonable juror could find that after CBS already had aired

pervasive advertisements promoting its interviews with Fairfax’s

accusers, CBS had no intention of providing an evenhanded “both sides”

approach to such an interview.

Regardless, the fact that the district court found the purported offer

of an interview important is also erroneous. It would be a dangerous

precedent to create a safe harbor from liability for publishing defamatory

- 42 -
information by only requiring that the publisher demand the victim

personally appear to refute the lie. Every public figure would be too busy

giving interviews to do his or her job. Perhaps more importantly, it would

give awesome power to any person or organization who declares itself a

journalist and possesses defamatory material—sit for an interview on my

terms, or I will attempt to ruin you by publishing a one-sided story based

on unfounded allegations against you. That is exactly what happened

here. CBS claimed that Fairfax’s failure to follow CBS’s commands and

Fairfax’s failure to do CBS’s job for it absolved CBS from its defamatory

conduct thereafter. The district court agreed, and that was reversible

error.

CONCLUSION

For the foregoing reasons, Appellant Justin Fairfax respectfully

requests that this Court vacate the district court’s judgment dismissing

this case and remand the case to the district court for further

proceedings.

- 43 -
 Respectfully Submitted,
/s/ Tillman J. Breckenridge
Tillman J. Breckenridge
BRECKENRIDGE PLLC
1325 G St., NW, Suite 500
Washington, DC 20005
202-567-7733
tjb@breckenridgepllc.com

- 44 -
 CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I

certify that this Brief of Appellant is proportionately spaced, Century

Schoolbook 14pt type, and contains 8305 words excluding parts of the

document exempted by Rule 32(a)(7)(B)(iii).

/s/ Tillman J. Breckenridge

Tillman J. Breckenridge
BRECKENRIDGE PLLC
1325 G St., NW, Suite 500
Washington, DC 20005
202-567-7733
tjb@breckenridgepllc.com

July 27, 2020 Counsel for Appellant

 CERTIFICATE OF SERVICE

I certify that on July 27, 2020, the Brief of Appellant was served on

all parties or their counsel of record through the CM/ECF system.

/s/ Tillman J. Breckenridge

Tillman J. Breckenridge
BRECKENRIDGE PLLC
1325 G St., NW, Suite 500
Washington, DC 20005
202-567-7733
tjb@breckenridgepllc.com