06-2140

In the

United States Court of Appeals

For the Fourth Circuit

CACI PREMIR TECHNOLOGY, INC., andCACI INTERNATIONAL INC.,

RAI RHODES and PIQUANT, LLC d//a AirAmerica Radio,

...Plaintif-Appellants

v.

Defendants-Appellees,

ON APPEAL FROM TI UNITED STATES DISTRCT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

BRIEF OF AMICI CURIAE ALM MEDIA, INC., THE ASSOCIATED PRESS, COXENTERPRISES, INC., DOW JONES & COMPANY, INC., GANNETT CO., INC., THEHEART CORPORATION, LANDMAR COMMUNICATIONS, INC., MAGAZINE

PUBLISHERS OF AMERICA, INC., NBC UNIVRSAL, INC., THE NEW YORK TIMESCOMPAN, NEWSPAPER ASSOCIATION OF AMRICA, NEWSWEEK, INC., THE

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, THE REPORTERSCOMMITTEE FOR FREEDOM OF THE PRESS, TIME INC., and THE WASHINGTON

POST, IN SUPPORT OF APPELLEES

Jack M. WeissJoshua Wilkenfe1d

Laura M. LeitnerGIBSON, DUN & CRUTCHER LLPAttorneys for Amici Curiae200 Park AvenueNew York, New York 10166(212) 351-4000

Theodore B. OlsonTheodore J. Boutrous, Jr.GIBSON, DUN & CRUTCHER LLPAttorneysfor Amici Curiae1050 Connecticut Avenue N.W.Washington, DC 20036(202) 955-8500

OF COUNSEL:

ALM MEDIA, INC.Allison C. HoffmanFabio B. Bertoni345 Park Avenue SouthNew York, NY 10010

THE ASSOCIATED PRESS

David H. Tomlin450 W. 33rd StreetNew York, NY 10001

Cox ENTERPRISES, INC.

Andrew MerdekDale Cohen6205 Peachtree Dunwoody RoadAtlanta, Georgia 30328

Dow JONES & COMPANY, INC.

Stuart D. Karle200 Liberty StreetNew York, NY 10281

GANNETT CO.., INC.Barbara W. WallMark E. Faris7950 Jobes BrancMcLean, VA 22107

THE HEARST CORPORATION

Eve B. BurtonJonathan R. Donnellan300 West 57th Street, 40th FloorNew York, NY 10019

LANDMARK COMMUNICATIONS, INC.

Guy R. Friddell, III150 W. Brambleton AvenueNorfolk, VA 23510

MAGAZINE PUBLISHERS OF AMERICA, INC.

Chrstopher J. Nolan810 Seventh AvenueNew York, NY 10019

NBC UNIVERSAL, INC.Craig Bloom30 Rockefeller PlazaNew York, NY 10112

THE NEW YORK TIMES COMPANYDavid E. McGraw229 West 43rd StreetNew York, NY 10036

NEWSPAPER ASSOCIA nON OF AMERICA

René P. Milam4401 Wilson Boulevard, Suite 900Arlington, Virginia 22203

NEWSWEEK, INC.

Stephen Fuzesi, Jr

251 West 57th StreetNew York, NY 10019

THE RADIO-TELEVISION NEWS DIRECTORS

ASSOCIA TION

Kathleen A. KirbyWiley Rein LLP1776 K Street, N.W.Washington, DC 20006

THE REpORTERS COMMITTEE FOR FREEDOM OF

THE PRESSLucy A. DalglishGregg P. Leslie1101 Wilson Blvd., Suite 1100Arlington, Virginia 22209

TIME INC.

Robin Bierstedt1271 Avenue of the AmericasNew York, NY 10020

THE WASHINGTON POSTMary An WernerEric LiebermanJ ames McLaughlin1150 15th Street, NWWashington, DC 20071

11

CORPORATE DISCLOSUR STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, counsel

for Amici Curiae certify the following:

1. ALM Media, Inc. ("ALM") is a privately-held corporation. ALM

publishes 33 national and regional magazines and newspapers, including The

American Lawyer, the New York Law Journal, Corporate Counsel, and The

National Law Journal as well as the website Law.com. Many of ALM's

publications have long histories of reportng on legal issues and serving their local

legal communities. ALM's The Recorder, for example has been published in

Northern California since 1877; the New York Law Journal was begun a few years

later, in 1888. ALM's publications have won numerous awards for their coverage

of critical national and local legal stories, including many stories that have been

later picked up by other national media.

2. The Associated Press ("AP") is a global news agency organized as a

mutual news cooperative under the New York Not-for-Profit Corporation Law.

AP's members include approximately 1,500 daily newspapers and 5,000 broadcast

news outlets throughout the United States. AP has its headquarers and main news

operations in New York City and maintains offices in 240 cities worldwide. AP

news reports in print and electronic formats of every kind reach a subscriber base

that includes newspapers, broadcast stations, news networks and online

information distrbutors in 121 countres. The Associated Press is not a publicly

held corporation and does not have a parent corporation.

3. Cox Enterprises, Inc. ("CEI") is a Delaware privately held

corporation. CEI's indirect subsidiaries include corporations which have facilities

and publish, own and operate news media, including television stations, such as

WSOC- TV in Charlotte, newspapers, and majority-owned, publicly-traded Cox

Radio, Inc., which owns and operates radio stations in the Greenville, SC market.

In addition, CEI subsidiary Cox Communications, Inc. operates numerous cable

television/roadband systems, including several systems based in northern

Virginia.

4. Dow Jones & Company, Inc. ("Dow Jones") is a publicly-held

corporation traded on the New York Stock Exchange. Dow Jones has no parent

corporation and no publicly held corporation owns 10% or more of its stock. Dow

Jones publishes The Wall Street Journal, a daily newspaper with a national

circulation of over 2 million each business day, WSJ.com, a news website with

more than 750,000 paid subscribers, Dow Jones Newswires, a collection of rea1-

time electronic news services, Barron's, a weekly business and finance magazine,

and, through its Ottaway Newspapers subsidiary, community newspapers.

5. Gannett Co., Inc. ("Gannett") is a publicly-held corporation traded on

the New York Stock Exchange. Gannett has no parent corporation and no publicly

11

held corporation owns 10% or more of its stock. Gannett is an international news

and information company that publishes 86 daily newspapers in the United

States, including USA TODA Y, and nearly 1,000 non-daily publications, including

USA Weekend, a weekly newspaper magazine. The company also operates 23

television stations and a national news service, and its monthly online U.S. internet

audience was measured recently at more than 23 million unique visitors.

