Justin Fairfax v. CBS Corporation ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1298
JUSTIN E. FAIRFAX,
Plaintiff - Appellant,
v.
CBS CORPORATION; CBS BROADCASTING INC.,
Defendants - Appellees.
No. 20-1299
JUSTIN E. FAIRFAX,
Plaintiff - Appellee,
v.
CBS CORPORATION; CBS BROADCASTING INC.,
Defendants - Appellants.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony J. Trenga, Senior District Judge. (1:19-cv-01176-AJT-MSN)
Argued: March 11, 2021 Decided: June 23, 2021
Before KEENAN, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Keenan
and Judge Quattlebaum joined.
ARGUED: Tillman J. Breckenridge, BRECKENRIDGE PLLC, Washington, D.C., for
Appellant/Cross-Appellee. Jay Ward Brown, BALLARD SPAHR LLP, Washington,
D.C., for Appellees/Cross-Appellants. ON BRIEF: Matthew E. Kelley, BALLARD
SPAHR LLP, Washington, D.C., for Appellees/Cross-Appellants.
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RUSHING, Circuit Judge:
In April 2019, the television news program CBS This Morning broadcast interviews
with two women who accused Justin Fairfax, the Lieutenant Governor of Virginia, of
sexual assault. Fairfax denied the allegations and subsequently sued CBS Corporation and
CBS Broadcasting, Inc. (collectively, CBS) for defamation and intentional infliction of
emotional distress. The district court granted CBS’s motion to dismiss the complaint in its
entirety but denied CBS’s motion for attorney’s fees and costs. The parties now appeal,
and we affirm the district court in both respects. Specifically, Fairfax’s complaint fails to
plausibly allege that CBS made the allegedly defamatory statements with knowledge or
reckless disregard of their falsity, as required to state a claim for defamation of a public
official. And the relevant fee-shifting statute by its plain terms is discretionary, not
mandatory or presumptive. We therefore must affirm.
I.
The following facts, taken from Fairfax’s amended complaint and the CBS
broadcasts referenced therein, are assumed to be true for purposes of this appeal. See E.I.
du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
National attention turned to Virginia Lieutenant Governor Justin Fairfax in February
2019, when it appeared that Virginia Governor Ralph Northam might resign after an
offensive photograph from his medical school yearbook surfaced. Under Virginia law, the
lieutenant governor replaces a sitting governor who resigns. Va. Const. art. V, § 16.
Shortly after the Northam photo surfaced, a news website published a private
Facebook message written by Vanessa Tyson, alleging that someone poised to receive a
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“VERY BIG promotion” in Virginia had sexually assaulted her at the 2004 Democratic
National Convention. J.A. 72. National mainstream media outlets reported the allegation
the next day, including The Washington Post, which noted that it could not corroborate
Tyson’s allegation. On February 6, Tyson issued a public statement asserting that Fairfax
was the man who sexually assaulted her in 2004. She alleged that what began as a
consensual encounter turned into sexual assault when Fairfax forced her to perform a sex
act against her will. Tyson called for Fairfax to resign his position as lieutenant governor
and for the Virginia General Assembly to conduct a hearing into the matter.
Two days later, Meredith Watson publicly alleged that Fairfax raped her in 2000
while they were undergraduate students at Duke University. Watson subsequently added
that a Duke athlete had raped her during the 1998–1999 academic year and a Duke official
had discouraged her from reporting it. According to Watson, at a campus party later in
2000 she asked Fairfax why he assaulted her, to which he responded, “I knew that because
of what happened to you last year, you’d be too afraid to say anything.” J.A. 82. Watson
also called for hearings to investigate Fairfax’s conduct.
Fairfax adamantly denied both women’s allegations. Although he admitted that
both sexual encounters occurred, he claimed they were entirely consensual and he did not
force either woman to do anything. Needless to say, the allegations and Fairfax’s response
generated significant publicity.
