The Volokh Conspiracy

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Free Speech

Dismissal of Libel Lawsuit Over Gallaudet U's Allegation that Frat Has "Become the Face of Systemic Racism"

The lawsuit, which stems from statements about the fraternity’s use of a salute that looks similar to a Nazi salute and robes that some viewed as similar to Klan robes was rejected chiefly on the grounds that the statement was about the fraternity not the plaintiff, and was in any event opinion.


From Florio v. Gallaudet Univ., decided Friday by Judge Christopher Cooper (D.D.C.):

Two summers ago, Gallaudet University President Roberta Cordano suspended the school's chapter of the Kappa Gamma fraternity for violating a University policy banning the use of ceremonial hooded robes resembling those worn by some hate groups. Around the same time, a decades-old photograph resurfaced depicting a group of 34 chapter members performing something akin to a Nazi salute.

Announcing the suspension—which coincided with the nationwide protests over the death of George Floyd—President Cordano remarked that Kappa Gamma had "become the face of systemic racism in our community, with photographs of the salute and use of robes being shared on social media." Cordano did not display any photos or mention any fraternity member by name. The Washington Post later reported on the suspension, quoting Cordano's comments. It, too, did not publish any photograph or name any individual Kappa Gamma member….

Chartered in 1864, Gallaudet University has a storied history as the oldest college in the United States for students who are deaf and hard of hearing. The four plaintiffs in this case are Gallaudet alumni Steven Florio, Patrick Costello, William Millios, and Timothy Mallach. All graduated between 1989 and 1992 and were members of Kappa Gamma, the University's oldest fraternity.

The plaintiffs stress that the fraternity has "stringent criteria for membership," including a minimum GPA and leadership requirements, and is highly regarded in the Deaf community.

Yet it has also come under controversy. Not unusual for fraternities, says the complaint, Kappa Gamma has certain traditions that include a salute and the donning of robes. The plaintiffs acknowledge that the fraternity's former salute, known as the "Bellamy salute," "ha[s] some similarities in appearance" to that used by "Italian Fascist[s] and German Nazis."  While the Bellamy salute was used in America during the Pledge of Allegiance beginning in 1892,  the federal government enacted a law during World War II that "replaced [it] with the hand over heart" gesture used during the Pledge today. Supposedly because the Bellamy salute was not explicitly declared a symbol of Nazism, Kappa Gamma continued to perform the salute until the early 1990s.

Enter the photograph from the late 1980s, depicting 34 Kappa Gamma members performing the Bellamy salute. Plaintiffs Costello and Millios appear in the photo. Florio and Mallach, who were not in the fraternity at the time, do not. The photograph first emerged on social media in 2016. When it surfaced, Kappa Gamma responded that "[t]he gestures shown are denounced, not practiced, nor accepted in any form by any recent or current administration. These pictures go against our present-day standards of conduct for our members, pledges, and alumni."

Notwithstanding the fraternity's official comments, the photograph reappeared on social media four years later. The timing coincided with the death of George Floyd in May 2020 and the resulting nationwide protests for racial justice. As the amended complaint acknowledges, those events brought "the problem of systemic racism … to the forefront of the American psyche." Also around the same time, information emerged regarding Kappa Gamma's apparent intent to bring back the ceremonial hooded robes that had been banned in 2015. That ban stemmed from concerns expressed by Gallaudet's student body government that the robes resembled "those used by hate groups." The "new evidence" regarding Kappa Gamma's reintroduction of the robes prompted an investigation, which concluded that the fraternity violated the ban and resulted in the chapter's suspension from campus. All these events led to Gallaudet President Roberta Cordano's June 9, 2020 address on the suspension, which she delivered using American Sign Language (ASL) on Gallaudet's YouTube channel.

Four fraternity alumni sued Gallaudet (and some of its officials) and the Washington Post for libel, but the court rejected that. First, the court concluded that the statements about the fraternity weren't "of and concerning" the particular plaintiffs (which is one element that defamation plaintiffs must prove).