6. The Hearst Corporation ("Hearst") is a privately held company.

Hearst is one of the nation's largest diversified media companies. Its major

interests include 12 daily and 31 weekly newspapers, nearly 200 magazines around

the world, 29 television stations which reach a combined 18% of U.S. viewers;

ownership in leading cable networks; as well as business publishing, Internet

businesses, television production, newspaper features distrbution and real estate.

7. Landmark Communications, Inc. is a privately held media company

with interests in newspapers, television broadcasting, cable programming and

electronic publishing. Its newspapers include The Virginian-Pilot, The Greensboro

News & Record, The Roanoke Times and more than one hundred community

newspaper and special interest publications. Landmark Communications, Inc.

owns television stations in Las Vegas (KLAS-TV) and Nashville (WTVF-TV), as

well as the Weather Channel, which produces continuous, 24-hour national,

11

regional and local weather-related programming received by more than 87 million

households nationwide.

8. Magazine Publishers of America, Inc. ("MP A") is a national trade

association including in its present membership more than 240 domestic magazine

publishers who publish over 1 ,400 magazines sold at newsstands and by

subscription. MP A members provide broad coverage of domestic and international

news in weekly and biweekly publications, and publish weekly, biweekly and

monthly publications covering consumer affairs, law, literature, religion, political

affairs, science, sports, agriculture, industr and many other interests, avocations

and pastimes of the American people.

9. NBC Universal, Inc. and its NBC News division produce and

distribute news programming through, among others, the NBC and Te1emundo

television networks, NBC Universal's owned and operated television stations,

MSNBC and CNBC. NBC Universal is owned (through intermediate entities) by

General Electrc Company and Vivendi Universal, S.A., both of which are

publicly-held corporations. No other publicly-held company owns more than 10%

of the stock of NBC UniversaL.

10. The New York Times Company ("The Times") publishes The New

York Times, The International Herald Tribune, The Boston Globe, and 15 other

daily newspapers. The Times, a publicly-held corporation traded on the New York

iv

Stock Exchange, has no parents, subsidiaries or affiliate entities (corporate or

otherwise) that have issued stock or debt securities to the public, and no publicly

held entity owns more than ten percent of The Times's stock.

11. The Newspaper Association of America ("NAA") is a nonprofit

organization representing the interests of more than 2,000 newspapers in the

United States and Canada. NAA members account for nearly 90 percent of the

daily newspaper circulation in the United States and include a wide range of non-

daily newspapers. NAA has no parent corporation and owns no stock of any

member. One ofNAA's key strategic priorities is to advance newspapers' First

Amendment interests, including the ability to gather and report the news.

12. Newsweek, Inc. is a wholly-owned subsidiar of The Washington

Post Company, a publicly-held corporation traded on the New York Stock

Exchange. Berkshire Hathaway, Inc., a publicly held company, has a 10% or

greater ownership interest in The Washington Post Company. Newsweek, Inc.

publishes the weekly news magazines Newsweek and Newsweek International,

which are distributed nationally and internationally, and Arhur Frommer's Budget

Travel magazine, which is distrbuted nationally.

13. The Radio-Television News Directors Association ("RTNDA") is a

professional association devoted to electronic journalism. It represents local and

network news executives, educators, students, and others in the radio, television

v

and cable news business worldwide. RTNDA has not issued securities to the

public, and it does not have any publicly-owned parents, subsidiares, or affiliates.

14. The Reporters Committee for Freedom of the Press ("The Reporters

Committee") is a voluntary, unincorporated association of reporters and editors

that works to defend the First Amendment rights and freedom of information

interests of the news media. The Reporters Commttee has provided

representation, guidance and research in First Amendment and freedom of

information litigation in state and federal courts since 1970.

15. Time Inc. is the largest publisher of general interest magazines in the

world, publishing over 130 magazines in the United States and abroad. Its major

titles include Time, Fortune, Sports Illustrated, People, Money, and Entertainment

Weekly. The ultimate parent corporation of Time Inc. is Time Warner Inc., a

publicly-held corporation traded on the New York Stock Exchange.

16. WP Company LLC d/b/a! The Washington Post is the publisher of

The Washington Post, a leading newspaper with a nationwide daily circulation of

over 678,000 and a Sunday circulation of over 965,000. WP Company LLC is a

VI

wholly-owned subsidiary of The Washington Post Company ("Washington Post"),

which is a publicly-held corporation traded on the New York Stock Exchange.

More than 10% of Washington Post's shares are owned by Berkshire Hathaway

Inc., a publicly-held corporation traded on the New York Stock Exchange.

Dated: June 6, 2007

GIBSON, DUN & CRUTCHER LLP

BY:~R ~ O~Theodore B. OlsonGIBSON, DUN & CRUTCHER LLP1050 Connecticut Avenue N.W.Washington, DC 20036

Vll

TABLE OF CONTENTS

Page

IDENTITIES AND INTERESTS OF THE AMICI CURIAE................................... i

INTRODUCTION......... .... .... ... ..... ....... .... ..... ...... ....... ... .......... .... ...... ...... ...... ............ 2

ARGUMENT .................................................................................................. 6

i. Caustic Political Commentar is Core Protected Speech. ................... 6

II. The Actual Malice Standard Strctly Limits Liability for

Commentary on Third Part Reports, Especially When SuchReports Are Inherently Ambiguous. .................................................. i 0

A. The Actual Malice Standard-Crafted to Guarantee

Informed Public Debate-Must be Applied So as toAfford Broad Protection to Commentary Critical ofGovernment on Matters of National Security. ......................... 11

B. Faithful Application of the Actual Malice Standard isParticularly Essential When Challenged Commentaryor Reporting Involves National Security and theCompetency of Government. ................................................... 12

C. The Actual Malice Standard Precludes Liability forCommentary on Apparently Reliable Third PartReports..................................................................................... 15

D. The Actual Malice Standard Immunizes Reasonable

Interpretations of Reports That "Bristle WithAmbiguity" ............................................................................... 19

E. In the Context of Implied Libel, a Libel Plaintiff MustProve that the Defendant Intended the DefamatoryImplication and that the Defendant Published theDefamatory Implication with Actual Malice ...........................21

CONCLUSION.... ...................... .................. ..... ....... .......... ....... .............................. 25

11

TABLE OF AUTHORITIES

PageCases

Bartimo v. Horsemen's Benevolent & Protective Ass 'n,771 F.2d 894 (5th Cir. 1985) ...............................................................................20

Bradley v. Computer Sciences Corp.,643 F .2d 1 029 (4th Cir. 1981)............................................................................. 14