The day Watson’s story broke, Ed O’Keefe, a CBS News Political Correspondent,
was in contact with Fairfax’s spokesperson. The spokesperson sent O’Keefe a list of names
and phone numbers, saying “Please Ed call these Duke grads.” O’Keefe responded: “We
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are calling the friends and nobody is answering. Urge them to call back.” J.A. 85. O’Keefe
also noted that one of the individuals was apparently an attorney for CBS. Over the
following days and weeks, CBS reporting staff were in regular contact with Fairfax’s
spokesperson and were highly responsive to her outreach. After learning that CBS
intended to broadcast interviews with Tyson and Watson, Fairfax’s spokesperson contacted
CBS journalist Gayle King, urging her to ask Watson questions such as, “What exactly
happen[ed] that day, where, when, did you see anyone else on your way in or out?” and
“Why are you willing to speak in public but not speak to the Durham police/DA regarding
two rape allegations[?]” J.A. 92–93.
On April 1 and 2, CBS This Morning aired its interviews with Tyson and Watson,
who were interviewed separately by host Gayle King. The April 1 broadcast featured
Tyson’s interview, during which she described in detail her allegation that Fairfax sexually
assaulted her in his hotel room in 2004. King posed questions throughout the interview,
including asking Tyson why she did not report the incident. Immediately after the recorded
interview segments, King read from a statement Fairfax had given CBS denying the
allegations. King directed viewers to Fairfax’s full statement on CBS’s website and stated,
“[w]e are hoping that Lieutenant Governor Fairfax will speak to us at some point.” J.A.
145. Then King and her co-hosts shared their reactions to the interview, saying among
other things, “I felt at some point it’s almost like she’s going back to the moment that she
believed”; “[s]omething clearly changed when she was walking . . . through what
transpired”; and “[y]eah, feels like she was forced.” J.A. 139–140. The co-hosts also
observed, “that pain has stuck with them about how they felt in that moment and how it
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has affected them now for decades” and “we have now seen example after example of how
it is as real as if it happened yesterday.” J.A. 145–146.
The April 2 broadcast featured Watson’s interview, in which she recounted her
allegation that Fairfax raped her in a dorm room at Duke University in 2000 and later told
her that he had done so because he knew, based on the sexual assault she suffered the
previous year, that she would be too afraid to do anything about it. King again posed
questions throughout the interview, including asking Watson about reports regarding her
personal life that implicated her credibility. After the interview segments, King read from
a statement Fairfax provided CBS denying the allegations. King also reported that,
according to his spokesperson, Fairfax had taken a polygraph test that supported his
denials. Regarding Watson’s allegations about the Duke athlete, King reported that the
athlete denied the allegations and Duke claimed to have first learned of them in February
2019. King noted that both Tyson and Watson sought a legislative hearing instead of a
criminal investigation because they claimed investigation results could be kept private,
whereas a hearing would be public.
In July 2019, Fairfax issued a public letter to a district attorney in North Carolina,
alleging for the first time the existence of an eyewitness to the events underlying Watson’s
allegations. Shortly thereafter, Fairfax demanded that CBS retract the interviews, and CBS
refused.
Fairfax then sued CBS in district court, asserting defamation and intentional
infliction of emotional distress under Virginia law. CBS moved to dismiss the complaint
for failure to state a claim and sought attorney’s fees and costs. The district court granted
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the motion to dismiss and denied the motion for fees. Both parties appealed, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
“We review de novo the grant of a motion to dismiss for failure to state a claim,”
applying the same standards as the district court. Garnett v. Remedi Seniorcare of Va.,
LLC, 892 F.3d 140, 142 (4th Cir. 2018) (internal quotation marks omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R.
Civ. P. 12(b)(6). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Conclusory statements and facts “merely
consistent with a defendant’s liability” do not suffice to carry a complaint over “the line
between possibility and plausibility.” Id. (quoting Twombly, 550 U.S. at 557). In
evaluating a complaint at this stage, a court also may consider documents integral to and
relied upon in the complaint, such as the two CBS This Morning broadcasts at issue here,
so long as the plaintiff does not question their authenticity, which Fairfax does not. Phillips
v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999).
