PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CACI PREMIER TECHNOLOGY,
INCORPORATED; CACI INTERNATIONAL,
INCORPORATED,
Plaintiffs-Appellants,
v.
RANDI RHODES; PIQUANT, LLC, d/b/a
Air America Radio,
Defendants-Appellees.
ALM MEDIA, INCORPORATED; THE
ASSOCIATED PRESS; COX
COMMUNICATIONS, INCORPORATED;
DOW JONES AND COMPANY,
INCORPORATED; GANNETT, No. 06-2140
INCORPORATED; THE HEARST
CORPORATION; LANDMARK
COMMUNICATIONS, INCORPORATED;
MAGAZINE PUBLISHERS OF AMERICA;
NBC UNIVERSAL, INCORPORATED; THE
NEW YORK TIMES COMPANY; THE
NEWSPAPER ASSOCIATION OF AMERICA;
NEWSWEEK, INCORPORATED; THE
RADIO-TELEVISION NEWS DIRECTORS
ASSOCIATION; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE
PRESS; TIME, INCORPORATED; THE
WASHINGTON POST,
Amici Supporting Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:05-cv-01111-GBL)
2 CACI PREMIER TECHNOLOGY v. RHODES
Argued: January 31, 2008
Decided: August 5, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Gregory joined. Judge Duncan wrote a separate opinion
concurring in the judgment.
COUNSEL
ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHNSON,
L.L.P., Washington, D.C., for Appellants. Laura Rose Handman,
DAVIS, WRIGHT & TREMAINE, L.L.P., Washington, D.C., for
Appellees. ON BRIEF: John F. O’Connor, Frank H. Griffin, IV,
STEPTOE & JOHNSON, L.L.P., Washington, D.C., for Appellants.
David M. Shapiro, DAVIS, WRIGHT & TREMAINE, L.L.P., Wash-
ington, D.C., for Appellees. Jack M. Weiss, Joshua Wilkenfeld, Laura
M. Leitner, GIBSON, DUNN & CRUTCHER, L.L.P., New York,
New York; Theodore B. Olson, Theodore J. Boutrous, Jr., GIBSON,
DUNN & CRUTCHER, L.L.P., Washington, D.C., for Amici Sup-
porting Appellees.
OPINION
MICHAEL, Circuit Judge:
This defamation case centers on the notorious U.S.-run Abu Ghraib
prison in Iraq. Abu Ghraib prison is the place where Iraqi detainees
were subjected to horrific abuse. It is also the place where plaintiffs,
CACI Premier Technology, Inc. and CACI International Inc.
(together, CACI), interrogated Iraqi detainees for the U.S. military.
Defendant Randi Rhodes, a talk-radio host, blamed CACI in part for
the Abu Ghraib abuses on her show, which was broadcast by defen-
CACI PREMIER TECHNOLOGY v. RHODES 3
dant Piquant, LLC, d/b/a Air America Radio (Air America). In her
scalding accusations against CACI — a military contractor with pub-
lic figure status — Rhodes relied on a number of reputable sources,
including two U.S. Army reports and the statements of an army briga-
dier general who was once the head of U.S. detention facilities in
Iraq. Rhodes and Air America moved for summary judgment after
CACI sued them for defamation. The district court granted the
motion, concluding that Rhodes’s statements were protected by the
First Amendment, either because they were not made with actual mal-
ice or because they did not state actual facts about CACI. We affirm.
I.
A.
CACI is a U.S. government contractor that provides intelligence
services to the military. CACI’s principal place of business is in Vir-
ginia. In the post-invasion phase of the war in Iraq, CACI (beginning
in September 2003) provided civilian interrogators for the U.S.
Army’s military intelligence brigade assigned to the Abu Ghraib
prison, near Baghdad.
Air America is a liberal talk radio network. Air America’s broad-
casts reach the Commonwealth of Virginia through satellite radio and
at least one commercial station. Rhodes began hosting The Randi
Rhodes Show on Air America in March 2004. Her show aired for four
hours daily during the week. Rhodes, a former member of the U.S.
Air Force, views the war in Iraq as a "disastrous mistake." J.A. 126.
She laced her show with fierce and colorful criticism of the President,
the civilian leadership at the Pentagon, and military contractors for
their role in the "initiation and continuation of the war." Id. Rhodes
accepts New York Magazine’s characterization of her style as "shrill,
screeching," and "hectoring, cocksure." Id. She also admits to making
frequent use of hyperbole, a common tool of the talk radio host, in
criticizing "everything having to do with the war in Iraq." J.A. 127.
During the Saddam Hussein regime the Abu Ghraib prison "was
one of the world’s most notorious prisons, with torture, weekly execu-
tions, and vile living conditions." J.A. 318. Just before the 2002 inva-
sion, the regime, aiming to create havoc for coalition forces, released
4 CACI PREMIER TECHNOLOGY v. RHODES
the detainees held at Abu Ghraib prison and other facilities. After the
invasion the then-empty Abu Ghraib was taken over by the U.S. mili-
tary for use as a detention facility for three detainee (or prisoner) cate-
gories: (1) common criminals, (2) security detainees accused or
suspected of committing offenses against the Coalition Provisional
Authority, and (3) "high value" detainees who might possess useful
intelligence (insurgency leaders, for example). J.A. 318. The detain-
ees at Abu Ghraib included women and juveniles. A U.S. Army mili-
tary police brigade and a military intelligence brigade were assigned
to the prison. The intelligence operation at the prison suffered from
a severe shortage of military personnel, prompting the U.S. govern-
ment to contract with CACI to provide civilian interrogators and with
Titan Corporation (Titan) to provide civilian interpreters.
Abu Ghraib prison returned to public awareness with searing inten-
sity in late April 2004 when CBS on 60 Minutes II broadcast an
extended report, with sickening photographic evidence, about U.S.
soldiers abusing and humiliating Iraqi detainees at Abu Ghraib. The
broadcast showed photographs of naked detainees stacked in a pyra-
mid; a photograph of two naked and hooded detainees, positioned as
though one was performing oral sex on the other; and a photograph
of a naked male detainee with a female U.S. soldier pointing to his
genitalia and giving a thumbs-up sign. Another photograph showed a
hooded detainee standing on a narrow box with electrical wires
attached to his hands. A final photograph showed a dead detainee who
had been badly beaten. U.S. soldiers were in several of the photo-
graphs, laughing, posing, or gesturing. The abuses stunned the U.S.
military, public officials in general, and the public at large.
Civilian interrogators and interpreters, operating under military
contracts, were also responsible for detainee abuse at Abu Ghraib,
according to media reports that were essentially contemporaneous
with the 60 Minutes II broadcast. Rhodes closely followed "the Abu
Ghraib story [after] the shocking pictures were first broadcast on 60
Minutes [II] in April 2004." J.A. 130. By the time Rhodes made the
statements on her show in August 2005 that CACI challenges as
defamatory, Rhodes had read a number of published reports that
CACI interrogators at Abu Ghraib had abused detainees and directed
or encouraged the abuse of detainees. These sources included two
official military reports, a published interview of the brigadier general
CACI PREMIER TECHNOLOGY v. RHODES 5
formerly in charge of U.S. prisons in Iraq (including Abu Ghraib),
news articles, and a journalist’s speech. In addition to dealing with
CACI’s role at the Abu Ghraib prison, some of these sources also dis-
cussed the Pentagon’s extensive use of military contractors in Iraq, a
regular topic on Rhodes’s show. We highlight some of the relevant
information revealed in Rhodes’s sources that are included in the
record.
Concerns about abuse to detainees at the Abu Ghraib prison
prompted Major General Antonio M. Taguba’s investigation and
report (Taguba report) on the 800th Military Police Brigade assigned
to the prison. The Taguba report, made public in May 2004, found
that both military and civilian contractor (CACI and Titan) personnel
were responsible for "numerous incidents of sadistic, blatant, and
wanton criminal abuses . . . inflicted on" Abu Ghraib detainees. J.A.