Campbell v. Citizens for an Honest Government, Inc.,255 F.3d 560 (8th Cir. 2001) ............................................................................... 20

Carr v. Forbes,259 F.3d 273 (4th Cir. 2001) .........................................................................10, 12

Craig v. Harney,331 U.S. 367 (1947)............................................................................................... 5

Dodds v. Amer. Broad. Co.,145 F.3d 1053 (9th Cir. 1998) .............................................................................22

Flowers v. Carville,310 F.3d 1118 (9th Cir. 2002) ............................................................................. 17

Franklin Prescriptions, Inc. v. New York Times Co.,424 F.3d 336 (3d Cir. 2005) ................................................................................ 22

Goldstein v. Chestnut Ridge Volunteer Fire Co.,218 F.3d 337 (4th Cir. 2000) ............................................................................... 13

Howard v. Antilla,294 F.3d 244 (lst Cir. 2002)................................................................................ 22

Hustler Magazine v. Falwell,485 U.S. 46 (1988)... .................. .................... ............ .......... ..... ........ ................ ..... 9

Masson v. New Yorker Magazine,501 U.S. 496 (1991)............................................................................................. 19

Metabolife lnt'l v. Wornick,264 F. 3d 832 (9th Cir. 2001) ............................................................................... 23

Moldea v. New York Times,22 F.3d 310 (D.C. Cir. 1994)............................................................................... 17

New Life Ctr., Inc. v. Fessio,2000 U.S. App. LEXIS 20894 (4th Cir. 2000)....................................................15

iv

New York Times v. Sullivan,376 U.S. 254 (1964)...................................................................................... passim

Nichols v. Moore,477 F.3d 396 (6th Cir. 2007) ............................................................................... 22

Parks v. LaFace Records,329 F.3d 437 (6th Cir. 2003) ...............................................................................23

Partington v. Bugliosi,56 F.3d 1147 (9th Cir. 1995) ............................................................................... 18

Peter Scalamandre & Sons v. Kaufman,113 F .3d 5 56 (5th Cir. 1997)............................................................................... 23

Reuber v. Food Chemical News, Inc.,925 F.3d 703 (4th Cir. 1991 (en banc) ..........................................................10, 12

Rossignol v. Voorhaar,316 F .3d 516 (4th Cir. 2003) .......... .......... ............ ...... .............. ............ ............... 14

Ryan v. Brooks,634 F.2d 726 (4th Cir. 1980) ............................................................................... 15

Saenz v. Playboy Enterprises, Inc.,841 F .2d 1309 (7th Cir. 1988)............................................................................. 22

St. Amant v. Thompson,390 U.S. at 731 (1968)................................................................................... 11,20

Time, Inc. v. Pape,40 1 U.S. 279 (1971 )................. ....... ......................... .................... ........... ............. 19

Ulrich v. City & County of San Francisco,308 F.3d 968 (9th Cir. 2002) ............................................................................... 13

United States v. Morison,844 F.2d 1057 (4th Cir. 1988) .............................................................................13

Walker v. Pulitzer Publishing Co.,394 F.2d 800 (8th Cir. 1968) ...................................................................16, 17, 19

Waskow v. Associated Press,462 F.2d 1173 (D.C. Cir. 1972)........................................................................... 16

Winn v. AP,903 F. Supp. 575 (S .D.N. Y. 1995) ............ .......... ........ ........... ....... ...... ................ 16

v

Other Authorities

Diana Owen, "New Media and Contemporary Interpretations ofFreedom of the Press", in Freeing the Presses: The FirstAmendment In Action 142 (Timothy E. Cook, ed. 2005)..................................... 5

Geoffrey Stone, Perilous Times: Free Speech in Wartime from theSedition Act of 1798 to the War on Terrorism 46 (2004)...................................... 8

Patrck S. Washburn, A Question of Sedition: The FederalGovernment's Investigation of the Black Press During World WarII 144 (1986).... ............... ............ ........ ......... ............ ..... ..... ....................... ...... ....... 9

Restatement (Second) of Torts § 611 (1977). ......... ...... ................ .......................... 18

Roger Streitmatter, Voices of Revolution: The Dissident Press inAmerica 22-23, 26-27 (2001) ................................................................................ 9

W. Lance Bennett and William Serrn, The Watchdog Role, in ThePress 172 (Geneva Overholser and Kathleen Hall Jamieson, eds.2005) ...................................................................................................................... 7

William D. Sloan and Julie H. Williams, The Early American Press,1690-1783, 3-7 (1994) ........... ................. ................ ...... ........... ........... ................... 8

Rules

Federal Rule of Appellate Procedure 29.............. ............... ....... .............. ........ ......... 1

vi

IDENTITIES AN INTERESTS OF THE AMICI CURIAE1

Amici include leading news services, publishers of daily newspapers and

weekly magazines, national television and radio broadcast networks, and national

associations ofjoumalists, broadcasters, and publishers. Amici and other news

organizations, fulfillng their classic First Amendment "watchdog" role, daily

report and comment on allegations of serious misconduct by government officials

and surrogates, including ongoing, unresolved investigations into such misconduct.

Amici have a direct interest in assuring that the actual malice standard of

New York Times v. Sullvan2 and its progeny continues to afford necessary

protection for commentators in the inherently uncertain context of unresolved

investigations of official misconduct. Amici also wish to insure that the actual

malice standard applies fully to public affairs commentary in new genres like

b10gging and live talk radio. The watchdog function is no less critical when

commentary on the central issues of the day shades over into the provocative or the

polemical, or even when it expresses undisguised outrage. Amici urge this Court to

affirm the judgment of the Distrct Court.

1 Appellants have refused to consent to the fiing of this brief. Pursuant to Federal Rule of

Appellate Procedure 29(a), amici have fied a motion for leave to file.

2 376 U.S. 254 (1964) ("Sullvan").

INTRODUCTION

This libel case presents important issues concerning the proper application

of the actual malice standard to biting and indignant political commentary in the

"wide-open" medium of live talk radio. The case arises from Randi Rhodes'

critical, indeed scathing, remarks on Air America radio about a u.s. governent

contractor, CACI, that provided "interrogation services" at the notorious Abu

Ghraib prison in Iraq. Prior to the broadcasts at issue, CACI had been assigned

culpability of ambiguous scope in at least two official government investigations of

the abuses at Abu Ghraib, in an interview with the former head of U.S. detention

facilities in Iraq, and in various reputable press accounts. See Appellees' Brief at

7 -9; 12-14. Referrng repeatedly to the official sources, Rhodes offered listeners

her damning view ofCACI's and other contractors' responsibility for the abuses at

Abu Ghraib. She criticized the Government for prosecuting low-ranking reservists

when, as she saw it, it was higher ups and contractors like CACI who were

ultimately responsible.