To state a claim for defamation under Virginia law, a plaintiff must plead
(1) publication of (2) an actionable statement—that is, a statement that is both false and
defamatory—with (3) the requisite intent. Schaecher v. Bouffault, 772 S.E.2d 589, 594
(Va. 2015) (quoting Tharpe v. Saunders, 737 S.E.2d 890, 892 (Va. 2013)); see also Va.
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Citizens Def. League v. Couric, 910 F.3d 780, 783 (4th Cir. 2018). The necessary intent
“depends, in part, on whether a plaintiff is a public or private figure.” Jackson v. Hartig,
645 S.E.2d 303, 308 (Va. 2007); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–
347 (1974); Curtis Pub. Co. v. Butts, 388 U.S. 130, 134 (1967); New York Times Co. v.
Sullivan, 376 U.S. 254, 279–280 (1964). Because Fairfax is admittedly a public official,
he may seek redress for the allegedly defamatory statements only if CBS published the
statements with “actual malice.” New York Times, 376 U.S. at 279–280. “Actual malice”
is a legal term of art; in this context, it does not mean ill will or intent to injure but rather
that the defendant made the defamatory statement “with knowledge that it was false or with
reckless disregard of whether it was false or not.” Id.; see also Harte-Hanks Commc’ns,
Inc. v. Connaughton, 491 U.S. 657, 666 (1989).
The freedom of speech guaranteed by the First and Fourteenth Amendments
requires this heightened intent standard in defamation actions brought by public officials,
the Supreme Court has reasoned, “to insure the ascertainment and publication of the truth
about public affairs.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968); see also CACI
Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008). Defamatory falsehoods
are of no social value, yet we must tolerate and even shield some erroneous publications in
the realm of public affairs because “the stake of the people in public business and the
conduct of public officials is so great that neither the defense of truth nor the standard of
ordinary care would protect against self-censorship and thus adequately implement First
Amendment policies.” St. Amant, 390 U.S. at 731–732; see also New York Times, 376 U.S.
at 279 (“A rule compelling the critic of official conduct to guarantee the truth of all his
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factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—
leads to . . . ‘self-censorship.’”); Ryan v. Brooks, 634 F.2d 726, 733 (4th Cir. 1980). This
rule “protects the paramount public interest in a free flow of information to the people
concerning public officials,” and “anything which might touch on an official’s fitness for
office is relevant,” even though it may also concern “the official’s private character.”
Garrison v. Louisiana, 379 U.S. 64, 77 (1964); see also Gertz, 418 U.S. at 344–345
(“[S]ociety’s interest in the officers of government is not strictly limited to the formal
discharge of official duties.”).
Only a knowing or reckless falsehood, therefore, will provide grounds for a public
official to seek compensation for defamation. Accordingly, “[a]ctual malice is a subjective
standard.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714 (4th Cir. 1991) (en banc);
see also Horne v. WTVR, LLC, 893 F.3d 201, 211 (4th Cir. 2018). A plaintiff must prove
that the defendant published the statement despite actually knowing it was false or
harboring “a ‘high degree of awareness of . . . probable falsity.’” Reuber, 925 F.2d at 714(alteration in original) (quoting Garrison, 379 U.S. at 74). This standard “requires ‘much
more than a failure to exercise ordinary care.’” Hatfill v. New York Times Co., 532 F.3d
312, 325 (4th Cir. 2008) (quoting Ryan, 634 F.2d at 732). Recklessness “is not measured
by whether a reasonably prudent man would have published, or would have investigated
before publishing.” St. Amant, 390 U.S. at 731; see also CACI Premier Tech., 536 F.3d at
300. Rather, a plaintiff must prove that “the defendant in fact entertained serious doubts
as to the truth of his publication.” St. Amant, 390 U.S. at 731. Of course, here we review
a motion to dismiss; the evidence is not yet in. We accordingly must evaluate whether
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Fairfax in his amended complaint alleged facts that, if proven, create a plausible inference
that CBS aired the broadcasts with knowledge or reckless disregard of their falsity. See
Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012)
(“[T]he usual standards of notice pleading apply in defamation cases.” (quoting Hatfill,
416 F.3d at 329)); cf. Harte-Hanks, 491 U.S. at 668 (“[A] plaintiff is entitled to prove the
defendant’s state of mind through circumstantial evidence.”).