495. Words like "horrific" and "extremely disturbing" were also used
to describe the abuses. J.A. 520, 494. Major General Taguba’s inves-
tigation led him to suspect that an army colonel and lieutenant colonel
and two civilians, Steven Stephanowicz (a CACI employee) and John
Israel (a Titan employee), "were either directly or indirectly responsi-
ble for the abuses at Abu Ghraib." J.A. 519.
Major General Taguba documented the following acts of abuse,
among others: punching, slapping, and kicking detainees; using
unmuzzled military dogs to frighten, and in one case to bite, detain-
ees; breaking chemical lights and pouring the phosphoric liquid on the
detainees; positioning a naked detainee on a box with a sandbag on
his head and attaching wires to his fingers, toes, and penis to simulate
electrical torture; sodomizing a detainee with a chemical light and
perhaps a broomstick; having sex with a female detainee and threaten-
ing male detainees with rape; stacking naked male detainees, hand-
cuffed and shackled, in piles so that each one’s penis touched the
buttocks of another; videotaping and photographing naked male and
female detainees; forcibly arranging detainees in sexually explicit
positions for photographing; forcing groups of male detainees to mas-
turbate while being photographed and videotaped; and taking photo-
graphs of dead Iraqi detainees.
Major General Taguba concluded that Stephanowicz of CACI
shared responsibility for the abuse because he "[a]llowed and/or
6 CACI PREMIER TECHNOLOGY v. RHODES
instructed MPs [military police] . . . to facilitate interrogations by ‘set-
ting conditions’ which were neither authorized [nor] in accordance
with applicable regulations/policy." J.A. 519. "Setting conditions"
was a euphemism for using abuse to break the will of a detainee being
interrogated. Major General Taguba found specifically that Stepha-
nowicz "clearly knew his instructions [to MPs to ‘set conditions’]
equated to physical abuse." J.A. 519.
As information about the Taguba report began to emerge, the
Guardian, a British newspaper, reported on April 30, 2004, that some
of the soldiers accused of abuse at Abu Ghraib "claimed to be acting
in part under the instruction of mercenary interrogators [CACI
employees] hired by the Pentagon." J.A. 339. In a May 10, 2004, arti-
cle in the New Yorker, "Torture at Abu Ghraib," investigative journal-
ist Seymour Hersh wrote that the Taguba report described an Abu
Ghraib where "much of the day-to-day management of the prisoners
was abdicated [by military police] to Army military-intelligence units
and civilian contract employees," who relied on intimidation and tor-
ture to gather intelligence. J.A. 323. Two months later, on July 8,
2004, Hersh spoke at an American Civil Liberties Union conference.
There, Hersh said that acts that were even more atrocious — and yet
to be disclosed by the government — were committed at Abu Ghraib:
Some of the worst things that happened . . . you don’t know
about. . . . [W]omen [prisoners at Abu Ghraib] were passing
messages out [to their families] saying please come and kill
me because of what’s happened. And basically what hap-
pened is that those women who were arrested with young
boys, children, in cases that have been [video] recorded, the
boys were sodomized, with the cameras rolling, and the
worst above all of them is the soundtrack of the boys shriek-
ing.
J.A. 331 (fourth alteration in original).
In August 2004 a second U.S. Army report provided further details
of the abuses at Abu Ghraib. This report (the Fay/Jones report), issued
by Major General George R. Fay and Lieutenant General Anthony R.
Jones, focused on the military intelligence brigade assigned to the
prison. The Fay/Jones report confirmed CACI employee involvement
CACI PREMIER TECHNOLOGY v. RHODES 7
in detainee abuse. To begin with, the Fay/Jones report revealed that
several soldiers at Abu Ghraib said that they were supervised by
CACI employees. Another soldier "indicated that CACI employees
were in positions of authority, and appeared to be supervising govern-
ment personnel." J.A. 609. The statements were confirmed by a
prison organizational chart that showed a CACI employee as head of
the DAB (Detainee Assessment Branch), with soldiers as his subordi-
nates. Moreover, as the earlier Taguba report indicated, the fact that
CACI and Titan employees wore desert camouflage uniforms caused
confusion in the chain of command.
The Fay/Jones report expanded on the Taguba report in describing
"shameful events" of abuse to detainees at Abu Ghraib "that violated
U.S. criminal law" or "that w[ere] inhumane or coercive without law-
ful justification." J.A. 545, 528. According to the report, the abuse,
"ranging from inhumane to sadistic," was inflicted "by a small group
of morally corrupt soldiers and civilians," with CACI and Titan
employees making up the latter category. J.A. 527. CACI or Titan
employees were responsible in over one-third of the incidents.
The Fay/Jones report detailed forty-four incidents of abuse inflicted
by both military and civilian contractor (CACI and Titan) personnel.
CACI employees bore responsibility in fully one-fifth, or nine, of
these incidents, including the following. One, a CACI interrogator,
during the questioning of a detainee (an Iraqi policeman) threatened
to, and did, call upon an MP to "soften up" the subject. Once enlisted,
the MP covered the subject’s nose and prevented him from breathing
for a short time. At another point, the MP used a collapsible nightstick
to push or twist the subject’s arm, causing pain. Two, a CACI interro-
gator "grab[bed] a [handcuffed] detainee" from the back of a high
vehicle, dropped him on the ground, and dragged him to an interroga-
tion booth. J.A. 637. Each time the detainee "tried to get up," the
CACI employee "would yank [him] very hard and make him fall
again." J.A. 689. Three, a photograph shows a CACI employee and
a Titan linguist interrogating a detainee who is being forced to squat
on a chair, an unauthorized (and unsafe) stress position. Four, at least
one CACI employee used unmuzzled dogs to facilitate detainee inter-
rogation. In one instance, "[i]t appeared [that a CACI employee] was
encouraging and even directing the MP abuse with dogs; likely a
‘softening up’ technique for future interrogations." J.A. 645. Five, a
8 CACI PREMIER TECHNOLOGY v. RHODES
CACI interrogator bragged about shaving the hair and beard of a
detainee and forcing him to wear red women’s underwear.
The Fay/Jones report detailed the account of an allegation that a
contract interpreter raped a young (minor) male detainee while a
female soldier took pictures. The alleged rapist, who was wearing
military clothing, partially matched the description of a Titan inter-
preter. These allegations prompted the Army’s Criminal Investigation
Command to open an investigation.
The Fay/Jones report pointed out that the International Committee
of the Red Cross, which visited Abu Ghraib, found that many detain-
ees "suspected [of] security offenses or deemed to have intelligence
value" were "subjected to . . . both physical and psychological coer-
cion (which in some cases was tantamount to torture) in order to force
cooperation with their interrogators." J.A. 622 (internal quotation
marks omitted). One detainee death is discussed in the Fay/Jones
report. The detainee, who was initially under CIA control and
believed to be an insurgent, had been struck in the head with a rifle
butt while resisting arrest. The detainee was brought to Abu Ghraib
and shortly thereafter was found in a shower stall, handcuffed and
dead, with a sandbag covering his head.
Finally, the Fay/Jones report concluded that many of the Abu
Ghraib abuses cited could be criminal, and it recommended that its
findings with respect to three CACI employees and two Titan
employees "be forwarded to the Army General Counsel for determi-
nation of whether [the employees] should be referred to the Depart-
ment of Justice for prosecution." J.A. 689-92. In commenting on the
potential referral for prosecution, the Washington Post, in an August
26, 2004, article, commented that the Fay/Jones report "provided the
clearest view yet of the role contractors [CACI and Titan] played in
the prison abuses" at Abu Ghraib. J.A. 313.
In late July 2005 Editor & Publisher reported that U.S. Secretary
of Defense Donald Rumsfeld had allowed certain members of Con-
gress to view 87 photographs and four videos from Abu Ghraib that
the Pentagon had "blocked from release" to the public. J.A. 334. Sec-
retary Rumsfeld described the photographs and videos as "show[ing]
acts [against detainees] ‘that can only be described as blatantly sadis-
CACI PREMIER TECHNOLOGY v. RHODES 9
tic, cruel and inhumane,’" and U.S. Senator Lindsey Graham (R-SC)
indicated that "they contained scenes of ‘rape and murder.’" Id.