Rhodes' broadcasts thus involve:

· secondary commentary (as distinguished from eyewitness reporting);

on

. allegations of serious misconduct and abuse by government officials

and their surrogates;

2

. in the grave context of a controversial war and a national, if not

international, debate about the meaning of "torture";

. in the inherently uncertain realm of ongoing criminal and cour

martial investigations;

. based upon at least two official military reports, a published interview

with a supervising officer, and other reliable sources.

Moreover, Rhodes' statements were broadcast on live talk radio, in a setting that is

"hyperbolic, exaggerated, and highly sarcastic." JA-130.

Each of these factors, and various combinations of them, implicate the core

concerns of Sullivan and the actual malice standard. Recognizing that "erroneous

statement is inevitable in free debate, and that it must be protected if the freedoms

of expression are to have the 'breathing space' that they need. . . to survive,"3

Sullivan requires that courts give wide berth to criticism of government conduct.

The actual malice standard ensures that "would-be critics of official conduct" are

not forced to guarantee the accuracy of their criticism or the facts they marshal to

support it.

3 376 U.S. at 279.

3

In this case, as in Hatfll v. The New York Times Company,4 what is at stake

is the "vigor. . . of public debate"5 on government investigations of heinous

crimes. When the facts are evolving and the responsibility for criminal conduct is

murky, news reports and commentary can play an invaluable role in sparking or

redirecting an official investigation, prompting witnesses to come forward with

new evidence or new leads, and armng citizens with information about the

competence or independence of the officials managing the investigation. Amici

have a vital, ongoing interest in insuring that the Court's application of the actual

malice standard in this case affords them the necessary freedom to report and

comment on uncertain facts in unresolved, ongoing investigations.

News coverage of live investigations must, of necessity, concern itself with

leads, hypotheses and fragmentary facts that can be viewed only "through a glass

darkly." Investigations can end inconclusively or take a wholly unanticipated

direction. At a given moment in time, journalists may have pieced together the

puzzle in a way that, with hindsight, turns out to be wrong or at least unprovable.

When public officials and public surrogates are implicated in reporting or

4 No. 07-1124 (pending oral argument). Amici and other news organizations also have fied a

brief amici curiae in Hatfll ("Hatfll amici brief') urging affirmance of the sumaryjudgment rendered in favor of New York Times and incorporating certain of the argumentsadvanced here.

5 376 U.S. at 279.

4

commentary on investigations, proper application of the actual malice standard is

of critical importance to uninhibited coverage. Vigorous news coverage and

commentary on ongoing investigations is important not only to amici but to the

society at large. Media accounts playa critical "watchdog" role in prodding

official investigators and in apprehending those guilty of crimes or other serious

misconduct. 6

Those who undertake a public trst are to be treated as "men of fortitude,

able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376 (1947),

quoted in Sullivan, 376 U.S. at 273. Sharp, unbridled criticism of public officials

and public institutions is as old as the Republic. New genres like live talk radio,

blogging, and internet chat rooms embody this important tradition in American

journalism.7

6 Examples of instances in which media accounts resulted in critical law enforcement

breakthroughs are cited in the Hatfll amici brief at 4-5.

7 "New media offer lower cost alternatives to the traditional press with fewer barrers to entr.

Certain new media forms, such as online sources, cable television, and low-power FM radio,readily accommodate open paricipation by amateur news producers. . .. (E)ffective newmedia mechanisms have emerged that cultivate direct citizen action beyond monitoringinformation and expressing opinions. New media ultimately permit citizens to work on theirown behalf as effective governent 'watchdogs.'" Diana Owen, "New Media andContemporary Interpretations of Freedom of the Press", in Freeing the Presses: The FirstAmendment In Action 142 (Timothy E. Cook, ed. 2005).

5

In these unconventional forums for public debate, engaged citizens take

their facts from traditional news reporting or from published statements by

government officials, then offer their own individual commentary or "spin." Their

commentary is based on facts gathered by others, not first-hand observations of the

publisher or speaker. Rhodes, for example, makes it clear that she is getting her

information from sources - sources to which she refers, posts on her website, and

sometimes assigns as "homework" reading for her listeners. Appellees' Brief at 6.

Thus, Rhodes is essentially in the same position as any other media-savv modern

citizen - reading the same articles, and offering her "take" as a citizen

commentator. The context and content of this commentary mark it as non-

actionable hyperbole and overstatement.8 Even if Rhodes' polemical statements

are viewed as factual, however, it is imperative that her commentary be afforded

the "breathing room" that proper application of the actual malice standard requires.

ARGUMENT

I. Caustic Political Commentary is Core Protected Speech.

Edgy, partisan, polemical speech has deep roots in the history of American

journalism. From the earliest days of the Nation, outspokenjoumalists have been

8 See Appellees' Brief at 20-28.

6

chastised as extremists, have had their reports or commentary described as

unfounded, and have been threatened with legal sanctions. "The founding fathers

who insisted on the First Amendment did so in a time when there was almost no

objective reporting, and the press was viciously and often unfairly partisan.

Nonetheless, they understood that even with the faults of the press, a democratic

nation cannot function without journalism acting as a watchdog." W. Lance

Bennett and Wiliam Serrin, The Watchdog Role, in The Press 172 (Geneva

Overholser and Kathleen Hall Jamieson, eds. 2005).

History also teaches that a provocative political press is not simply tolerated

as an unfortnate byproduct of mainstream journalism; rather, throughout

American history, journalism that was lambasted as extreme or irresponsible in its

own time often proved (with hindsight) to have adopted the more responsible

position, or even to have been instrmental in rectifying a gross, even pervasive,

social ill. Polemical journalism helped establish American independence and

exposed the evils of slavery. Yet, in many instances, authors who adopted

unpopular (though later vindicated) positions were challenged as irresponsible, and

subjected to legal sanctions:

. Colonial newspapers adopted highly partisan and inflammatory

rhetoric in the years immediately preceding the Revolutionar War.For example, the "Journal of Occurrences," a proto-wire service thatdistributed reports to newspapers throughout the colonies, offereddaily reports decrying the suffering imposed by the British. "Despitethe partisans' claims that the 'Journal's' news accounts were

7

imparial, they were nothing of the sort. . . . Its news, spicy and one-sided, hit two major themes. Over and over the' Journal complainedof the evils of military rule in Boston. Also, it offered frequentexplanations of how militar occupation of the city violated Englishlaw." Wiliam D. Sloan and Julie H. Wiliams, The Early AmericanPress, 1690-1783, 149 (1994).

