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06-2140

In the Court of Appeals For the Fourth... Circuit CACI PREMIR TECHNOLOGY, INC., and CACI INTERNATIONAL INC., Plaintif-Appellants v.

RAI RHODES and PIQUANT, LLC d//a Air America Radio,

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 , COX

ENTERPRISES, INC., & COMPANY, INC., CO., INC., THE CORPORATION, LANDMAR COMMUNICATIONS, INC., PUBLISHERS OF AMERICA, INC., NBC UNIVRSAL, INC., THE TIMES

COMPAN, ASSOCIATION OF AMRICA, , INC., THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, THE REPORTERS COMMITTEE FOR , TIME INC., and , IN SUPPORT OF APPELLEES

Jack M. Weiss Theodore B. Olson Joshua Wilkenfe1d Theodore J. Boutrous, Jr. Laura M. Leitner GIBSON, DUN & CRUTCHER LLP GIBSON, DUN & CRUTCHER LLP Attorneysfor Amici Curiae Attorneys for Amici Curiae 1050 Avenue N.W. 200 Park Avenue Washington, DC 20036 New York, New York 10166 (202) 955-8500 (212) 351-4000 OF COUNSEL:

NBC UNIVERSAL, INC. ALM MEDIA, INC. Craig Bloom Allison C. Hoffman 30 Rockefeller Plaza Fabio B. Bertoni New York, NY 10112 345 Park Avenue South New York, NY 10010 COMPANY David E. McGraw THE ASSOCIATED PRESS David H. Tomlin New York, NY 10036 450 W. 33rd Street New York, NY 10001 NEWSPAPER ASSOCIA nON OF AMERICA René P. Milam Cox ENTERPRISES, INC. 4401 Boulevard, Suite 900 Andrew Merdek Arlington, Virginia 22203 Dale Cohen 6205 Peachtree Dunwoody Road NEWSWEEK, INC. , Georgia 30328 Stephen Fuzesi, Jr 251 West 57th Street Dow JONES & COMPANY, INC. New York, NY 10019 Stuart D. Karle THE RADIO-TELEVISION NEWS DIRECTORS New York, NY 10281 ASSOCIA TION Kathleen A. Kirby GANNETT CO.., INC. Wiley Rein LLP Barbara W. Wall 1776 K Street, N.W. Mark E. Faris Washington, DC 20006 7950 Jobes Branc McLean, VA 22107 THE REpORTERS COMMITTEE FOR FREEDOM OF THE PRESS THE HEARST CORPORATION Lucy A. Dalglish Eve B. Burton Gregg P. Leslie Jonathan R. Donnellan 1101 Wilson Blvd., Suite 1100 300 West 57th Street, 40th Floor Arlington, Virginia 22209 New York, NY 10019 TIME INC. LANDMARK COMMUNICATIONS, INC. Robin Bierstedt Guy R. Friddell, III 1271 Avenue of the Americas 150 W. Brambleton Avenue New York, NY 10020 Norfolk, VA 23510 THE WASHINGTON POST MAGAZINE PUBLISHERS OF AMERICA, INC. Mary An Werner Chrstopher J. Nolan Eric Lieberman 810 Seventh Avenue J ames McLaughlin New York, NY 10019 1150 15th Street, NW Washington, DC 20071

11 CORPORATE DISCLOSUR STATEMENT

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

for Amici Curiae certify :

1. ALM Media, Inc. ("ALM") is a privately-held corporation. ALM publishes 33 national and regional and , 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 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 . Dow Jones has no parent

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

Jones publishes The Journal, a daily newspaper with a national

circulation of over 2 million each 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 . 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

, 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-, 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 , 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 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 ("") publishes The New

York Times, The International Herald Tribune, , 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 . NAA members account for nearly 90 percent of the daily 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. , 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, , 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. Olson GIBSON, DUN & CRUTCHER LLP 1050 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 Such Reports Are Inherently Ambiguous...... i 0

A. The Actual Malice Standard-Crafted to Guarantee Informed Public Debate-Must be Applied So as to Afford Broad Protection to Commentary Critical of

Government on Matters of National Security...... 11

B. Faithful Application of the Actual Malice Standard is Particularly Essential When Challenged Commentary or Reporting Involves National Security and the Competency of Government...... 12

C. The Actual Malice Standard Precludes Liability for Commentary on Apparently Reliable Third Part Reports...... 15

D. The Actual Malice Standard Immunizes Reasonable

Interpretations of Reports That "Bristle With Ambiguity" ...... 19

E. In the Context of Implied Libel, a Libel Plaintiff Must Prove that the Defendant Intended the Defamatory Implication and that the Defendant Published the Defamatory Implication with Actual Malice ...... 21

CONCLUSION...... 25

11 TABLE OF AUTHORITIES Page Cases

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. , 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 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. , 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 of Freedom of the Press", in Freeing the Presses: The First Amendment In Action 142 (Timothy E. Cook, ed. 2005)...... 5

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

Patrck S. Washburn, A Question of Sedition: The Federal

Government's Investigation of the Black Press During World War II 144 (1986)...... 9 Restatement (Second) of Torts § 611 (1977)...... 18 Roger Streitmatter, Voices of Revolution: The Dissident Press in America 22-23, 26-27 (2001) ...... 9 W. Lance Bennett and William Serrn, The Watchdog Role, in The Press 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" 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 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 sumary judgment rendered in favor of New York Times and incorporating certain of the arguments advanced 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 new media mechanisms have emerged that cultivate direct action beyond monitoring information and expressing opinions. New media ultimately permit citizens to work on their own behalf as effective governent 'watchdogs.'" Diana Owen, "New Media and Contemporary Interpretations of Freedom of the Press", in Freeing the Presses: The First Amendment 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 that distributed reports to newspapers throughout the colonies, offered daily reports decrying the suffering imposed by the British. "Despite the 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 complained of the evils of military rule in Boston. Also, it offered frequent

explanations of how militar occupation of the city violated English law." Wiliam D. Sloan and Julie H. Wiliams, The Early American Press, 1690-1783, 149 (1994).