On August 24, 2005, TruthOut.org published an interview with
Brigadier General Janis Karpinski, who was (at the relevant time) in
charge of U.S. detention facilities in Iraq. In the interview Karpinski
charged that "the Military Intelligence people" used "torture practices
[at Abu Ghraib that] were developed and implemented down in Guan-
tanamo Bay." J.A. 290. Karpinski had "no doubt in [her] mind" that
"the civilian contractors — Titan, CACI" — "ordered these things
[the abuses] to be done." J.A. 298. The civilian contractors simply
"ha[d] a playground" at Abu Ghraib, and they "g[o]t out of control,"
according to Karpinski. Id.
The Pentagon’s widespread use of military contractors in Iraq
attracted scholarly and media attention prior to and while Rhodes was
airing her shows that are the subject of this case. Rhodes read articles
on this topic as well, including the following two. In a 2004 law
review article, Peter Warren Singer, a National Security Fellow at the
Brookings Institution, wrote about military contractors who "sell
everything from small teams of commandos to massive military sup-
ply operations." J.A. 257. Singer surveyed current national and inter-
national laws and concluded that privatized military services are not
effectively regulated. Singer found that
[s]ome [privatized military] firms have committed severe
abuses in the course of their operations and have been
employed by dictatorships, rebel armies, terrorist groups,
and drug cartels. . . . Given the ultimate importance of the
field in which they operate and the potential for serious
abuses, a particularly worrying aspect is that the industry’s
position in the legal sphere remains ambiguous. . . . The
result is that [privatized military firms] comprise one
remaining industry whose behavior is dictated not by the
rule of law, but by simple economics.
J.A. 259-60. In mid-August 2005 the New York Times Magazine pub-
lished a lengthy article about the large-scale use of military (or secur-
ity) contractors in Iraq. The article discussed the history of mercenary
forces, including their involvement on the side of pro-apartheid forces
10 CACI PREMIER TECHNOLOGY v. RHODES
in South Africa. Some contractors, the article reported, "draw [per-
sonnel] from South African veterans of the wars to save apartheid,"
and one contractor once considered providing "help to Mobutu Sese
Seko, the tyrannical dictator of Zaire." J.A. 353, 355.
Armed with the foregoing information and additional accounts
from the media, Rhodes, in the period August 10, 2005, through
August 26, 2005, devoted parts of her show to the abuses at Abu
Ghraib, the issue of military contractor responsibility for those
abuses, and the issue of the Pentagon’s use of military contractors.
CACI’s defamation action is based on the following statements that
Rhodes made on her show.1
Statement 1, August 10, 2005 (torture and rape at Abu Ghraib):
[T]here are rape rooms and we are doing that and it is gro-
tesque and there was no reason to go and the people that are
torturing and raping are using our soldiers to film it and that
the ones that are being paid to do this are not our troops but
it’s CACI and Titan and the people who relieved General
Karpinski of her command in Iraq in Abu Ghraib and the
other prison she was in charge of were CACI and Titan.
They were independent contractors. . . . And the same inde-
pendent contractors are doing the same grotesque things to
little boys and girls now that we said Saddam was — you
know. . . .
J.A. 176-77.
Statement 2, August 11, 2005 (torture and rape of children and mis-
representation of authority):
How about the defense contractors or the oil conglomerates
or CACI or Titan International? What’s their relationship
with the President and why are they allowed to torture and
1
We use the district court’s statement numbering and add our paren-
thetical description of each statement. The statements are taken from the
joint appendix, and any stylistic errors or inconsistencies have not been
corrected.
CACI PREMIER TECHNOLOGY v. RHODES 11
rape little children using low-level clerks, who then go to
jail for 10 or 15 years? And how come you don’t have a
responsibility to report on those trials of those low-level
specialists who went to jail for 10 or 15 years, who testified
that they believed they were working for their government,
and really they were working for CACI and Titan, as tools.
J.A. 181-82.
Statement 3, August 15, 2005 (mercenaries fought on side of apart-
heid and oppressive African regimes):
[Y]ou’ve got to read this New York Times Magazine article
[about privatized military companies] . . . . [I]t was the
cover story, it was the most intensely eye-opening thing I
have ever read. No one dared talk about the mercenaries. 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 then
they got this idea, hey let’s get a Department of Defense
contract and we’ll send killers over there. That’s exactly
what they did. And these people — there’s no command and
control. They don’t report to anybody. They’re not loyal to
you, they’re not loyal to me. They’re not loyal to America.
They’re loyal to the corporation. And they have fought on
the side of Apartheid, just like Cheney used to vote against
abolishing Apartheid. He loves these guys. These guys
literally fought on the side of Mobutu who used to chop
peop—, little children’s hands off. Why did he do that? Well
the purpose of chopping little children’s hands off was so
that they would grow up as walking billboards for his — as
a testament to Mobutu’s power. . . . To anybody that might
even have a thought about deposing the brutal dictator. And
these same guys, same people, that are making up these
mercenary companies, same ones, are now over in Iraq
doing whatever. And we have no way, there’s no law,
there’s no criminal law that applies to them in Iraq. There’s
no civil law that applies to them in Iraq.
J.A. 193-94.
12 CACI PREMIER TECHNOLOGY v. RHODES
Statement 4, August 22, 2005 (unregulated contractors and contrac-
tor employees):
But what’s sickening is if you’re a mercenary, if you go to
work for Triple Canopy or you go to work for Blackwater,
first of all, there’s no laws. You’ll never, ever, ever be
court-martialed. You can do any damn thing you want to,
including torture people. . . . Our soldiers will pay the price,
but if you work for a contractor and you’re a mercenary, a
hired killer, it doesn’t matter. You can switch sides. You can
do whatever you want. . . . So for those people that just want
to kill for the sake of killing . . . call Triple Canopy or call
Blackwater or call CACI and Titan, especially if you want
to torture people, and never have to come under the long
arm of the law. I mean, that’s how you get away with mur-
der. . . . [Y]ou’ve got these fricken mercenaries out there
just going crazy. And there’s like 30,000 of them. And
there’s about 80,000 of them, but 30- to 40,000 of them are
armed to the teeth and will kill you.
J.A. 202-03.
Statements 5 to 8 are part of the same discussion on August 24,
2005, but we present them separately, as did the district court.
Statement 5, August 24, 2005 (rape and murder at Abu Ghraib):
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 rape
and murder and, yes, they show they show the rapes of chil-
dren and, yes, they show the murder of people who have
been caught in these dragnets in Iraq. And nobody knows
what they’ve done. And a year later some of them who sur-
vive it get released, but if you are in when we decide to mur-
der and rape, then that’s your lot in life, according to what
some of these people have said. So here are some of the
most disgusting images . . . .
J.A. 207.
CACI PREMIER TECHNOLOGY v. RHODES 13
Statement 6, August 24, 2005 (contractors misrepresenting author-
ity):
And now we have this documentary, photographic, video-
graphic evidence of some of the really sick, twisted stuff
that was ordered by our president and his civilian cabinet
that was done and carried out, not by generals and not by
military people but were ordered by people who work for
private contractors, mercenaries if you will. Who then were
able to access our kids [soldiers] and tell our kids—we’re
from special forces, or—we’re from the CIA, but you don’t
need to know who we are but we know who you are and
you’re going to do this because this is what we want you to
do.
J.A. 208.
Statement 7, August 24, 2005 (contractors misrepresenting author-
ity):
And of course it wasn’t the military that was taking control
of these kids [soldiers]. Janis Karpinski gave an interview,
I’ll post the interview. It’s the most amazing thing how she
was shunted aside, told not to go in there anymore, they had
control of the prisons and it was obviously the contractors
who then misrepresented to our kids who they were and
what they were ordered to do.
