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Thursday, August 7, 2008

Fourth Circuit Upholds Dimissal of Contractor Defamation Suit Against Talk Show Host, Air America

The Fourth Circuit has upheld the dismissal of a defamation action brought by CACI, a government contractor, against Randi Rhodes, a (former) Air America talk show host and Air America, over statements that Ms. Rhodes made on her show, concerning alleged abuse committed by CACI employees against Abu Ghraib detainees. Here's part of what the Court said.

In a diversity action filed in U.S. district court in Virginia, CACI sued Rhodes and Air America for defamation under Virginia law. CACI alleges that Rhodes's statements on her show (reprinted above) accuse the company of, among other things, torture, rape, murder, and misrepresenting its authority (with its employees impersonating military personnel) at the Abu Ghraib prison. According to CACI, Rhodes made the statements with reckless disregard as to whether they were false.

Rhodes and Air America made a motion for summary judgment, which the district court granted for the following reasons. First, the court concluded that Rhodes's statements ... that CACI tortured detainees at Abu Ghraib "are not demonstrably false" (and hence not defamatory). ... In the alternative, the district court held that these statements were not made with actual malice. Second, the district court concluded that Rhodes's statements... that CACI employees misrepresented their authority at Abu Ghraib are not demonstrably false. Again, the court held in the alternative that these statements were not made with actual malice. Third, the district court concluded that Rhodes's statements ... that "likened [CACI and other] independent contractors operating in Iraq, generally, to those that operated in apartheid South Africa" were non-actionable hyperbole. ... Fourth, the district court concluded that Rhodes's statements ... "regarding CACI's role in the rape and murder of Iraqi detainees at Abu Ghraib," ...were hyperbole, failed to assert actual facts about CACI, or were not made with actual malice. CACI appeals the award of summary judgment to Rhodes and Air America, and our review is de novo, Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en banc).

...

CACI sued Rhodes and Air America for defamation under Virginia law. In Virginia a statement is defamatory per se if it, among other circumstances, (1) "impute[s] to a person the commission of some criminal offense involving moral turpitude;" (2) "impute[s] to a person unfitness  [*28] 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 or employment;" or (3) "prejudice[s a] person in his or her profession or trade."

...


The "application of the state law of defamation" is limited, of course, by the First Amendment to the Constitution of the United States.... This appeal turns on the application of two of these limitations: (1) the actual malice standard that attaches to media coverage of public officials or public figures and (2) the protection for statements that cannot reasonably be interpreted as stating actual facts about an individual. ... The standard ensures that defamation cases involving issues of public concern are considered "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government[,] public officials," and public figures.... Accordingly, a public official or public figure cannot "recover [] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."...As we have said, "[e]stablishing actual malice is no easy task, because the defamation plaintiff bears the burden of proof by clear and convincing evidence." ...In reviewing an order granting summary judgment, an appellate court must independently examine the record to determine whether the plaintiff has proffered sufficient evidence to prove actual malice by clear and convincing evidence....

The First Amendment also "provides protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual."...This safeguard includes protection for "rhetorical hyperbole, a vigorous epithet" and "loose, figurative, or hyperbolic language."

...

Several of Rhodes's statements that CACI claims are defamatory -- those about misrepresentation of authority, torture, and rape at Abu Ghraib -- will be analyzed under the New York Times actual malice standard.  [W]e begin with a comment about the importance of the actual malice standard to a wide-open and vigorous discussion of critical public issues. Rhodes joined in just such a discussion in this instance. The general topic was the initiation and conduct of the war in Iraq; it included the United States government's use of contractors, including CACI, to perform certain military functions in the war effort; it also included the shocking abuses at Abu Ghraib and CACI's role there. Rhodes's criticism of CACI's role and conduct was unbridled, caustic, and indignant.

...

The district court determined "that CACI is a public figure because of [its] prominent role in the circumstances surrounding the events that occurred at Abu Ghraib -- an issue of grave public concern." ... CACI does not contest its status as a public figure.

...

The district court concluded that the Fay/Jones and Taguba reports "gave Ms. Rhodes reasonable grounds to make claims that CACI employees either directed United States military personnel or acted in the capacity of United States personnel when directing military personnel." ... Therefore, the district court concluded that Rhodes's statements about CACI employees misrepresenting their authority and inappropriately assuming positions of authority were not made with actual malice. We conclude that the two military reports, together with other sources, support the district court's determination.

...

On August 10, 2005, while speaking on her show about the treatment of Iraqi detainees at Abu Ghraib, Rhodes said in statement 1: "[T]he people that are torturing . . . are not our troops but it's CACI and Titan." ... The district court, in considering this statement, held that there was sufficient information in Rhodes's sources to prevent CACI from establishing that she spoke with actual malice. According to the court, CACI could not establish that Rhodes "recklessly disregarded the truth when alleging that CACI employees had tortured Iraqi detainees." ... We agree.

...

We are quite mindful that the accusation that a government contractor,  or indeed any public figure, bears responsibility for child rape is a grave one. The First Amendment, however, bars liability for such a defamatory accusation absent clear and convincing proof that the speaker made the accusation "with reckless disregard of whether it was false or not." ...The Supreme Court has made "clear that reckless conduct is not measured by whether a reasonably prudent [person] would have published [or spoken], or would have investigated before publishing [or speaking]."... Instead, there must be sufficient evidence to permit the conclusion that the defamatory statement was "made with [a] high degree of awareness of [its] probable falsity." ... Again, Rhodes relied on several sources for the child rape allegation. Of course, "simple reliance upon someone else's statement does not absolve an author or publisher of liability. Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." ... Rhodes relied on the Hersh speech, the Fay/Jones report, and the Guardian article for her statement that the rape of children (or juveniles) occurred at Abu Ghraib. She relied on the Taguba report and Brigadier General Karpinski's interview for the point that CACI bore general responsibility for the horrific abuses at Abu Ghraib, abuses that would include the rape of children. There is no evidence to suggest that these sources provided unreliable information or that Rhodes had "obvious reasons" to doubt what they said. ... Accordingly, we conclude that a reasonable jury could not find that Rhodes spoke with reckless disregard for the truth when she accused CACI of responsibility for the rape of children.

...

Several of Rhodes's statements that CACI challenges as defamatory are not actionable because they do not assert actual facts about CACI. As we noted above, the First Amendment protects statements "that cannot reasonably [be] interpreted as stating actual facts about an individual" or entity.... This category of protection allows for rhetorical hyperbole and other types of imaginative or exaggerated expression....

...

We have made a thorough and independent examination of the whole record, and we are satisfied that each of Rhodes's statements that CACI challenges as defamatory is protected by the First Amendment: either it was not made with reckless disregard for the truth or it did not state actual facts about CACI (it was rhetorical hyperbole, for example). This case reminds us that "[i]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public [issues], and this opportunity is to be afforded for vigorous advocacy" that may be caustic and even exaggerated.... This essential privilege minimizes the danger of self-censorship on the part of those who would criticize, thus allowing robust debate about the actions of public officials and public figures (including military contractors such as CACI) who are conducting the country's business.

Read the entire ruling here. The case is CACI Premier Technology v. Rhodes, 2008 U.S. App. LEXIS 16576.

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