Defamation Law: When the News Becomes the News
In the past month, two prominent lawsuits have made the news media the focus of the news.
On September 9, the conservative network One America News Network (“OANN”) filed a $10 million lawsuit against MSNBC host Rachel Maddow for calling the company “literally … paid Russian propaganda.”[1] Filed in the Southern District of California, the suit accuses Maddow of making the claim in retaliation for a statement OANN president Charles Herring made accusing Comcast, the parent company of MSNBC, of “anti-competitive censorship” by refusing to carry OANN as part of its cable programming.[2]
The lawsuit further accuses the MSNBC host of knowing “this statement was false” and making it with the intent of damaging the company’s business due to its support of President Trump.[3] When OANN sent NBC Universal a retraction request, an attorney for NBC Universal said Maddow responded by “literally” as “the kind of figure of speech that connotes opinion and thus cannot give rise to a defamation claim.”[4] The segment in the suit, which aired July 22, was based on a Daily Beast article reporting that on-air OANN correspondent Kristian Brunovich Rouz was also writing for Sputnik, a state-owned Russian news outlet.[5] “Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government,” Maddow said in a summary of the segment.[6]
But NBC is not the only major network facing a defamation lawsuit. On September 12, Virginia Lieutenant Governor Justin Fairfax filed a $400 million defamation lawsuit against CBS Corporation and CBS Broadcasting in New York.[7] Fairfax’s complaint accuses the network of publishing “intentionally fabricated, false, and politically-motivated statements” made by two women accusing Fairfax of sexual assault during interviews with CBS This Morning’s Gayle King in February.[8] “Fairfax brings this action to restore his reputation and clear his name, ensure the truth prevails, stop the weaponization of false allegations of sexual assault against him, and vindicate his rights under civil law,” the lawsuit, which Fairfax filed in the U.S. District Court for the Eastern District of Virginia, states.[9]
The politician, whom the suit states is “considered a top contender for Governor of Virginia in the 2021 gubernatorial election,”[10] has denied the accusations made by Vanessa Tyson and Meredith Watson. Tyson alleges that Fairfax forced her to perform oral sex on him in a Boston hotel room during the 2004 Democratic National Convention,[11] when Fairfax was serving as a personal aide to then-Democratic vice-presidential candidate Senator John Edwards.[12]Watson’s sexual encounter with Fairfax took place four years earlier, when the two attended Duke University. Watson and Fairfax had a sexual encounter in a fraternity house dorm room, Fairfax’s suit states, with an eyewitness remaining in the room for the entirety of the encounter.[13]
The interviews with Watson and Tyson followed calls for Virginia Governor Ralph Northam to resign, which would have put Fairfax in the governor’s role. A photo from Northam’s 1984 medical school yearbook depicting people in blackface had resurfaced, but Northam ultimately remained in his position.[14] “We stand by our reporting and we will vigorously defend this lawsuit,” CBS News told The Hill.[15] Stuart Karle, a former general counsel of The Wall Street Journal and current adjunct professor at Columbia Journalism School, said that “the standard of care by which the journalists would be judged is for sure ‘actual malice’ in the Fairfax case and very likely ‘actual malice’ in the Herring Network case. I say for sure in the Fairfax case because his complaint alleges he is a ‘public figure.’ Herring’s complaint touts its success in building its massive audience, gaining access to the White House, and positive comments from the President, which would seem also to give it a sufficiently prominent place in the public discourse to support a finding that it is a public figure.”[16]
The “actual malice” standard presents a significant obstacle for plaintiffs. “It requires that to win his case, a public figure/official defamation plaintiff must prove that the journalist published the offending false and defamatory statement (or statements) knowing it was false or in reckless disregard of whether the statement/s were true or false,” Karle said.[17] “As you can see, that’s quite different than ‘malice’ in the sense of ill will or personal animosity. In the context of the Maddow case, she may loathe Herring (I don’t know that she does), and therefore have personal ill will, but that doesn’t mean that she knew that the statement on which Herring has sued were false or that she was reckless as to whether it was true or false.” [18]
George Freeman, the executive director of the Media Law Resource Center, said there is a clear reason why plaintiffs face such a significant burden in defamation cases.[19]. “It’s a difficult burden, but that’s intentionally so because the Supreme Court said that when you’re talking about public officials there should be a hard burden because they want to incentivize—rather than disincentivize—speech on public officials and public figures.[20] It’s a subjective test, so you really have to go inside the mind of the publisher or reporter and prove that they had serious doubts about what they were publishing but published anyway.[21] It requires showing a high degree of awareness of the story’s probable falsity or serious doubts as to its truth. [22] That’s hard to prove, because the reporter is going to say, ‘I believed it.’ [23] So how do you prove it? You prove it through circumstantial evidence obtained through discovery—all the notes, e-mails, and documents related to the story,” along with depositions from the reporter and all the people he interviewed. [24]
One of the allegations is that “CBS reporting staff, including King, Norah O’Donnell, John Dickerson and Bianna Golodryga made comments on-air accepting as fact and vouching for the credibility of the stories told by Watson and Tyson without any independent investigation or objective basis in fact.”[25] The suit further states, “Their commentary is further evidence that CBS acted with actual malice against Fairfax and that CBS was more interested in appearing to take the side of alleged #MeToo victims than in reporting objectively on the facts and establishing the truth or falsity of the allegations made by Watson and Tyson.”[26] Furthermore, Fairfax’s suit states that CBS This Morning acted with actual malice by failing to adequately investigate the Watson allegations using appropriate journalistic standards, failing to adequately investigate the Tyson allegation using appropriate journalistic standards, failing to report that Tyson’s allegation had been carefully investigated by The Washington Post and was found to be uncorroborated, and failing to correct the stories after evidence contradicting them emerged.[27] “Largely what’s pleaded seems to be more along the lines that CBS should have done more reporting and that work would have raised questions as to truth,” Karle said, “but there are lots of cases that stand for the proposition that failing to investigate further isn’t proof of actual malice. (Maybe it is here for reasons that aren’t apparent.) There also isn’t a transcript, but an obvious question is whether the broadcast included Fairfax’s public prior comments on the allegations against him by both women.” [28]
For their part, Tyson’s attorneys, Debra Katz and Lisa Banks, told NPR that the Lieutenant Governor’s lawsuit is “yet another desperate stunt by Mr. Fairfax to preserve his political career at the expense of survivors of sexual assault.”[29] Because of the high burden required to prove the actual malice element of a defamation claim, plaintiffs are rarely successful. Whether Fairfax and Herring Networks will fare better than most other plaintiffs remains to be seen.
Footnotes