J.A. 208-09.
Statement 8, August 24, 2005 (call for official assignment of
responsibility for Abu Ghraib abuses):
Unless we actually apologize for these [acts], 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 DynCorp. and it was this one and it was Triple —-
14 CACI PREMIER TECHNOLOGY v. RHODES
whoever it was, and he actually says these people are going
to be put on trial and they will be charged with murder, and
they will be charged with rape, and they will be charged
with molesting children. And they will be charged with
crimes against humanity. Until and when and if that hap-
pens, the recruitment for Al Qaeda is going to surpass our
recruitment capabilities here in the United States.
J.A. 209.
Statements 9 to 11 were part of the same discussion on August 25,
2005.
Statement 9, August 25, 2005 (contractors misrepresenting author-
ity):
I was looking at an interview that Janis Karpinski did with
a woman named Marjorie Cohn. It’s posted on my website,
the RandiRhodesShow.com, and it’s right next to the pic-
tures of Abu Ghraib Prison and it — that is the choice we
made by the way, Abu Ghraib. We chose that, and how did
we choose it? The President let those contractors go in there,
and he let those contractors lie to our kids, and those kids
believed that those contractors were military intelligence
units, that they were CIA. But they weren’t. They weren’t.
They were employees of CACI and Titan.
J.A. 214.
Statement 10, August 25, 2005 (unregulated contractors misrepre-
senting authority):
[A]ll [Karpinski] kept hearing from the people in Iraq is this
deteriorated into contractor heaven. Mercenaries all over the
country, killing people. She said they had no previous train-
ing. The ones from CACI and Titan that were sent to the
prison, to Abu Ghraib, she said. They were supposed to be
interrogators [sic] but that CACI and Titan had offered them
a chance to upgrade their employment to interrogators, and
CACI PREMIER TECHNOLOGY v. RHODES 15
she said it was a deadly mix because they had no training
in being interrogators. They were translators. But CACI and
Titan was going to pay them more if they would interrogate
the prisoners. So they kicked her out of the compound at
night, told her she couldn’t travel at night to the cell blocks,
couldn’t come to Abu Ghraib at night, and at night, the little
mice would play, and they would play rape the boys, and
rape the girls, and pile them high, and they’d use the low-
level military people, and they wore military uniforms, too,
these contractors. They literally impersonated officers. And
no one knows what to do about it because there’s no freak-
ing law for them. . . . [W]hat you saw were contractors get-
ting their hands dirty. Contractors getting their hands
bloodied. Contractors were the ones that were actually doing
the bad stuff, but what you did have in Iraq was an Execu-
tive Order 13303, that said there was no law in Iraq. So the
only law that anybody that wants to prosecute CACI and
Titan, the only law — and believe me, people do — and the
only law that they can find to prosecute CACI and Titan is
this obscure Department of Defense law . . . . And they
don’t know what the definition of torture is because of
Alberto Gonzales, and so they don’t know what to charge
them with.
J.A. 217-18.
Statement 11, August 25, 2005 (rape of children and contractor
inexperience):
They [the Iraqi people] say that the raping of their children
and the raping of their children in front of them is no differ-
ent than Saddam. . . . [T]hese contractors were supposed to
help and be translators, and they became the interrogators
and they had no experience doing it, and it became this free-
for-all . . . .
J.A. 219.
Statement 12, August 26, 2005 (contractor employees fought on
side of apartheid):
16 CACI PREMIER TECHNOLOGY v. RHODES
I’m for getting the mercenaries . . . who are not loyal to your
[a caller’s] son, 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
. . . that were for — they would find on the side of the gov-
ernment in South Africa that wanted to keep apartheid. They
fought on the side of the government that was literally chop-
ping 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!
J.A. 235-36.
Statement 13, August 26, 2005 (characterizing contractors as hired
killers in a discussion with a caller named David):
David: I really am annoyed that this thing that’s being
passed on, the cost, for Iraq I’m still going to have to pay
for once I’m older.
Rhodes: Not only are you going to have to pay for the
actual bombs and the war and the mercenaries and their bil-
lions of dollars that they got. You know you’ve got guys
over there making, what, three thousand dollars a week,
three hundred dollars a day.
David: Yeah the contractors.
Rhodes: Yeah, don’t call them contractors, call them what
they are, they’re hired killers, they’re mercenaries.
David: Hired killers, yeah.
Rhodes: Yeah, they’re hired killers.
David: Hired killers from Halliburton.
CACI PREMIER TECHNOLOGY v. RHODES 17
Rhodes: They’re from everywhere, they’re from DynCorp
and CACI and Titan in the prisons, and then you’ve got Tri-
ple Canopy and Blackwater.
J.A. 225-26.
B.
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 mili-
tary 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 (statements 1, 2, and 4) that
CACI tortured detainees at Abu Ghraib "are not demonstrably false"
(and hence not defamatory). J.A. 1093. 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 (state-
ments 2, 6, 7, 9, and 10) 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
(statements 3 and 12) that "likened [CACI and other] independent
contractors operating in Iraq, generally, to those that operated in
apartheid South Africa" were non-actionable hyperbole. J.A. 1104.
Fourth, the district court concluded that Rhodes’s statements (state-
ments 1, 2, 5, 8, 10, 11, and 13) "regarding CACI’s role in the rape
and murder of Iraqi detainees at Abu Ghraib," J.A. 1117, were hyper-
bole, 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).
18 CACI PREMIER TECHNOLOGY v. RHODES
II.
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 per-
son 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 or employment;" or (3) "prejudice[s a] person in his or her pro-
fession or trade." Carwile v. Richmond Newspapers, Inc., 82 S.E.2d
588, 591 (1954). A defamatory charge may be made expressly or "by
inference, implication or insinuation." Id. at 592.
The "application of the state law of defamation" is limited, of
course, by the First Amendment to the Constitution of the United
States. Milkovich v. Lorain Journal Co., 497 U.S. 1, 14 (1990). This
appeal turns on the application of two of these limitations: (1) the
actual malice standard that attaches to media coverage of public offi-
cials or public figures and (2) the protection for statements that cannot
reasonably be interpreted as stating actual facts about an individual.
The actual malice standard, announced in New York Times Co. v. Sul-
livan, 376 U.S. 254 (1964), is rooted in the First Amendment’s "vital
guarantee of free and uninhibited discussion of public issues."
Milkovich, 497 U.S. at 22. The standard ensures that defamation cases
involving issues of public concern are considered "against the back-
ground 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. New York Times, 376 U.S. at 270; see Gertz v. Robert
Welch, Inc., 418 U.S. 323, 335-37 & n.7 (1974); Curtis Pub. Co. v.
Butts, 388 U.S. 130 (1967). 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." New York
Times, 376 U.S. at 279-80. As we have said, "[e]stablishing actual
malice is no easy task, because the defamation plaintiff bears the bur-
den of proof by clear and convincing evidence." Carr v. Forbes, Inc.,
259 F.3d 273, 282 (4th Cir. 2001). In reviewing an order granting
CACI PREMIER TECHNOLOGY v. RHODES 19
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. Id.;
see also Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657,
685 (1989) ("The question whether the evidence in the record in a
defamation case is sufficient to support a finding of actual malice is
a question of law.").
The First Amendment also "provides protection for statements that
cannot ‘reasonably [be] interpreted as stating actual facts’ about an
individual." Milkovich, 497 U.S. at 20 (alteration in original) (quoting
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)). This safe-
guard includes protection for "rhetorical hyperbole, a vigorous epi-
thet" and "loose, figurative, or hyperbolic language." Milkovich, 497
U.S. at 17, 21 (citation and internal quotation marks omitted). The
safeguard is necessary to "provide[ ] assurance that public debate will
not suffer for lack of ‘imaginative expression’ . . . which has tradi-
tionally added much to the discourse of our Nation." Id. at 20.