The plaintiffs mainly take offense with the following portion of President Cordano's remarks. Per the transcript of her ASL address, she said that she:

became aware of new information that led to renewed demands for change with Kappa Gamma, a fraternity with a long history at Gallaudet. They have become the face of systemic racism in our community, with photographs of the salute and use of robes being shared on social media. This behavior is unacceptable.

Gallaudet has now taken action to suspend Kappa Gamma on campus. We are in the process of reviewing other organizations and the status of their histories and their efforts to determine if further steps will need to be taken. As President, I am convening diverse leaders on campus to develop a plan to review and understand the role of fraternities and sororities at Gallaudet.

The plaintiffs allege, however, that there is a key difference in the actual ASL version of the address. They say Cordano signed, in relevant part, "Kappa Gamma, pictures being distributed on social media of their use of hooded robes and of the salute, they have become the face of systemic racism." The alleged implication is that the fraternity members in the salute photograph, including plaintiffs Costello and Millios, are the "faces of racism."  President Cordano, the complaint continues, also did "her version of a Bellamy salute" that gave "the appearance [of] a Nazi salute." The complaint does not allege that either she or the University published the salute photograph, or that she named the plaintiffs, or any particular Kappa Gamma member or alumni, in her address.

On June 12, 2020, the Washington Post published an article with the headline, "Gallaudet University suspends fraternity after anti-Semitic photo resurfaces." The article recounts the controversy over the robes, before turning to the salute photograph. "That photo," the Post reported, "shows former members, including a current member of the school's board of trustees, performing an apparent Nazi salute. Th[is] older photo resurfaced around the same time members were caught wearing the robes. School officials denounced the salute but said it was not a factor in the suspension." The article also quoted President Cordano's ASL address, including her statement that Kappa Gamma had become the "face of systemic racism" on campus. No version of the article includes any picture of or link to the salute photograph, nor did the article mention the plaintiffs.

{The Post article reported that President Cordano and University officials said that Kappa Gamma "members were identified wearing the prohibited ceremonial robes," apparently from other "recent photos posted on social media"; the article later adds that "members were caught wearing the robes." But the complaint does not provide this detail. It instead asserts on "information and belief" that "there were in fact no new or recent photographs of current active or alumni members of Kappa Gamma wearing robes being shared on social media as of June 5, 2020."} …

"Defamation is personal; allegations of defamation by an organization and its members are not interchangeable." "[S]tatements which refer to an organization do not implicate its members." "This principle" may not be "absolute," but it is largely dispositive in this case.

Starting with plaintiffs Florio and Mallach, neither is named in any of the challenged statements, nor do they appear in the salute photograph referenced in some of the statements. The statements mention only Kappa Gamma as a whole. This implicates "the 'group defamation' doctrine." Across various jurisdictions, including the District, courts have "narrowly construed" a "small- group exception" to generally require "no more than 20 or 30 members [] before they will hold that defamation of the group should be deemed to have particular application to a group member who is not named in the defamatory remarks." These "rules of thumb have been followed in this Circuit" and easily dispose of Florio's and Mallach's claims.

The plaintiffs concede that the fraternity "numerically is not a small group." This makes sense—given its long history, Kappa Gamma surely has hundreds (if not thousands) of living alumni. Plainly, then, none of the challenged statements are "of and concerning" Florio or Mallach individually. Their sole connection to the statements is that they were in Kappa Gamma; that does not "reasonably give rise to the conclusion that" the statements about the larger group make "particular reference" to them as former student members. Florio's and Mallach's claims thus fail the threshold element of defamation….

Unlike Florio and Mallach, Costello and Millios were among the 34 Kappa Gamma members in the salute photograph. That figure comes much closer to a sufficiently small group to trigger the small-group exception to the group-defamation doctrine…. Putting the size of the group aside, … [n]o "reasonable listener" or reader "could conclude that the statement[s] referred to each member" in the salute photograph "or 'solely or especially' to" any individual in the photo, including Costello or Millios. Reading the challenged "statements in context," President Cordano's address and the Post's article were about the suspension of Kappa Gamma generally, which in turn was based on "new information" and the controversy regarding the recent reappearance of the banned robes apparently worn by current student members. Although the decades-old salute photograph is mentioned, that reference appears right alongside other references to "Kappa Gamma" as a group, the use of the robes—which involves additional (apparently current) student members, thus adding to the overall size of the group—and the word "they." …