Fairfax does not allege that CBS broadcast the April 1 and 2 programs actually
knowing that either Tyson’s or Watson’s allegation of sexual assault was false. To plead
actual malice, therefore, Fairfax must plausibly allege that CBS aired the broadcasts with
a “high degree of awareness” that Fairfax likely did not sexually assault Tyson or Watson.
Garrison, 379 U.S. at 74; see also Hatfill, 532 F.3d at 325. Fairfax attempts to meet this
standard with allegations intended to show that CBS failed to investigate the women’s
accounts despite reason to question their credibility. “Failure to investigate does not in
itself establish bad faith.” St. Amant, 390 U.S. at 733; see also Harte-Hanks, 491 U.S. at
688 (“[F]ailure to investigate before publishing, even when a reasonably prudent person
would have done so, is not sufficient to establish reckless disregard.”). However, failure
to investigate before reporting a third party’s allegations can be reckless “where there are
obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”
Harte-Hanks, 491 U.S. at 688 (quoting St. Amant, 390 U.S. at 732); see also id. at 692
(“Although failure to investigate will not alone support a finding of actual malice, the
purposeful avoidance of the truth is in a different category.” (internal citation omitted));
CACI Premier Tech., 536 F.3d at 300.
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Fairfax claims CBS had obvious reasons to doubt Tyson’s and Watson’s veracity
and yet failed to investigate their accusations or shielded itself from the truth. But the
amended complaint fails to allege facts that make these contentions plausible. As to
Tyson’s credibility, Fairfax alleges CBS knew that: Tyson had spoken publicly about
another experience with sexual assault but had never previously mentioned Fairfax;
Tyson’s story was politically motivated; and The Washington Post was initially unable to
corroborate Tyson’s allegation. Tyson’s previous reticence to publicly report the encounter
with Fairfax, and her alleged political motivation for disclosing when she did, do not make
her allegations so obviously doubtful that CBS was reckless in reporting them. As we have
observed, self-interest and politics “motivate[] many news sources; if dealing with such
persons were to constitute evidence of actual malice on the part of a reporter, much
newsgathering would be severely chilled.” Reuber, 925 F.2d at 715. That The Washington
Post could not initially corroborate Tyson’s story because she had not told anyone what
happened similarly does not suggest that, months later, CBS actually held serious doubts
about her veracity. Indeed, Fairfax himself confirmed to CBS that this sexual encounter
with Tyson occurred, albeit consensually.
Regarding Watson’s account, Fairfax alleges: King did not ask Watson the
interview questions provided by Fairfax’s spokesperson; O’Keefe did not get information
from the Duke friends whom Fairfax’s spokesperson identified, including the CBS lawyer
on the list; CBS knew Duke University denied being aware before February 2019 of
Watson’s allegation of rape by a Duke athlete; and CBS knew that Watson (and Tyson)
wanted a public hearing instead of a law enforcement investigation. These allegations do
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not raise an inference that CBS “entertained serious doubts as to the truth” of Watson’s
accusation or deliberately attempted to avoid learning the truth. St. Amant, 390 U.S. at
731. Fairfax alleges that CBS reporting staff were “in regular touch” with his spokesperson
and “highly responsive to her outreach.” J.A. 106. He alleges that O’Keefe told the
spokesperson CBS had attempted to contact the individuals Fairfax identified and asked
Fairfax and his team to urge those individuals to speak with CBS reporters. The interview
demonstrates that King questioned Watson (and Tyson) about her version of events,
including questions probing her veracity and motivations. In the broadcasts, King
explicitly noted that both women called for a public hearing instead of an investigation and
that Duke denied knowing about Watson’s allegation regarding the Duke athlete when she
was a student, although she claimed to have reported it to a Duke official at the time. These
are not the actions of reporters avoiding the truth so as to present a story they believe to be
false.