Whether a statement can reasonably be interpreted as stating facts
about an individual — whether it is rhetorical hyperbole, for example
— is a question of law. See Hatfill v. New York Times Co., 416 F.3d
320, 330 (4th Cir. 2005) ("The question whether a statement is capa-
ble of having a defamatory meaning is a question of law to be decided
by the court.").
III.
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.2 We begin with a comment about the importance of the
actual malice standard to a wide-open and vigorous discussion of crit-
2
We will assume for the sake of this analysis that these statements
assert facts about CACI that are false and defamatory. See, e.g., Church
of Scientology Int’l v. Daniels, 992 F.2d 1329, 1331-32 (4th Cir. 1993)
("For purposes of the discussion of actual malice, we will assume that a
jury could find a defamatory meaning in [defendant’s] statement, and
that a jury could find that the statement was of and concerning [plain-
tiff].")
20 CACI PREMIER TECHNOLOGY v. RHODES
ical 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 unbri-
dled, caustic, and indignant.
The actual malice "rule was prompted by a concern that, with
respect to the criticism of public officials in their conduct of govern-
mental affairs, a state-law rule compelling the critic of official con-
duct to guarantee the truth of all his factual assertions would deter
protected speech." Milkovich, 497 U.S. at 14 (citations and internal
quotation marks omitted). The conduct of the military and its desig-
nated civilian surrogates during wartime is a matter of the highest
public concern, and speech critical of those responsible for military
operations is well within "the constitutionally protected area of free
discussion." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966); see also id.
("Criticism of those responsible for government operations must be
free, lest criticism of government itself be penalized."); New York
Times Co. v. United States, 403 U.S. 713, 728 (1971) (Stewart, J.,
concurring) ("[I]t is perhaps here[, in the areas of national defense and
international affairs,] that a press that is alert, aware, and free most
vitally serves the basic purpose of the First Amendment. For without
an informed and free press there cannot be an enlightened people.");
United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988) (Wil-
kinson, J., concurring) ("National security is public security, not gov-
ernment security from informed criticism. No decisions are more
serious than those touching on peace and war; none are more certain
to affect every member of society."). The actual malice standard thus
offers broad protection for the media commentator who is critical of
public officials or public figures responsible for war-related activities.
Such a commentator must simply "maintain[ ] a standard of care such
as to avoid knowing falsehood or reckless disregard of the truth."
Time, Inc. v. Pape, 401 U.S. 279, 291 (1971).
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." J.A.
1091-92. CACI does not contest its status as a public figure. CACI
CACI PREMIER TECHNOLOGY v. RHODES 21
became a public figure because the U.S. Army’s military intelligence
branch was woefully short of interrogators and engaged CACI to pro-
vide 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. See Gertz, 418 U.S. at
345 (stating that "the communications media are entitled to act on the
assumption that public officials and public figures have voluntarily
exposed themselves to increased risk of injury from defamatory false-
hood"); Hatfill v. New York Times Co., ___ F.3d ___, ___, No. 07-
1124, slip op. at 8 (4th Cir. Jul. 14, 2008) (same). 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. J.A. 1092.
A.
We first turn to CACI’s claim that Rhodes defamed it by making
statements on her show that its employees misrepresented their
authority to soldiers at Abu Ghraib. In statement 2 on August 11,
2005, Rhodes said: "[L]ow level specialists . . . testified that they
believed they were working for their government, and really they
were working for CACI and Titan, as tools." J.A. 182. In statement
6 on August 24 Rhodes indicated that contractor employees misrepre-
sented their authority to "our kids" (soldiers) and ordered "some of
the really sick, twisted stuff" at Abu Ghraib. J.A. 208. In statement
7 on August 24 Rhodes said: "[I]t was obviously the contractors who
. . . misrepresented to our kids who they were and what they were
ordered to do." J.A. 209. In statement 9 on August 25 Rhodes said:
"The President let those contractors go in there [at Abu Ghraib], and
he let those contractors lie to our kids, and those kids believed that
those contractors were military intelligence units, that they were CIA.
But they weren’t. They weren’t. They were employees of CACI and
Titan." J.A. 214. Moments later in statement 10, while discussing the
role of CACI and Titan employees at Abu Ghraib, Rhodes continued:
22 CACI PREMIER TECHNOLOGY v. RHODES
"[T]hey wore military uniforms, too, these contractors. They literally
impersonated officers." J.A. 218.
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 per-
sonnel." J.A. 1101. 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 deter-
mination.
Brigadier General Karpinski, in her interview, insisted that "vol-
umes of documents and information" confirmed that the soldiers
implicated in the Abu Ghraib abuses were acting on the orders of both
military intelligence personnel and contract interrogators. J.A. 290.
The Guardian newspaper reported that some of the soldiers accused
of abuse at Abu Ghraib "claimed to be acting in part under the
instruction of" contract interrogators. J.A. 339. The Fay/Jones report
found that contractors were supervising soldiers and vice versa and
that the contractors’ presence was "a complicating factor with respect
to command and control" at Abu Ghraib. J.A. 598. This finding was
supported by a prison organizational chart showing a CACI employee
as head of the Detainee Assessment Branch at Abu Ghraib, with sol-
diers as his subordinates. Similarly, Seymour Hersh, the investigative
journalist, reported that military police had abdicated the day-to-day
management of detainees to military intelligence and contractor per-
sonnel. The Taguba report found that contractors wore military
(desert camouflage) uniforms, which "cause[d] confusion and may
have contributed to the difficulties in the accountability process." J.A.
503. Further, the Taguba report accused CACI employee Stepha-
nowicz of allowing or instructing soldiers to use interrogation tech-
niques that were "neither authorized [nor] in accordance with
applicable regulations/policy," J.A. 519, and of bearing responsibility
for the abuses. In sum, as the district court concluded, Rhodes’s
sources revealed that CACI employees inappropriately assumed posi-
tions of authority over, and gave orders to, soldiers.
CACI PREMIER TECHNOLOGY v. RHODES 23
CACI contends that the fact that its employees issued instructions
to soldiers is irrelevant. Rather, CACI argues that Rhodes’s sources
gave her "no basis whatsoever for accusing CACI employees" of mis-
representing their authority to soldiers or impersonating officers in the
sense that they wore military uniforms while they supervised soldiers.
Appellants’ Br. 51. CACI is simply wrong. Rhodes’s sources are sus-
ceptible to at least two rational interpretations with respect to the mis-
representation of authority issue; and a speaker or publisher may
adopt "one of a number of possible rational interpretations of
[sources] that [contain] ambiguities" without creating a jury issue of
actual malice. Pape, 401 U.S. at 290. It would be rational to interpret
Rhodes’s sources to suggest simply that soldiers took orders from
CACI employees knowing they were contractors. On the other hand,
it would be equally, if not more, rational to read the sources to sug-
gest that CACI employees were misrepresenting their authority to sol-
diers. For example, the two army reports indicated that CACI
employees had inserted themselves into the chain of command by giv-
ing orders to soldiers and, by wearing military uniforms, had caused
confusion that led to difficulties in chain-of-command accountability.
It was rational for Rhodes to interpret these reports to be saying that
the contractors had no legitimate authority in the chain of command
and that the contractor employees who gave orders to soldiers both
overstepped and misrepresented their authority. Accordingly, Rhodes
did not speak with reckless disregard for the truth when she accused
CACI employees of misrepresenting their authority to soldiers.
B.
On August 10, 2005, while speaking on her show about the treat-
ment 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." J.A. 176. The district court, in considering this statement,
held that there was sufficient information in Rhodes’s sources to pre-
vent CACI from establishing that she spoke with actual malice.
According to the court, CACI could not establish that Rhodes "reck-
lessly disregarded the truth when alleging that CACI employees had
tortured Iraqi detainees." J.A. 1102. We agree.