. The Jeffersonian Republican newspapers that inspired the enactment

and enforcement of the notorious Alien and Sedition Acts wereunabashedly partisan and vituperative in their criticism of the AdamsAdministration and the Federalist Congress. Geoffrey Stone, PerilousTimes: Free Speech in Wartime from the Sedition Act of 1798 to theWar on Terrorism 46 (2004). For criticizing the AdamsAdministration's spending policies, Thomas Cooper, one of the firstcommentators prosecuted under the Sedition Act, was charged with"having published a false, scandalous and malicious attack on thecharacter of the President of the United States, with an intent to excitethe hatred and contempt of the people of this countr against the manof their choice." ¡d. at 54-55. These efforts to prosecute divergingopinions were later recognized as perverse: Sullivan described theSedition Act as "inconsistent with the First Amendment" and notedthat "the attack upon its validity has carried the day in the court ofhistory." Sullivan, 376 U.S. at 276.

. William Lloyd Garrson, who published the abolitionist newspaperThe Liberator, was jailed for libel for accusing an admitted slavetrader of mistreating the slaves under his control. Additionally,various state governents launched attacks on the newspaper, itsmessage, its readers, and its editor. "(T)he city of Georgetown. . .made it ilegal for free blacks to read the paper;" "The Georgialegislature offered a bounty of$5,000 to anyone who kidnapped andbrought Garrison before the legislators to answer for his misdeeds;"and "Elected officials in South Carolina offered a reward to anyperson who apprehended Liberator distributors." Roger Streitmatter,Voices of Revolution: The Dissident Press in America 22-23, 26-27

(2001).

. As recently as World War II, journalists who spoke out againstextreme racism and racial violence were viewed with suspicion, andeven targeted for government prosecution. The Justice Department

8

and the Post Office investigated the black press, finding publicationssuch as New Negro World objectionable "because (they were)'devoted in the main to an attack upon alleged unjust treatment ofNegroes by white.' . .. (Post Office official) Breen noted numerousexamples of what he considered seditious material, including thefollowing editorial statement: 'What is meant by Subversive and pro-Axis activities, when a Negro can be arrested for evading the draft andthe same Government has no right to interfere with a white civilian inLouisiana who shoots down a Negro after he becomes a soldier? Ifthe Axis shoots him down, he died in service of his countr, if aCracker shoots him down no harm is done.'" Patrck S. Washburn, AQuestion of Sedition: The Federal Government's Investigation of theBlack Press During World War II 144 (1986).

In the analogous context of political cartoons, the Supreme Court itself has

noted the historical importance of sharp political commentary :

Despite their sometimes caustic nature, from the early cartoonportaying George Washington as an ass down to the present day,graphic depictions and satirical cartoons have played a prominent rolein public and political debate. Nasts castigation of the Tweed Ring,Walt McDougall's characterization of Presidential candidate James G.Blaine's banquet with the milionaires at Delmonico's as "The RoyalFeast of Belshazzar," and numerous other efforts have undoubtedlyhad an effect on the course and outcome of contemporaneous debate. ... From the viewpoint of history it is clear that our political discoursewould have been considerably poorer without them.

Hustler Magazine v. Falwell, 485 U.S. 46, 54-55 (1988) (Rehnquist, C.J.).9

9 Perhaps the most famous political caroonist was Thomas Nast. Nast published caroons thatamounted to "a graphic vendetta against Willam M. 'Boss' Tweed and his corrpt associatesin New York City's 'Tweed Ring.'" Hustler, 485 U.S. at 54. In response, Tweed allegedlysaid, "Stop them damned pictures. I don't care so much what the papers say about me. Myconstituents can't read. But, damn it, they can see pictures!" Richard A. Fischer, ThemDamned Pictues: Explorations in American Political Caroon Ar 2 (1996). Nast's workwas instrumental in turing public opinion "because of the emotional impact of its

(Footnote continued on next page J

9

Randi Rhodes' Abu Ghraib invective is but the latest in a long line of

American political commentary that contemporaries branded as outrageous or

offensive. Sullivan and its progeny recognize that such speech should receive

broad protection from defamation liability. As Appellees point out, the contest

over the alleged falsity of such political speech should be fought with

countervailing speech, "on the field of polemical battle(rather) than in a

defamation suit." Reuber v. Food Chemical News, Inc., 925 F.3d 703, 718 (4th

Cir. 1991 (en banc).

II. The Actual Malice Standard Strictly Limits Liability for

Commentary on Third Party Reports, Especially When SuchReports Are Inherently Ambiguous.

Because CACI is both a public figure and a public official, lOin order to

overcome summary judgment, CACI must "forecast evidence sufficient to prove

actual malice by clear and convincing evidence." Carr v. Forbes, 259 F.3d 273,

283 (4th Cir. 2001). Several lines of established authority confirm that CACI

cannot make that showing.

(Footnote continued from previous page J

presentation. It continuously goes beyond the bounds of good taste and conventionalmaners." Hustler, 485 U.S. at 54 (quoting C. Press, The Political Cartoon 251 (1981)).Political caroons were also an important par of the public debate during the women'ssuffrage movement. American Political Caroons: An Introduction, available athttp://ww2.truman.edu/parker/research/caroons.html (last accessed May 28,2007).

10 See Hatfll amici brief at 7-14 (discussing public official status of governent surrogates andcontractors performing functions that would qualify direct governent employees as publicoffcials).

10

A. The Actual Malice Standard-Crafted to Guarantee

Informed Public Debate-Must be Applied So as to AffordBroad Protection to Commentary Critical of Governmenton Matters of National Security.

Unchecked defamation liability would instil "the pall of fear and timidity n

upon those who would give voice to public criticism," Sullivan, 376 U.S. at 278.

Both the Supreme Court and this Court have recognized that liability may attach to

press coverage of public figures or public officials only upon a showing of "actual

malice." Sullivan, 376 U.S. at 279-80. In Sullivan, the Supreme Court set forth the

"actual malice" standard that a public official or public figure must satisfy in order

to prevail on a libel claim:

A public figure libel plaintiff canot recover for defamation unless heproves that the statement was made. . . with knowledge that it wasfalse or with reckless disregard of whether it was false or not.

