Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, September 16, 2008

Fourth Circuit Rules Talk Show Host's Comments About Military Contractor Protected By First Amendment

The Fourth Circuit has ruled that a defendant talk show host did not act with actual malice in discussing actions of plaintiff military contractor since she relied on army reports in making her comments.

The actual malice “rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law rule compelling the critic of official conduct to guarantee the truth of all his factual assertions would deter protected speech.” ... CACI does not contest its status as a public figure. CACI became a public figure because the U.S. Army's military intelligence branch was woefully short of interrogators and engaged CACI to provide civilian interrogators at Abu Ghraib. CACI surely knew when it accepted the interrogation work that it was potentially exposing itself to the inhospitable climate of media criticism — criticism that could be emboldened by the actual malice standard....After the shocking pictures of the Abu Ghraib abuses were broadcast on 60 Minutes II in April 2004, and even more shocking revelations followed, CACI became a prime target of media criticism and comment. As the district court aptly noted, “[h]eads of states, public officials, media sources, academics, and individuals throughout the world took note of, and commented on, the events at the Abu Ghraib prison,” where CACI played a prominent role....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....In statement 1 Rhodes also referred to rape at Abu Ghraib, saying, “the people that are … raping,” that is, “the ones that are being paid to do this are not our troops but it's CACI and Titan.” The district court determined that Rhodes's sources provided sufficient support for this statement to preclude a finding that Rhodes spoke with reckless disregard for the truth. We agree.
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.
CACI contends that Rhodes accused it of fighting on the side of apartheid and Mobutu, the former dictator in Zaire. On two occasions, in denouncing the use of contractors in Iraq, Rhodes mentioned that some individuals now working for contractors in Iraq had fought on the side of the apartheid and Mobutu regimes. In statement 3 on August 15, 2005, while discussing the New York Times Magazine article on the use of military contractors in Iraq and earlier conflicts, Rhodes said:
No one dared talk about all these companies, Blackwater, and CACI, and Titan, and now this new one, Three Canopies, that really didn't even exist until this was started… . And these people … . They're not loyal to America. They're loyal to the corporation. And they have fought on the side of Apartheid … . These guys literally fought on the side of Mobutu who used to chop peop—, little children's hands off… . And these same guys, same people, that are making up these mercenary companies, same ones, are now over in Iraq doing whatever.
... In statement 12 on August 26, Rhodes repeated her point:
I'm for getting the mercenaries who are making $3,000 a week out of there, who are not loyal … to this country, don't care a thing about democracy, they care about the bottom-line of Triple Canopy or Blackwater or CACI or Titan or DynCorp, and they are some of the most notoriously evil people, and they are getting paid with our tax dollars. These are guys … they would find on the side of the government in South Africa that wanted to keep apartheid. They fought on the side of the government that was literally chopping off young boys’ hands because they didn't want to kill them. They wanted them to be handless as little reminders to everybody, that if you stood up to this government, that's what's going to happen to you, and they were like walking billboards for tyranny, for treachery, for murder!
The district court concluded that these statements were “immune from defamation liability” because the reasonable listener would understand that they were not stating actual facts about CACI itself.... We agree.
We turn finally to three related statements that are appropriately analyzed under both the actual malice standard and the standard protecting statements that cannot reasonably be interpreted as stating actual facts about an individual or entity. In these statements, all made on August 24, 2005, Rhodes discussed the murder of inmates at Abu Ghraib. In statement 5 she said: “So there are more photos of Abu Ghraib … . [T]here are Congress people who have seen them and they are disgusted by them. There are videos. And, yes, they clearly show … [the] murder of people who have been caught in these dragnets in Iraq.”... A few sentences later in statement 6, she continued: “And now we have this documentary, photographic, videographic evidence of some of the really sick, twisted stuff that … was done and carried out, not by generals and not by military people but were [sic] ordered by people who work for private contractors, mercenaries if you will.” ... In statement 8 Rhodes finished her point, saying:
Unless we actually apologize for these, unless we actually have a president of the United States who says—look what's been done here and I know who did it and this is who did it and it was CACI and it was Titan and it was Blackwater and it was Halliburton and it was Bechtel and it was Dyn-Corp. and it was this one and it was Triple [Canopy] —- whoever it was, and he actually says these people are going to be put on trial and they will be charged with murder. … Until and when and if that happens, the recruitment for Al Qaeda is going to surpass our recruitment capabilities here in the United States.
CACI contends that in these statements Rhodes states the “actual fact” that CACI committed murder at Abu Ghraib. The statements themselves refute this contention. To begin with, the statements urge the United States to apologize for “the really sick, twisted stuff” that occurred at Abu Ghraib and to identify any culprit among the private contractors that ordered soldiers to abuse detainees.... As the district court noted, the only time CACI was mentioned in the August 24 statement was when she called on the President to investigate and identify any responsible contractor — CACI, Titan, Blackwater, Halliburton, Bechtel, Triple Canopy, or “whoever it was” — and put the contractor on trial for murder. Rhodes simply provided an open-ended list of potential targets for investigation without assigning blame to any particular contractor. She reserved judgment and urged the President to bring “whoever it was” — the responsible party or parties — to justice. Rhodes, under any reasonable interpretation of these statements, was not saying that CACI committed murder at Abu Ghraib.
Even if we assumed that Rhodes in these statements was suggesting that CACI was responsible for murder at Abu Ghraib, the statements would be, as the district court concluded, protected by the actual malice standard. First, Rhodes's sources reported the murder or death in suspicious circumstances of Abu Ghraib detainees. A U.S. Senator, after reviewing unpublished photographs in the possession of the U.S. Department of Defense, said that the photographs contained scenes of murder at Abu Ghraib. The Taguba report found that photographs had been taken of dead Iraqi detainees at Abu Ghraib, and several photographs of at least one dead (and beaten) detainee were actually released. One detainee, recently transferred to military custody at Abu Ghraib, was discovered in a shower stall dead, handcuffed, and hooded with a sandbag. The Taguba report and Brigadier General Karpinski concluded that CACI employees, among others, were responsible for the range of atrocities at Abu Ghraib, and certain of Rhodes's sources indicated that murder was among the atrocities committed. Accordingly, Rhodes would not have been speaking with reckless disregard for the truth if she had suggested that CACI was responsible for murder. In other words, she would not have been speaking with a “high degree of awareness of [the] probable falsity” of her statement....
Accordingly, Rhodes's statements 5, 6, and 8 relating to murder at Abu Ghraib are protected by the First Amendment.
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 opinion here. The case is CACI Premier Technology v. Rhodes, 06-2140, decided August 5, 2008.

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