Rhodes maintains that she used the word "torture" in statement 1
to describe the severe abuse that CACI bore responsibility for at Abu
24 CACI PREMIER TECHNOLOGY v. RHODES
Ghraib, according to her sources. CACI argues that abuse is not a syn-
onym for torture and that Rhodes must be held to have accused CACI
of torture in the sense that word is used in the U.S. criminal code. The
code defines torture as an act "specifically intended to inflict severe
physical or mental pain or suffering (other than pain or suffering inci-
dental to lawful sanctions)." 18 U.S.C. § 2340(1). However, the dic-
tionary definitions of torture range from "any severe physical or
mental pain," Webster’s New World College Dictionary 1512 (4th ed.
2004), to "TORMENT" or "an extreme annoyance or severe irrita-
tion," Webster’s Third New International Dictionary 2414 (2002). We
conclude that a reasonable listener would have understood that
Rhodes was not using the word "torture" in any narrow, legalistic
sense, but in a broader sense that encompassed the range of severe
abuses at Abu Ghraib that had been reported in the media and other
sources through photographs and narrative descriptions. See Masson
v. New Yorker Magazine, Inc., 501 U.S. 496, 515 (1991) (noting that
a court considers "the meaning a statement conveys to a reasonable
reader").
Rhodes relied on several reliable sources in accusing CACI of tor-
ture at the Abu Ghraib prison. The author of the Taguba report, com-
missioned by the U.S. Army, strongly suspected that CACI employee
Stephanowicz was one of four individuals who "were either directly
or indirectly responsible for the abuses at Abu Ghraib." J.A. 519. The
Taguba report went beyond suspicion to find that Stephanowicz was
responsible for abuse when he "[a]llowed and/or instructed MPs . . .
to facilitate interrogations by ‘setting conditions’ which were neither
authorized [nor] in accordance with applicable regulations/policy."
J.A. 519. The report found specifically that Stephanowicz "clearly
knew his instructions [to MPs to ‘set conditions’] equated to physical
abuse." J.A. 519 (emphasis added). The physical abuse documented
by the Taguba report included punching and kicking detainees; pour-
ing phosphoric liquid on detainees; sodomizing a detainee with a
chemical light and perhaps a broomstick; allowing a military dog to
bite a detainee; stacking naked male detainees, handcuffed and shack-
led, in piles; and forcibly requiring male detainees to participate in
group masturbation. In sum, the Taguba report found that "numerous
incidents of sadistic, blatant, and wanton criminal abuses were
inflicted on several detainees." J.A. 495.
CACI PREMIER TECHNOLOGY v. RHODES 25
Rhodes also relied on the Fay/Jones report, another report commis-
sioned by the U.S. Army. The Fay/Jones report found abuse at Abu
Ghraib that was inhumane, sadistic, coercive without lawful justifica-
tion, or a "violat[ion of] U.S. criminal law." J.A. 545. The abuse was
inflicted "by a small group of morally corrupt soldiers and civilians"
employed by CACI and Titan, according to the report. J.A. 527. The
Fay/Jones report detailed forty-four incidents of abuse at Abu Ghraib,
finding that CACI employees were involved in nine. Among the nine
incidents, a CACI interrogator attempted to coerce information from
a detainee by enlisting an MP who prevented the detainee from
breathing for a short time and twisted the detainee’s arm into a painful
position, using a nightstick; a CACI employee interrogated a detainee
who was forced into an unauthorized stress position (squatting on a
chair); and a CACI employee used unmuzzled military dogs to facili-
tate interrogations. The Fay/Jones report recommended that its find-
ings with respect to three CACI employees be forwarded to the Army
General Counsel for potential referral to the Department of Justice for
prosecution. Finally, Fay/Jones reported that the International Com-
mittee of the Red Cross, which visited Abu Ghraib, noted that many
detainees "suspected [of] security offenses or deemed to have intelli-
gence value" were "subjected to . . . both physical and psychological
coercion (which in some cases was tantamount to torture) in order to
force cooperation with their interrogators." J.A. 622 (emphasis added;
internal quotation marks omitted).
Rhodes also relied on another organization’s published interview
with Brigadier General Janis Karpinski who was in charge of Abu
Ghraib when the abuses occurred. Karpinski had "no doubt in [her]
mind that" the civilian contractors, CACI and Titan, "ordered" the
abuses at Abu Ghraib. J.A. 298. According to Karpinski, the civilian
contractors were "irresponsible and non-accountable people" who
used Abu Ghraib as "a playground," and they "g[o]t out of control."
Id. In addition to the official army reports and the Karpinski inter-
view, reputable press reports, which Rhodes followed, indicated that
civilian contractors bore significant responsibility for the abuses at
Abu Ghraib.
Many of the abuses described above could reasonably be character-
ized as causing "severe physical or mental pain." Webster’s New
World College Dictionary 1512. And, in light of the extensive infor-
26 CACI PREMIER TECHNOLOGY v. RHODES
mation that Rhodes relied on with respect to CACI’s role and conduct
at Abu Ghraib, we conclude that CACI has not proffered clear and
convincing evidence that Rhodes spoke with actual malice when she
accused CACI of torturing detainees at the prison. See Carr v. Forbes,
Inc., 259 F.3d at 283. In sum, the record establishes that Rhodes did
not make any statement that CACI committed torture with reckless
disregard as to whether the statement was false or not. See New York
Times, 376 U.S. at 280.
C.
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." J.A. 176. 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.
The Taguba and Fay/Jones reports and Brigadier General Karpinski
concluded that CACI employees bore a substantial measure of
responsibility for the abuses at Abu Ghraib. Both the Taguba and
Fay/Jones reports listed rape and forced sodomy as among the atroci-
ties committed against detainees. A U.S. Senator who viewed the
non-public photographs and videos of Abu Ghraib abuses said that
they contained scenes of rape and murder. The Guardian reported that
a civilian contractor had been accused of raping a young male
detainee. The rape of a teenage male detainee by a civilian contractor
is also discussed in the Fay/Jones report, which mentions a Titan
employee as a likely suspect. The Taguba report found that a male
detainee was sodomized with a chemical light and perhaps a broom-
stick. The sources did not connect any CACI employee to any specific
incident of rape or sodomy. Nevertheless, the Taguba report found
that CACI employee Stephanowicz was responsible for encouraging
abuse at Abu Ghraib and was likely responsible, along with three oth-
ers, for the entire pattern of abuse at the prison — abuse that included
rape and sodomy. Moreover, several sources reported that CACI
employees assumed a supervisory role at the prison, and at least some
CACI employees had a propensity to abuse or encourage soldiers to
abuse detainees. In light of the information available to Rhodes, we
CACI PREMIER TECHNOLOGY v. RHODES 27
conclude that CACI cannot prove that her statement that CACI was
responsible for rape was made with reckless disregard for the truth.
D.
In certain statements Rhodes accused CACI of responsibility for
the rape (or torture) of children at Abu Ghraib. In statement 1 on
August 10, 2005, during a discussion of the Abu Ghraib abuses,
Rhodes said: "And the same independent contractors are doing the
same grotesque things to little boys and girls now that we said Sad-
dam was . . . ." J.A. 177. In statement 2 on August 11, Rhodes asked:
"How about the defense contractors or the oil conglomerates or CACI
or Titan International? . . . [W]hy are they allowed to torture and rape
little children using low-level [military] clerks, who then go to jail for
10 or 15 years?" J.A. 181-82. In statement 11 on August 25, after dis-
cussing the Karpinski interview and the role of CACI and Titan at
Abu Ghraib, Rhodes said: "They [the Iraqi people] say that the raping
of their children and the raping of their children in front of them is
no different than Saddam. It’s incredible. . . [S]he [Karpinski]
explains how this went and . . . how they did it and that they were
paid in cash, these contractors . . . ." J.A. 219.
Rhodes’s accusation about child rape has two components: that
children were raped at Abu Ghraib and that CACI bore responsibility
for the rape. Rhodes’s sources provide support for each component of
the accusation. With respect to child rape at Abu Ghraib, an article
in the Guardian discussed a civilian contractor’s rape of a male
detainee who was in his mid-teens, and the Fay/Jones report included
allegations of the rape of a male detainee aged fifteen to eighteen by
a civilian, who partially matched the description of a Titan interpreter.