. The Jeffersonian Republican newspapers that inspired the enactment and enforcement of the notorious Alien and Sedition Acts were unabashedly partisan and vituperative in their criticism of the Adams Administration and the Federalist Congress. Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism 46 (2004). For criticizing the Adams

Administration's spending policies, Thomas Cooper, one of the first commentators prosecuted under the Sedition Act, was charged with "having published a false, scandalous and malicious attack on the character of the President of the United States, with an intent to excite the hatred and contempt of the people of this countr against the man

of their choice." ¡d. at 54-55. These efforts to prosecute diverging opinions were later recognized as perverse: Sullivan described the Sedition Act as "inconsistent with the First Amendment" and noted that "the attack upon its validity has carried the day in the court of history." Sullivan, 376 U.S. at 276.

. William Lloyd Garrson, who published the abolitionist newspaper The Liberator, was jailed for libel for accusing an admitted slave trader of mistreating the slaves under his control. Additionally, various state governents launched attacks on the newspaper, its message, its readers, and its editor. "(T)he city of Georgetown. . . made it ilegal for free blacks to read the paper;" "The Georgia legislature offered a bounty of$5,000 to anyone who kidnapped and brought Garrison before the legislators to answer for his misdeeds;" and "Elected officials in South Carolina offered a reward to any person 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 against extreme racism and racial violence were viewed with suspicion, and even targeted for government prosecution. The Justice Department

8 and the Post Office investigated the black press, finding publications such as New Negro World objectionable "because (they were) 'devoted in the main to an attack upon alleged unjust treatment of Negroes by white.' . .. (Post Office official) Breen noted numerous examples of what he considered seditious material, including the following statement: 'What is meant by Subversive and pro- Axis activities, when a Negro can be arrested for evading the draft and the same Government has no right to interfere with a white civilian in Louisiana who shoots down a Negro after he becomes a soldier? If

the Axis shoots him down, he died in service of his countr, if a Cracker shoots him down no harm is done.'" Patrck S. Washburn, A Question of Sedition: The Federal Government's Investigation of the Black 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 cartoon portaying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in 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 Royal

Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. . .. From the viewpoint of history it is clear that our political discourse would 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 that amounted to "a graphic vendetta against Willam M. 'Boss' Tweed and his corrpt associates in New York City's 'Tweed Ring.'" Hustler, 485 U.S. at 54. In response, Tweed allegedly said, "Stop them damned pictures. I don't care so much what the papers say about me. My constituents can't read. But, damn it, they can see pictures!" Richard A. Fischer, Them Damned Pictues: Explorations in American Political Caroon Ar 2 (1996). Nast's work was instrumental in turing public opinion "because of the emotional impact of its

(Footnote continued on 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 Such Reports 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 conventional maners." 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's suffrage movement. American Political Caroons: An Introduction, available at http://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 and contractors performing functions that would qualify direct governent employees as public offcials).

10 A. The Actual Malice Standard-Crafted to Guarantee Informed Public Debate-Must be Applied So as to Afford Broad Protection to Commentary Critical of Government on 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 he proves that the statement was made. . . with knowledge that it was

false 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 or Reporting Involves National Security and the Competency of 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 in the context of ongoing criminal or court martal investigations, often presents serious uncertainties and severe journalistic obstacles to determining ultimate trth at any given moment in time.

. Perhaps most important, such commentar (as it did in the present case) often goes directly to the competence and performance of government officials charged with responsibility for national securty and 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 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 no individualized reason external to the news report to doubt its accuracy, has not acted recklessly. . . . (R)eliance on reports of reputable news organizations cannot constitute actual malice as a

matter 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 serves First Amendment principles by allowing her the interpretive license that is necessary when relying 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 to compel 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 Defamatory Implication and that the Defendant Published the Defamatory 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 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. Weiss Joshua Wi1kenfeld Laura M. Leitner GIBSON, DUN & CRUTCHER LLP 200 Park Avenue New York, NY 10166 (212) 351-4000 By: 7le ~ Jo 'C O!iO£ Theodore B. Olson Theodore J. Boutrous, Jr. GIBSON, DUN & CRUTCHER LLP 1050 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 in 14- point font.

Dated: June 6, 2007

GIBSON, DUN & CRUTCHER LLP

By: ~tJJÐ~ 'ß OLf~ Theodore B. Olson GIBSON, DUN & CRUTCHER LLP 1050 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 foregoing Brief of Amicus Curiae ALM Media, Inc. et aL. in Support of Appellees Randi Rhodes and Piquant, LLC was served via electronic mail and overnight courier upon all counsel of record in accordance with the FEDERAL RULES OF APPELLATE PROCEDUR as follows:

ATTORNEYS FOR PLAINTIFFS-APPELLANTS Joseph William Koegel, Jr. John Frederick O'Connor, Jr. Frank Hastings Griffin, IV Steptoe & Johnson, LLP 1330 Connecticut Avenue, NW Washington, DC 20036

ATTORNEYS FOR DEFENDANT-APPELLEES Laura R. Handman David M. Shapiro Davis, Wright, & Tremaine, LLP 1919 Pennsylvania Avenue, NW Washington, DC 20006

Dated: June 6, 2007

27