376 U.S. 254,280 (1964).

"Reckless disregard," like the term "actual malice" itself, is a constitutional

term of art. To satisfy that demanding prong of the actual malice standard, the

plaintiff must prove by clear and convincing evidence that the allegedly

defamatory statements were made with a "high degree of awareness of their

probable falsity," Garrison, 379 U.S. at 74, or that the defendants in fact

"entertained serious doubts as to the truth" of the statements, St. Amant v.

Thompson, 390 U.S. at 731. The standard is not one that can be satisfied by proof

of negligence or even gross negligence, both of which are objective standards of

11

conduct. Put otherwise, even if a news report or news commentary includes a false

statement of fact, or makes a defamatory accusation that turns out to be untre, the

First Amendment bars liability for defamation absent clear and convincing proof

that the author personally "had a high degree of awareness" of ''probable falsity"

or actually "entertained serious doubts as to the trth of the publication."

The standard is a daunting one, as it should be. As this Court has observed,

the "actual malice" standard is meant to protect against self-censorship as much as

external liability: "Prior censorship by the press of every conceivably false charge

in the course of an intense public controversy also possesses dangers to the values

protected by the First Amendment-dangers which in some particulars parallel

those of censorship by the state." Reuber, 925 F.2d at 717; see also, Forbes, 259

F.3d at 283.

B. Faithful Application of the Actual Malice Standard is

Particularly Essential When Challenged Commentary orReporting Involves National Security and the Competencyof Government.

The constitutional values that underlie the actual malice standard-

promoting robust debate on public affairs, and minimizing the danger of self-

censorship -are uniquely implicated in reporting and commentary on matters of

national security. This is so because:

. It is critically important to citizens to be informed about the threats

they face and their Government's responses to those threats.

12

. Reporting and commentary on national security issues, particularly inthe context of ongoing criminal or court martal investigations, oftenpresents serious uncertainties and severe journalistic obstacles todetermining ultimate trth at any given moment in time.

. Perhaps most important, such commentar (as it did in the presentcase) often goes directly to the competence and performance ofgovernment officials charged with responsibility for national securtyand militar affairs.

Consistent with these practical realities, this Cour has described speech on

matters of public safety and national securty as "a matter of the highest public

concern. . . entitled to the highest level of First Amendment protection." Goldstein

v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,355 (4th Cir. 2000) (emphasis

added); see also Ulrich v. City & County of San Francisco, 308 F.3d 968,979 (9th

Cir. 2002) ("An opinion about the preparedness of a vital public safety institution

goes to the core of what constitutes speech on matters of public concern." (internal

citation omitted)); United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988)

("The First Amendment interest in informed popular debate does not simply vanish

at the invocation of the words 'national security.' . . . No decisions are more

serious than those touching on peace and war; none are more certain to affect

every member of society." (emphasis added) (Wilkinson, J., concurring)).

Similarly, the highest level of constitutional protection applies to reporting

and commentary that is critical of government. At its core, the First Amendment

protects the right to criticize official conduct. See Bradley v. Computer Sciences

13

Corp., 643 F.2d 1029, 1033 (4th Cir. 1981) ("(P)ublic criticism ofgovemmental

policy, governent operations, and governent officials is at the very core of the

constitutionally protected free speech area." (internal citation omitted)); see also

Rossignol v. Voorhaar, 316 F.3d 516,522 (4th Cir. 2003) (describing "criticism of

() official conduct" as the "heart" of the First Amendment). The protections

afforded to reports and commentary on public officials and figures are themselves

only safeguards to ensure robust debate on the conduct of government itself. See,

e.g., Rosenblatt, 383 U.S. at 85 ("Criticism of governent is at the very center of

the constitutionally protected area of free discussion. Criticism of those

responsible for government operations must be free, lest criticism of government

itself be penalized.").

When the government activity under scrutiny also involves an ongoing

investigation, these considerations apply with full force. The issues raised by

ongoing investigations necessarly require journalists and commentators to discuss

ambiguous evidence and changing theories of culpability, as well as the statements

of prosecutors, witnesses, and investigators directly and indirectly implicating

named and unamed individuals. Journalists should not fear to publish unless they

can confirm criminal conduct to a certainty. A more restrctive framework would

broadly deter a wide range of extraordinarily valuable reporting and commentary

about ongoing investigations, including those in the national security arena.

14

c. The Actual Malice Standard Precludes Liability for

Commentary on Apparently Reliable Third Party Reports

Rhodes' commentary referred to, and was based upon, the Taguba report,

the Fay/Jones report, and a published interview with Brigadier General Janis

Karpinski, among other sources. Appellees' Brief at 7-15. It is well-established

that the actual malice standard precludes liability for a defendant who merely

relays, or comments on, facts first reported by seemingly-reliable third parties,

regardless whether the third-part sources have accurately recounted the facts. The

defendant is liable only if she knew of the falsity of the republished material or

subjectively doubted its trth at the time of republication.

This Court has specifically bared a finding of actual malice where a

defendant's "sources ( for) the libelous information appeared reliable" and where

"defendant had no doubts about (the reports') accuracy." Ryan v. Brooks, 634 F.2d

726, 734 (4th Cir. 1980); see also New Life Ctr., Inc. v. Fessio, 2000 U.S. App.

LEXIS 20894, at *27 nA (4th Cir. 2000) ("New Life claims that the allegations

were not trly verified by independent sources because the 'independent sources'

merely repeated what they had previously been told by the sources relied upon in

the Aricle. New Life's view that such a procedure is not a proper way to verify

the allegations does not give rise to an inference of actual malice.").

Similarly, a finding of actual malice is precluded where a defendant merely

republishes the contents of a seemingly reliable source. See, e.g., Waskow v.

15

Associated Press, 462 F.2d 1173, 1176 (D.C. Cir. 1972); Walker v. Pulitzer

Publishing Co., 394 F.2d 800, 802 (8th Cir. 1968) (B1ackmun, J.); Winn v. AP, 903

F. Supp. 575, 579 (S.D.N.Y. 1995) (recognizing that under Virginia law, a

defendant does not act with actual malice in "reiterat(ing) a news article published

by a recognizable reliable source of daily news"). And even if the defendant

misinterprets a third part report, there is no actual malice. As Waskow held, no

liability attaches to a "good faith misinterpretation" of a third part report, because

even if wrong, such a misinterpretation is not "the product of (defendant's)

imagination," and therefore is not an example of actual malice. Waskow, 462 F.2d

at 1176.