(These reports may involve the same incident.) In addition, during a
speech to the ACLU, investigative journalist Seymour Hersh, in dis-
cussing theretofore undisclosed atrocities at Abu Ghraib, said:
Some of the worst things that happened that you don’t know
about. . . . And basically what happened is that those women
[detained at Abu Ghraib] who were arrested with young
boys, children, in cases that have been [video] recorded, the
boys were sodomized, with the cameras rolling, and the
28 CACI PREMIER TECHNOLOGY v. RHODES
worst above all of them is the soundtrack of the boys shriek-
ing.
J.A. 331 (final alteration in original).
Rhodes’s assignment of blame to CACI (and Titan) for the rape of
children at Abu Ghraib begins with her reliance on several sources,
the Taguba and Fay/Jones reports and the Karpinski interview, all of
which indicate a collapse of order at Abu Ghraib. These sources sug-
gest that CACI contributed to this collapse when its employees
improperly assumed supervisory roles and encouraged or instructed
MPs to abuse detainees.3 Major General Taguba stated his belief that
CACI employee Stephanowicz was "directly or indirectly responsi-
ble" for "the horrific abuses suffered by the detainees at Abu Ghraib."
J.A. 519, 520. These abuses would surely include the rape of children.
We are quite mindful that the accusation that a government con-
tractor, 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." New York Times, 376 U.S. at 280. The Supreme
Court has made "clear that reckless conduct is not measured by
whether a reasonably prudent [person] would have published [or spo-
ken], or would have investigated before publishing [or speaking]." St.
Amant v. Thompson, 390 U.S. 727, 731 (1968). Instead, there must be
sufficient evidence to permit the conclusion that the defamatory state-
ment was "made with [a] high degree of awareness of [its] probable
3
In statement 10 on August 25, 2005, Rhodes, in discussing CACI’s
and Titan’s roles in the breakdown of order at Abu Ghraib prison, said:
"[A]nd at night, the little mice would play, and they would play rape the
boys, and rape the girls, and pile them high . . . ." J.A. 218 (emphasis
added). This is an obvious reference to the widely-released photographs
of naked, abused detainees stacked in piles or human pyramids. The exis-
tence of more such photographs was confirmed in the Fay/Jones report.
J.A. 630 (describing an incident, depicted in six photographs, where
detainees "were stripped of their clothing, handcuffed together nude,
placed on the ground, and forced to lie on each other and simulate sex
while photographs were taken").
CACI PREMIER TECHNOLOGY v. RHODES 29
falsity." Garrison v. Louisiana, 379 U.S. 64, 74 (1964). 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." Fitzgerald v. Penthouse Int’l, 691 F.2d
666, 670 (4th Cir. 1982) (internal quotation marks omitted). 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 Briga-
dier General Karpinski’s interview for the point that CACI bore gen-
eral 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. See Fitzgerald, 691 F.2d
at 670. 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.
IV.
Several of Rhodes’s statements that CACI challenges as defama-
tory 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. Milkovich, 497 U.S. at 20 (alteration in origi-
nal; citation and internal quotation marks omitted). This category of
protection allows for rhetorical hyperbole and other types of imagina-
tive or exaggerated expression. See id.
A.
In several statements Rhodes, with free use of hyperbole and exag-
geration, criticized the extensive use of U.S. military contractors in
Iraq, saying that their employees could kill without being held to
account. In statement 3 on August 15, 2005, Rhodes said:
No one dared talk about the mercenaries. No one dared talk
about all these companies, Blackwater, and CACI, and
Titan, and now this new one, Three Canopies, that really
30 CACI PREMIER TECHNOLOGY v. RHODES
didn’t even exist until this was started. And then they got
this idea, hey let’s get a Department of Defense contract and
we’ll send killers over there.
J.A. 193-94. In statement 4 on August 22, in the context of a conver-
sation about military recruitment, Rhodes said:
But what’s sickening is if you’re a mercenary, if you go to
work for Triple Canopy or you go to work for Blackwater,
first of all, there’s no laws. You’ll never, ever, ever be
court-martialed. You can do any damn thing you want to,
including torture people. You can do a free-fire zone situa-
tion where you shoot at anybody you want to. . . . You can
do whatever you want. . . . So for those people that just want
to kill for the sake of killing . . . call Triple Canopy or call
Blackwater or call CACI and Titan, especially if you want
to torture people, and never have to come under the long
arm of the law. I mean, that’s how you get away with mur-
der. . . . [Y]ou’ve got these fricken mercenaries over there
just going crazy. And there’s like 30,000 of them. And
there’s about 80,000 of them, but 30- to 40,000 of them are
armed to the teeth and will kill you.
J.A. 202-03. In statement 10 on August 25, while discussing the Kar-
pinski interview, Rhodes said: "[A]ll she [Karpinski] kept hearing
from the people in Iraq is this deteriorated into contractor heaven.
Mercenaries all over the country, killing people." J.A. 217. According
to Rhodes, Karpinski "said it was a deadly mix [at Abu Ghraib]
because [CACI and Titan] had no training in being interrogators." Id.
In statement 13 on August 26, Rhodes spoke with a caller named
David:
Rhodes: You know you’ve got guys over there making,
what, three thousand dollars a week, three hundred dollars
a day.
David: Yeah the contractors.
Rhodes: Yeah, don’t call them contractors, call them what
they are, they’re hired killers, they’re mercenaries.
CACI PREMIER TECHNOLOGY v. RHODES 31
David: Hired killers, yeah.
Rhodes: Yeah, they’re hired killers.
David: Hired killers from Halliburton.
Rhodes: They’re from everywhere, they’re from DynCorp
and CACI and Titan in the prisons, and then you’ve got Tri-
ple Canopy and Blackwater.
J.A. 225-26.
In statement 3 Rhodes says that contractors (such as CACI), in con-
templating work in Iraq, expected to "send killers over there." J.A.
194. Here, Rhodes was offering a permissible hyperbolic character-
ization of the work contractors would perform in Iraq, using tough,
aggressive individuals who might be required to use lethal force. In
statement 4 Rhodes suggests — tongue in cheek — that anyone wish-
ing to torture, kill, or murder should go to work for one of the con-
tractors such as Triple Canopy, Blackwater, CACI, or Titan. "[T]hese
freakin’ mercenaries," she said, were "armed to the teeth and will kill
you," and "can do whatever [they] want" and "never have to come
under the long arm of the law." J.A. 202-03 (emphasis added). Here,
Rhodes was using hyperbole and exaggeration to make the point,
which was well supported by her sources (including the Singer law
review article), that current laws are ineffective in regulating military
contractors operating abroad.
The district court concluded that Rhodes’s characterizations of Iraq
as having "deteriorated into contractor heaven" with "[m]ercenaries
all over the country, killing people" (statement 10), J.A. 217, and
characterizing a list of contractors, including CACI, as "hired killers"
(statement 13), J.A. 225, were "quintessential examples of non-
actionable rhetorical hyperbole." J.A. 1109. These statements are pro-
tected, the court concluded, because they "make[ ] clear to all reason-
able listeners that [they] are offered . . . not as fact[s]," J.A. 1109-10,
but as exaggerated rhetoric intended to spark the debate about the
wisdom of the use of contractors in Iraq.
32 CACI PREMIER TECHNOLOGY v. RHODES
We agree with the district court and conclude that nothing high-
lighted above from statements 3, 4, 10, or 13 supports a claim for def-
amation by CACI.
B.
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 arti-
cle 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 Cano-
pies, 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.
J.A. 193-94. 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 notori-
ously evil people, and they are getting paid with our tax dol-
lars. 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
CACI PREMIER TECHNOLOGY v. RHODES 33
reminders to everybody, that if you stood up to this govern-
ment, that’s what’s going to happen to you, and they were
like walking billboards for tyranny, for treachery, for mur-
der!
J.A. 235-36.