In sum, the challenged statements are about Gallaudet's Kappa Gamma chapter as a whole, not about any one member. The crux of the plaintiffs' complaint is that because the whole of Kappa Gamma was disparaged, even though no member current or former was mentioned, they themselves have a personal claim sounding in defamation. But again, "no reasonable person would be able to infer that [the defendants were] accusing [Costello and Millios] of" being the face of systemic racism in the Gallaudet community. Indeed, no reasonable person could conclude that any of the challenged statements—in President Cordano's comments or in the Post's article—are about any of the plaintiffs as opposed to the broader fraternity chapter to which they belong….

A final note on the purported "significant variations" between President Cordano's actual use of sign language and the transcript of her ASL address. To refresh, the plaintiffs allege that what Cordano actually signed was different than the transcript of her remarks; the suggestion is that she directly signed that the fraternity members in the photograph are the "faces of racism." While the Court accepts that "facial expressions and bodily gestures are highly relevant" for understanding ASL, and the plaintiffs' formulation of Cordano's message is slightly different than the transcript, the analysis under the group-defamation doctrine does not yield a different result. This version of the message still references both the hooded robes and the salute, thus increasing the size of the group, and the full context of the statements, noted above, is the same. It cannot be interpreted as specifically referring to a particular individual. But even if it could, for the reasons the Court will explain next, the plaintiffs still fail to state a claim….

The court also concluded that the "face of systemic racism" statement was "non-actionable opinion":

[I]t is [President Cordano's] "subjective view" or "interpretation" of the fallout from the reappearance of the salute photo on social media and the controversy over the robes. The phrase "face of" connotes an inherently subjective assessment and is the sort of "imaginative expression" and "rhetorical hyperbole" that typifies non-actionable opinion.

Yes, there are facts undergirding this opinion—that the salute photo was circulated and depicts Kappa Gamma members—but they are undisputed. "[W]hen," as here, a speaker "gives a statement of opinion that is based upon true facts that are revealed to readers or which are already known to readers, such opinions generally are not actionable." That is because "the reader understands" such opinions as the speaker's "interpretation of the facts presented," so "the reader is free to draw his or her own conclusions." So too here.

Numerous other courts have found similar commentary on racism or bigotry to be non- actionable opinion. See, e.g., McCaskill v. Gallaudet Univ. (D.D.C. 2014) ("[N]o decision has found statements claiming that a person is anti-gay or homophobic to be actionable defamation.") (collecting cases); Brimelow v. N.Y. Times Co. (S.D.N.Y. 2020) (holding that the "characterization of some individuals … as 'white nationalists' is … non-actionable opinion commentary"); Smith v. Sch. Dist. of Phila. (E.D. Pa. 2000) (statements that plaintiff was "racist and anti-Semitic" were "non-fact based rhetoric"); Skidmore v. Gilbert (N.D. Cal. 2022) (collecting cases from "multiple courts" holding "that a term like 'racist' … is not actionable under defamation-type claims."), appeal docketed (9th Cir. 2022); Ward v. Zelikovsky (N.J. 1994) ("Most courts that have considered whether allegations of racism, ethnic hatred or bigotry are defamatory have concluded for a variety of reasons that they are not."). If statements that someone is a racist are susceptible to multiple meanings and different interpretations such that they are non-actionable opinion, then the phrase "face of systemic racism," as used by President Cordano and quoted by the Post, fits even more squarely into that category.

The court added:

Moreover, the complaint concedes that the "apparent Nazi salute" statement is substantially true, which defeats any claim of defamation [based on that statement]. Specifically, the plaintiffs acknowledge that the salute adopted by Fascists and Nazis in the 1920s and 1930s "ha[s] some similarities in appearance to the Bellamy salute" performed by Kappa Gamma. There is no material difference between that conceded description and The Post calling the salute an "apparent Nazi salute." The statements do not say that the salute was an actual Nazi salute.

You can see photos of the salute and the robes (which were apparently generally blue or brown), which I'm avoiding reproducing directly for copyright reasons. You can also see more on the Bellamy salute here.