Likewise, there is no actual malice even when a defendant selectively relays

third party reports to advance a polemical agenda. The defendant in Walker

allegedly looked to "denigrat( e)" ideological opponents by "emphasiz(ing) and

magnify(ing)" any news reports "thought to reflect unfavorably" on those

opponents, while "suppress(ing) or minimiz(ing) any news reports which would

reflect favorably upon such persons or which would correct or explain unfavorable

reports." Walker, 394 F.2d at 802 n.1. Although defendant played an active

editorial role through his heavy handed selection of material, the Eighth Circuit

nonetheless held that "(t)heeditorial material. . . while vilifying in nature, and

perhaps unnecessarily so, was based on what its wrter believed to be the facts as

16

reported in the several dispatches," and therefore was not published with actual

malice. ¡d. at 805.

A finding of actual malice is particularly inappropriate if a speaker lacks

access to the underlying facts. Because actual malice depends on subjective belief

in probable falsity, liability is reserved for those speakers with independent access

to the facts they repeat. As the Ninth Circuit has explained,

One who repeats what he hears from a reputable news source, with noindividualized reason external to the news report to doubt itsaccuracy, has not acted recklessly. . . . (R)eliance on reports ofreputable news organizations cannot constitute actual malice as amatter of law.

Flowers v. Carvile, 310 F.3d 1118, 1130 (9th Cir. 2002). The Ninth Circuit's rule

distinguishes proper targets for liability from "uninvolved third parties who clearly

lacked access to the facts behind the published reports." ¡d. There can be no

actual malice absent primary access to a report's underlying facts.

This requirement of factual access helps to explain why courts have been

reluctant to impose liability on commentary that is plainly based on facts reported

by others. "(W)hile a critic's latitude is not unlimited, he or she must be given the

constitutional 'breathing space' appropriate to the genre." Moldea v. New York

Times, 22 F .3d 310, 315 CD. C. Cir. 1994). A reader or listener approaches second-

hand commentary knowing that the commentary is primarily aimed at conveying a

speaker's distinct and personal point of view, rather than a set of discovered facts.

17

See Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir. 1995) ("The purose of

the book is to offer the personal viewpoint of the author. . .. Indeed, readers

presumably purchased the book not to read a dr description of the facts but to

learn of Bugliosi's personal perspective."). Proper application of the actual malice

standard, then, requires consideration not only of "the statements at issue" but also

"the circumstances in which they were made." Sullivan, 376 U.S. at 285.

Moreover, whoever the speaker (and whatever the genre), access to reported

facts is obviously unavailable-and a finding of actual malice therefore

impossible-if the underlying subject matter is subject to prohibitive secrecy. In

this case, for example, the challenged statements discussed reports of activities at

an army-run detention center halfway around the world. Large portions of the

official reports were classified. Even high ranking members of government lacked

access to the goings on at Abu Ghraib; Senator John McCain described some of

the same sources Rhodes used as incomplete, and a high ranking military official

acknowledged that no one outside the Defense Department was permitted factual

access to the events under discussion. See Brief of Appellees at 14-15.

Commenting from outside the veil of secrecy, Rhodes clearly could not harbor

doubt as to the factual underpinnings of the cited reports. Rhodes' absence of

independent factual access precludes a finding of actual malice.

18

D. The Actual Malice Standard Immunizes Reasonable

Interpretations of Reports That "Bristle With Ambiguity"

It is well -settled that even the knowing choice of one interpretation of a set

of facts that "bristle ( s) with ambiguities" does not constitute actual malice. In

Time, Inc. v. Pape, 401 U.S. 279, 285-86 (1971), the plaintiff, a police officer,

brought a libel claim against Time magazine based on an article which summarized

a report issued by the United States Commission of Civil Rights and included an

account of allegations of acts of police brutality commtted by the plaintiff. 40 i

U.S. at 280-281. The plaintiff argued that the defendant's failure to refer to the

acts detailed in the report as "allegations" constituted evidence of actual malice.

The Supreme Cour disagreed, however. It held that the reporter's deliberate

omission of the word "alleged" from his report of the civil rights violation did not

amount to "actual malice." Id. at 290. Although the reporter knowingly omitted

the word "alleged," the Court determined, he did so because he thought that the

Commssion in fact believed the plaintiff had commtted the violation. Id. The

Court stated that the "omission of the word 'alleged' amounted to the adoption of

one of a number of possible rational interpretations of a document that bristled

with ambiguities. The deliberate choice of such an interpretation, though arguably

reflecting a misconception, was not enough to create a jury issue of 'malice.'" ¡d.

(emphasis added); see also Masson v. New Yorker Magazine, 501 U.S. 496, 519

(1991) ("The protection for rational interpretation serves First Amendment

19

principles by allowing an author the interpretive license that is necessary when

relying upon ambiguous sources.").11 See Appellees' Brief at 47-52.

The nub of the present appeal is CACI's failure to recognize that the Court

meant what it said in Pape and Masson when it held that a speaker;s choice of one

of a number of "rational" interpretations of a report or another's statement does not

constitute actual malice and is protected by the First Amendment. A "rational"

interpretation is not necessarily the best interpretation, or an interpretation that an

objectively reasonable person might adopt, or the interpretation most favorable to

the plaintiff, or the interpretation that might be adopted by the finder of fact after a

triaL. A "rational" interpretation, to the contrary, is simply one with a logical nexus

to the text or events in question-as distinguished from an interpretation that

suggests the kind of fabrication or utter implausibility that the Court has long

identified as the narrow hallmark of the actual malice standard properly applied.

See St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (no actual malice except

"where a story is fabricated by the defendant, is the product of his imagination, or

11 See also Campbell v. Citizens for an Honest Government, Inc., 255 F.3d 560, 567 (8th Cir.2001) ("(T)he protection for an author's rational interpretation of another's statement servesFirst Amendment principles by allowing her the interpretive license that is necessary whenrelying upon ambiguous sources."); Bartimo v. Horsemen's Benevolent & Protective Ass 'n,771 F.2d 894, 900 (5th Cir. 1985) ("Bartimo's reading of the evidence. . . is not sufficient tocompel an inference that Russell fabricated the Mafia allegation.").

20

is based wholly on an unverified anonymous telephone call . . . when the

publisher's allegations are so inherently improbable that only a reckless man would

have put them in circulation. . . (or) where there are obvious reasons to doubt the

veracity of the informant or the accuracy of his reports"). Here, Rhodes' version

of CACI' s culpability at Abu Ghraib was solidly grounded in various official texts

and overwhelmingly satisfied the Pape/Masson "rational interpretation" standard.

Appellees' Brief at 50-52. The Distrct Court correctly granted summar judgment

on this issue.