Fairfax places great emphasis on the list of Duke friends his spokesperson supplied
CBS and the suggestion that King should ask Watson whether she saw “anyone else on
[her] way in or out” the evening of the alleged assault. According to Fairfax, the eyewitness
to his encounter with Watson was on the list provided to CBS, and the CBS attorney on the
list was aware of the eyewitness. If CBS had interviewed either person or had asked
Watson whether anyone else was present during the alleged assault, Fairfax claims CBS
would have discovered the truth. Critically, however, Fairfax did not disclose the existence
of the eyewitness until July, months after CBS broadcast Watson’s interview. Nor does he
allege that the journalists responsible for the CBS This Morning broadcast knew about the
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eyewitness from any other source. See New York Times, 376 U.S. at 287 (“[T]he state of
mind required for actual malice would have to be brought home to the persons in the Times’
organization having responsibility for the publication of the [allegedly defamatory]
advertisement.”). He therefore has not alleged that CBS had any reason, at the time of the
alleged defamatory statements, to believe that an eyewitness existed or to understand the
significance of asking whether Watson saw anyone else that evening. This is not a case
like Harte-Hanks, where journalists failed to make any effort to interview a known key
witness to the event that was the subject of the report. See 491 U.S. at 682, 692. To the
contrary, Fairfax has alleged that he revealed the existence of an eyewitness for the first
time after the CBS broadcast. We cannot infer any bad faith on the part of CBS for failing
to more vigorously pursue a third party for information when, at the time of the broadcast,
it had no reason to believe that third party witnessed the relevant event.
Nor does CBS’s alleged refusal to correct or retract its story after Fairfax’s
subsequent revelation push his actual malice claim over the line of plausibility. The actual
malice standard requires that “the defendant had a particular, subjective state of mind at
the time the statements were made.” Horne, 893 F.3d at 211; see New York Times, 376
U.S. at 286 (assessing malice “at the time of the publication”). CBS’s alleged post-
publication conduct here is not probative of its state of mind at the time of publication,
before it was aware of the alleged eyewitness.
Finally, Fairfax also alleges: CBS did not inform him about the interviews or request
his response to them; CBS had motive to show itself sympathetic to allegations of sexual
assault after CBS personalities had been accused of sexual misconduct; and CBS
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“resurrected” the stories two months after the allegations were first made. Even considered
together with the aforementioned allegations, these assertions fail to support Fairfax’s
claim of actual malice. As the broadcasts show, CBS received a formal statement from
Fairfax denying Tyson’s and Watsons’ accusations—King communicated Fairfax’s denial
and quoted from his statement at multiple points during the two broadcasts. CBS’s alleged
failure to more specifically inform Fairfax about the interviews accordingly does not
suggest CBS was attempting to avoid learning or communicating the truth. As for CBS’s
alleged motive to salvage its own reputation, a news organization’s “motive in publishing
a story . . . cannot provide a sufficient basis for finding actual malice.” Harte-Hanks, 491
U.S. at 665; see also Reuber, 925 F.2d at 716 (“[E]vidence of a defendant [publishing]
material to increase its profits does not suffice to prove actual malice.”). Even accepting
as true that CBS had a self-serving motive in pursuing the story—and accepting that motive
can be relevant to the actual malice inquiry, see Harte-Hanks, 491 U.S. at 668—that does
not support an inference that CBS seriously doubted the truth of the women’s accusations
against Fairfax. Nor does the fact that CBS broadcast the exclusive interviews two months
after the initial allegations at all suggest CBS acted with a “high degree of awareness of
[the accusations’] probable falsity.” Hatfill, 532 F.3d at 324 (quoting Reuber, 925 F.2d at
714); see also Garrison, 379 U.S. at 74.