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.
J.A. 1104. We agree. First, when Rhodes speaks of "these people" or
"guys" having fought on the side of apartheid or Mobutu, she is refer-
ring to certain individuals currently employed by the contractors, not
the contractors themselves. (The New York Times Magazine article
referenced by Rhodes reported that some military contractors operat-
ing today "draw from South African veterans of the wars to save
apartheid" and that one contractor considered providing help to
Mobutu Sese Seko, the tyrannical dictator of Zaire. J.A. 353.) Rhodes
did not accuse CACI in its corporate capacity of fighting on behalf
of apartheid or Mobutu. Second, Rhodes’s purpose in making state-
ments 3 and 12 was to advance a strong and vivid argument that the
U.S. government should not use military contractors in Iraq. Rhodes
pressed her case against the use of military contractors by characteriz-
ing in loose and hyperbolic terms what individual mercenary soldiers
and their allies had done in earlier times. Rhodes’s statements, how-
ever, "cannot reasonably [be] interpreted as stating actual facts about"
CACI. See Milkovich, 497 U.S. at 20 (alteration in original; citation
and internal quotation marks omitted). These statements do not sup-
port CACI’s defamation claim.
V.
We turn finally to three related statements that are appropriately
analyzed under both the actual malice standard and the standard pro-
tecting 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
34 CACI PREMIER TECHNOLOGY v. RHODES
show . . . [the] murder of people who have been caught in these drag-
nets in Iraq." J.A. 207. A few sentences later in statement 6, she con-
tinued: "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 peo-
ple but were [sic] ordered by people who work for private contractors,
mercenaries if you will." J.A. 208. 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.
J.A. 209 (emphasis added).
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. J.A. 208. 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, Hal-
liburton, 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 Presi-
dent to bring "whoever it was" — the responsible party or parties —
to justice. Rhodes, under any reasonable interpretation of these state-
ments, was not saying that CACI committed murder at Abu Ghraib.
CACI PREMIER TECHNOLOGY v. RHODES 35
Even if we assumed that Rhodes in these statements was suggest-
ing that CACI was responsible for murder at Abu Ghraib, the state-
ments 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 photo-
graphs had been taken of dead Iraqi detainees at Abu Ghraib, and sev-
eral photographs of at least one dead (and beaten) detainee were
actually released. One detainee, recently transferred to military cus-
tody at Abu Ghraib, was discovered in a shower stall dead, hand-
cuffed, 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. See Garrison, 379 U.S. at 74.
Accordingly, Rhodes’s statements 5, 6, and 8 relating to murder at
Abu Ghraib are protected by the First Amendment.4
4
CACI argues that the district court erred in granting summary judg-
ment with respect to some of Rhodes’s statements on the alternative
ground that they were not "demonstrably false." J.A. 1093, 1096. These
are statements 1, 2, and 4 accusing CACI employees of torture at Abu
Ghraib and statements 2, 6, 7, 9, and 10 accusing CACI employees of
misrepresenting their authority to soldiers. CACI suggests that the dis-
trict court, in saying that these statements were not "demonstrably false,"
meant that they were not provable as false. See Milkovich, 497 U.S. at
19 (noting that a statement must be "provable as false" to support a defa-
mation claim against a media defendant). CACI then argues that the dis-
trict court erred because its reasoning does not support a conclusion that
the pertinent statements are not provable as false. Because the district
court also concluded, as have we, that these same statements are pro-
tected by the actual malice standard, we have no need to consider
whether the district court erred in concluding that they were not "demon-
strably false."
36 CACI PREMIER TECHNOLOGY v. RHODES
VI.
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 Amend-
ment: 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. New
York Times, 376 U.S. at 269 (citations and internal quotation marks
omitted). 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.
For all of the reasons given, the district court’s order granting sum-
mary judgment to Randi Rhodes and Air America Radio is
AFFIRMED.
DUNCAN, Circuit Judge, concurring in the judgment:
The medium of talk radio is one in which hyperbole and diatribe
reign as the preferred tools of discourse. Such expression, though not
infrequently caustic and offensive, nevertheless enjoys robust First
Amendment protection. Because prevailing First Amendment juris-
prudence imposes a particularly onerous burden on public figures
seeking to challenge such expression, I am compelled to concur in the
judgment affirming the district court’s award of summary judgment
to Rhodes.
I write separately for two reasons. The first is to emphasize my
view that the appropriateness of summary judgment here is more
reflective of the magnitude of CACI’s burden than the defensibility
of Rhodes’s comments. The second, as elaborated below, is to explain
why even the most egregious and ill-supported of Rhodes’s
CACI PREMIER TECHNOLOGY v. RHODES 37
statements—those implicating CACI in the rape of children—while
approaching the outer limits of First Amendment protection, are nev-
ertheless protected expression.
In Rhodes’s August 11, 2005 broadcast, when speaking of "the
defense contractors or the oil conglomerates or CACI or Titan Inter-
national," she asked, "[W]hy are they allowed to torture and rape little
children using low-level clerks, who then go to jail for 10 or 15
years?" J.A. 182. This accusation is no mere hyperbole, nor is it sus-
ceptible to an allegorical interpretation. Instead, Rhodes unequivo-
cally charged CACI employees (and others) with a crime that shocks
the conscience. If false, the statement seems paradigmatically defama-
tory.
Overlaying and cabining state defamation laws, however, are the
First Amendment’s stringent protections of free discourse. As rele-
vant here, the First Amendment disallows a public figure from "re-
covering 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 dis-
regard of whether it was false or not." New York Times Co. v. Sulli-
van, 376 U.S. 254, 279-80 (1964). For a plaintiff to prove "actual
malice," he must prove that the defendant had a particular, subjective
state of mind at the time the statements were made. See Gertz v. Rob-
ert Welch, Inc., 418 U.S. 323, 334 n.6 (1974). Barring proof of actual
knowledge of falsity, then, a plaintiff must show that the statement
was made with "reckless disregard," or "with a high degree of aware-
ness of . . . probable falsity." Carr v. Forbes, Inc., 259 F.3d 273, 282
(4th Cir. 2001) (omission in original) (internal quotations omitted).
Moreover, the proof of actual malice must take the form of clear
and convincing evidence, and a public figure may not wait until the
trial to submit such evidence. Indeed, "where the factual dispute [in
a defamation action] concerns actual malice, . . . the appropriate sum-
mary judgment question will be whether the evidence in the record
could support a reasonable jury finding either that the plaintiff has
shown actual malice by clear and convincing evidence or that the
plaintiff has not." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-
56 (1986) (emphasis added).
38 CACI PREMIER TECHNOLOGY v. RHODES
The evidence in the record suggests, at most, attenuated support for
Rhodes’s accusation that CACI was involved in child rape. Two
sources available to Rhodes at the time she levied the charge against
CACI—the Guardian article and the Fay/Jones report—credibly
recount the rape of a teenager by a contractor at Abu Ghraib, but nei-
ther source specifically links CACI to that crime, nor does Rhodes
point to any other source that does so. Similarly, the Taguba report
found that CACI employee Stephanowicz shared substantial responsi-
bility for much of the abuse at Abu Ghraib, but it did not allude to
his involvement in the specific child-rape incident. Combined, these
sources hardly prove CACI’s liability for child rape.
But CACI must do more than prove the insufficiency of the evi-
dence to support Rhodes’s statement. To survive summary judgment,
CACI must have forecast clear and convincing evidence that Rhodes
made the statement with a high degree of subjective awareness of its
probable falsity. In light of the evidence suggesting CACI’s involve-
ment in other abuses at Abu Ghraib and the credible sources identify-
ing a contractor as the perpetrator of the child rape, the record does
not support a finding, by clear and convincing evidence, that Rhodes
levied the accusation recklessly. It is the absence of sufficient evi-
dence of Rhodes’s state of mind, and not any testament to the actual
veracity or justifiability of her statement, that makes summary judg-
ment appropriate here.
For these reasons, I concur in the judgment.