E. In the Context of Implied Libel, a Libel Plaintiff Must

Prove that the Defendant Intended the DefamatoryImplication and that the Defendant Published theDefamatory Implication with Actual Malice

This case also involves a claim of implied libeL. CACI Brief at 30-32.

Every Circuit to consider the issue has held that public official/public figure claims

of libel by implication must satisfy a substantial, two-part standard for proof of

actual malice. The plaintiff must show that the defendant: (i) specifically intended

to convey the allegedly defamatory implication; and (ii) that the defendant knew

that the defamatory implication was false or actually believed that the implication

was "probably false".

The first part of this standard insures that discussion of public matters and

public persons is not deterred by fear of responsibility for untold and unanticipated

possible implications of otherwise protected speech. Nichols v. Moore, 477 F.3d

21

396,402 (6th Cir. 2007) ("(P)laintifrs evidence canot meet the high hurdle

presented by a defamation by implication claim. Plaintiff has not presented any

evidence indicating that Michael Moore intended to falsely implicate James

Nichols in the Oklahoma City bombing." (emphasis added)); Franklin

Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 342 (3d Cir. 2005)

(rejecting liability where allegedly libelous implication was only negligently

included); Dodds v. Amer. Broad. Co., 145 F.3d 1053, 1063-1064 (9th Cir. 1998)

("In order to prevail on his claim that ABC's direct statements impliedly defamed.

. . indirectly. . . , Judge Dodds must show. . . . by clear and convincing evidence

that ABC intended to convey the defamatory impression." (emphasis added));

Howard v. Antilla, 294 F.3d 244, 252 (lst Cir. 2002) ("The actual malice test thus

mandates a subjective inquiry. And in a case such as this, where the plaintiff is

claiming injury from an allegedly harmful implication arising from the defendant's

article, he must show with clear and convincing evidence that the defendant()

intended or knew of the implications that the plaintiff is attempting to draw."

(emphasis added)); Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309,1318 (7th

Cir. 1988) ("(W)here the plaintiff is claiming defamation by innuendo, he also

must show with clear and convincing evidence that the defendants intended or

knew of the implications that the plaintiff is attempting to draw from the allegedly

defamatory materiaL" (emphasis added)).

22

This intent requirement reflects more than a mere inter-circuit policy

choice-rather, the intent requirement flows from the "actual malice" standard and

therefore from the Constitution itself. See Metabolife lntl v. Wornick, 264 F.3d

832,848 & n.18 (9th Cir. 2001) (ascribing the requirement of intent to defame-by-

implication to New York Times v. Sullivan and the First Amendment). A contrary

rule would subject journalists to a form of self-censorship more pernicious than

that feared by Sullivan itself: Because an unintended libelous implication might be

lurking in every sentence or paragraph, jouralists would have to wrte around and

edit for myriad unstated nuances. In particular, talk show radio hosts speaking

extemporaneously into an open microphone for hours at a time would have to

watch their every word for unintended implications. Any but the most general and

tepid commentary on ongoing public controversies would be crippled. In this case,

the Distrct Court properly insisted on proof that Rhodes intended to accuse CACI

of actually commtting the crimes of rape, murder, torte and other heinous acts

that form the gravamen of CACI' s libel claim, and correctly found none. See

Appellees' Brief at 31-39.

For similar reasons, a libel-by-implication plaintiff must demonstrate that

the facts constituting the allegedly libelous implication were themselves published

with actual malice. See Parks v. LaFace Records, 329 F.3d 437,462 (6th Cir.

2003); Peter Scalamandre & Sons v. Kaufman, 113 F.3d 556, 562 (5th Cir. 1997).

23

This requirement likewise derives from the Constitution. As discussed above, the

actual malice requirement protects against self-censorship in commentary on

public matters and public persons. Wherever commentary on such matters is at

issue-whether in a claim of direct libel, or libel by implication-the same

standard must apply. To hold otherwise would reinstate the chill of self-censorship

wherever some readers arguably might derive defamatory implications from the

words actually published or broadcast. The protection of Sullivan would be

eviscerated by a rule that required a showing of anything less than actual malice

whenever a possibly libelous implication might be drawn. The District Court

correctly concluded that CACI could not adduce any evidence, much less clear and

convincing evidence, that Rhodes broadcast statements ostensibly accusing CACI

of crimes at Abu Ghraib with knowledge of their falsity or a "high degree of

awareness" of their "probable falsity." See Appellees' Brief at 53.

24

CONCLUSION

For the reasons stated, the judgment of the Distrct Cour should be affirmed.

Dated: June 6, 2007

GIBSON, DUN & CRUTCHER LLP

Jack M. WeissJoshua Wi1kenfeld

Laura M. LeitnerGIBSON, DUN & CRUTCHER LLP200 Park AvenueNew York, NY 10166(212) 351-4000

By: 7le ~ Jo 'C O!iO£Theodore B. OlsonTheodore J. Boutrous, Jr.GIBSON, DUN & CRUTCHER LLP1050 Connecticut Avenue N.W.Washington, DC 20036

Attorneys for Amici Curiae

25

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Pursuant to Fed. R. App. P. 32(a), Appellant certifies that this brief complies

with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and (29)(d) because

it contains 5,839 words, excluding the parts of the brief exempted by Fed. R. App.

P.32(A)(7)(B)(iii).

This brief complies with the tyefaces requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced tyeface using Times New Roman in 14-

point font.

Dated: June 6, 2007

GIBSON, DUN & CRUTCHER LLP

By: ~tJJÐ~ 'ß OLf~Theodore B. OlsonGIBSON, DUN & CRUTCHER LLP1050 Connecticut Avenue N.W.Washington, DC 20036

26

CERTIFICATE OF SERVICE

I hereby certify that on June 6, 2007 a tre and correct copy of the foregoingBrief of Amicus Curiae ALM Media, Inc. et aL. in Support of Appellees RandiRhodes and Piquant, LLC was served via electronic mail and overnight courierupon all counsel of record in accordance with the FEDERAL RULES OF APPELLATE

PROCEDUR as follows:

ATTORNEYS FOR PLAINTIFFS-APPELLANTSJoseph William Koegel, Jr.John Frederick O'Connor, Jr.Frank Hastings Griffin, IVSteptoe & Johnson, LLP1330 Connecticut Avenue, NWWashington, DC 20036

ATTORNEYS FOR DEFENDANT-APPELLEESLaura R. HandmanDavid M. ShapiroDavis, Wright, & Tremaine, LLP1919 Pennsylvania Avenue, NWWashington, DC 20006

Dated: June 6, 2007

27