At bottom, the factual allegations in Fairfax’s amended complaint fall considerably
short of plausibly alleging that CBS broadcast its April 1 and 2 CBS This Morning
programs despite entertaining “serious doubts as to the truth” of those broadcasts. St.
Amant, 390 U.S. at 731. Fairfax vigorously disputes the accusations made by Tyson and
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Watson, and we express no opinion on the truth or falsity of their claims. But even
accepting Fairfax’s version of events, he has alleged nothing to suggest that CBS reported
the women’s stories with knowledge or reckless disregard of their falsity. Fairfax must be
content with “[t]he first remedy of any victim of defamation”—efforts to contradict and
counteract the allegedly false accusations—and the “significantly greater access to the
channels of effective communication” afforded him as a public official. Gertz, 418 U.S. at
344.
Because Fairfax has not sufficiently alleged actual malice, he has failed to state a
claim for defamation and we need not consider the other elements of this cause of action,
including defamatory meaning. And as Fairfax acknowledges, our analysis of his failure
to sufficiently plead actual malice applies equally to his claim for intentional infliction of
emotional distress. See Russo v. White, 400 S.E. 2d 160, 162 (Va. 1991) (listing the
elements of a claim for intentional infliction of emotional distress in the absence of a
“tactile tort”); Hatfill, 532 F.3d at 325–326; cf. Harte-Hanks, 491 U.S. at 667; Hustler
Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988).
III.
We turn now to CBS’s cross-appeal of the district court’s denial of its request for
attorney’s fees. The district court held that CBS sufficiently established its entitlement to
statutory immunity under Virginia Code Ann. § 8.01-223.2, Virginia’s anti-SLAPP
(strategic lawsuit against public participation) statute. Generally speaking, anti-SLAPP
statutes aim to weed out and deter lawsuits brought for the improper purpose of harassing
individuals who are exercising their protected right to freedom of speech. See Henry v.
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Lake Charles Am. Press, LLC., 566 F.3d 164, 169 (5th Cir. 2009). Virginia’s statute
provides, among other things, that “[a]ny person who has a suit against him dismissed or
[a subpoena quashed] pursuant to the immunity provided by this section may be awarded
reasonable attorney fees and costs.” Va. Code Ann. § 8.01-223.2(B). The district court
reasoned that an award pursuant to this provision is permissive, not mandatory or
presumptive, and denied CBS’s fee request because Fairfax’s allegations were not
frivolous or made in bad faith. CBS appeals only the district court’s interpretation of the
statute, a legal question we review de novo. See Brown & Pipkins, LLC v. Serv. Emps.
Int’l Union, 846 F.3d 716, 729 (4th Cir. 2017).
The Supreme Court of Virginia has not interpreted Section 8.01-223.2(B), so we
must apply state law to predict how that court would rule. See Wells v. Liddy, 186 F.3d
505, 527–528 (4th Cir. 1999). When interpreting statutes, the Supreme Court of Virginia
has instructed that the intent of the legislature “must be gathered from the words used,
unless a literal construction would involve a manifest absurdity.” Chase v.
DaimlerChrysler Corp., 587 S.E.2d 521, 522 (Va. 2003) (internal quotation marks
omitted). Thus, “[w]hen the language in a statute is clear and unambiguous, [the court is]
bound by the plain meaning of that language.” Cummings v. Fulghum, 540 S.E.2d 494,
496 (Va. 2001).
Section 8.01-223.2(B) states that a prevailing defendant “may” be awarded
attorney’s fees, and the Supreme Court of Virginia has consistently treated the word “may”
as “prima facie permissive, importing discretion.” Harper v. Va. Dept. of Tax’n, 462
S.E.2d 892, 898 (Va. 1995) (internal quotation marks omitted); see also AME Fin. Corp.
16
v. Kiritsis, 707 S.E.2d 820, 824 (Va. 2011) (“[U]se of the word ‘may,’ as opposed to ‘shall’
. . . evidences . . . discretion to grant or refuse the defendant’s motion . . . .”); Spindel v.
Jamison, 103 S.E.2d 205, 208 (Va. 1958) (“The word ‘may’ should not be construed to
mean ‘must’ or ‘shall,’ unless the clear intention of the legislature demands it.”); cf.
Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 821 Fed. App. 234, 242 (4th Cir.
2020) (per curiam) (reasoning that “[t]he word ‘may’ [in Section 8.01-223.2(B)] means
just what it says: that a court has discretion to award (or not to award) attorney’s fees”
(internal quotation marks omitted)). By contrast, in other statutes the Virginia legislature
had made an attorney’s fee award mandatory through use of the word “shall.” See, e.g.,
Va. Code Ann. §§ 2.2-4030(A), 9.1-704(B). And, of course, the legislature used the word
“shall” in the immunity provision of Section 8.01-223.2(A), immediately preceding the
provision at issue here. All this convinces us, in accordance with the plain meaning of the
word “may,” that Section 8.01-223.2(B) is permissive, authorizing the court to award fees
in its discretion.
CBS contends that although Section 8.01-223.2(B) is not mandatory, we should
construe it to create a presumption in favor of awarding attorney’s fees to a prevailing
defendant. CBS summons nothing in Virginia law to support a presumption but instead
relies on judicial interpretation of D.C.’s anti-SLAPP law, which differs from Virginia’s
law in two important respects.
First, the attorney’s fees provision of D.C.’s anti-SLAPP law provides that a court
“may award” fees to a prevailing defendant but “may award” fees to a prevailing plaintiff
“only if the court finds that [the] motion [to dismiss or quash] is frivolous or is solely
17
intended to cause unnecessary delay.” D.C. Code § 16-5504. The D.C. Court of Appeals
relied on this contrast between prevailing defendants and plaintiffs in deciding that a
prevailing defendant is presumptively entitled to fees unless special circumstances render
a fee award unjust. Doe v. Burke, 133 A.3d 569, 573–575 (D.C. 2016). Virginia’s law
does not include any contrasting reference to fee awards authorized only upon a finding of
frivolousness or bad faith.
Second, the D.C. fee statute applies only to special motions to quash or dismiss at a
preliminary stage of the litigation. See D.C. Code §§ 16-5502, 16-5503. By contrast, the
Virginia fee statute authorizes an award whenever a suit is dismissed pursuant to anti-
SLAPP immunity, whether at the threshold, at summary judgment, or after a trial on the
merits. The appropriateness of a fee award may vary significantly across the timeline of a
lawsuit, and reading a presumption into the statute would restrict the court’s discretion to
distinguish between differing circumstances.
CBS’s comparison to Title VII similarly fails to support its cause. Although a
prevailing Title VII plaintiff is presumptively entitled to recover attorney’s fees, a
prevailing defendant may recover fees only if the plaintiff’s action “was frivolous,
unreasonable, or groundless.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). A defamation defendant
entitled to anti-SLAPP immunity under Virginia law is not in the same position as a
prevailing Title VII plaintiff.
Seeing no reason to embellish the plain language of Virginia’s statute, we conclude
that Section 8.01-223.2(B) permits, but does not require, a court to award attorney’s fees
18
to a prevailing defendant and does not create a presumption in favor of a fee award. We
therefore affirm the district court’s exercise of its discretion in denying CBS’s motion for
fees.
* * *
For the foregoing reasons, the judgment of the district court in these consolidated
appeals is
AFFIRMED.
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