Florio v. Gallaudet University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN FLORIO, et al.,
Plaintiffs,
v. Case No. 21-cv-01565 (CRC)
GALLAUDET UNIVERSITY, et al.,
Defendants.
MEMORANDUM OPINION
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.
In this suit, four alumni members of Gallaudet’s Kappa Gamma chapter have sued the
University, its Board of Trustees, President Cordano, and the Washington Post for defamation,
focusing on Cordano’s statement that the fraternity was “the face of systemic racism” on campus
and her and the Post’s reference to the salute photograph. The defendants move to dismiss.
Because none of challenged statements concern the individual plaintiffs, and others are also
either non-actionable statements of opinion or concededly true, the Court will grant the motion
and dismiss the case.
I. Background
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. Am. Compl. ¶¶ 5, 22, ECF No. 23.
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. Id. ¶¶ 70, 222–23, 240–41, 255–56, 269.
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. See
Am. Compl. ¶¶ 103–05. 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. Id. ¶ 71. 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.” Id. ¶ 74. While the Bellamy salute was used in America during the Pledge of
Allegiance beginning in 1892, id. ¶ 73, the federal government enacted a law during World
War II that “replaced [it] with the hand over heart” gesture used during the Pledge today. Id.
¶ 76. Supposedly because the Bellamy salute was not explicitly declared a symbol of Nazism,
Kappa Gamma continued to perform the salute until the early 1990s. Id. ¶¶ 78–80, 83.
Enter the photograph from the late 1980s, depicting 34 Kappa Gamma members
2
performing the Bellamy salute. 1 Am. Compl. ¶¶ 146–47, 151, 241; Pls. Opp’n-Gallaudet Mot.
Dismiss Am. Compl. Ex. B (salute photograph), ECF No. 33-2. Plaintiffs Costello and Millios
appear in the photo. Am. Compl. ¶¶ 146–47, 151, 241. Florio and Mallach, who were not in the
fraternity at the time, do not. See id. ¶¶ 223, 226, 269; Pls. Opp’n-Gallaudet Mot. Dismiss Am.
Compl. at 3, ECF No. 33 (Corrected Version). The photograph first emerged on social media in
2016. Am. Compl. ¶¶ 173–76. 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.” Id. ¶ 175 (emphasis in complaint omitted).
Notwithstanding the fraternity’s official comments, the photograph reappeared on social
media four years later. Am. Compl. ¶ 188. The timing coincided with the death of George Floyd
in May 2020 and the resulting nationwide protests for racial justice. Id. ¶ 112. As the amended
complaint acknowledges, those events brought “the problem of systemic racism . . . to the
forefront of the American psyche.” Id. 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. See id. ¶ 170. That ban stemmed from concerns expressed by Gallaudet’s
student body government that the robes resembled “those used by hate groups.” Gallaudet Ex. 2
(2015 Robes Ban Announcement), ECF No. 25-2; see Am. Compl. ¶¶ 95–99. The “new
evidence” regarding Kappa Gamma’s reintroduction of the robes prompted an investigation,
1
The Washington Post’s article dated the photograph from 1988, see Wash. Post Ex. F
(online article), ECF No. 26-7; id. Ex. G (print article), ECF No. 26-8; however, the amended
complaint alleges it was taken in 1989. Am. Compl. ¶ 145. Assuming plaintiff Millios is in the
photo, 1989 would make more sense because he was not a Kappa Gamma member until that
year. Id. ¶ 256; Pls. Opp’n-Gallaudet Mot. Dismiss Am. Compl. at 3, ECF No. 33 (Corrected
Version) (clarifying that Millios, and not Mallach, is in the photograph at issue).
3
which concluded that the fraternity violated the ban and resulted in the chapter’s suspension from
campus. See Am. Compl. ¶ 170. 2 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. Id. ¶ 124.
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.
Am. Compl. ¶ 126. 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.” Id. ¶ 125 & n.2; id. ¶ 127–29. The alleged
implication is that the fraternity members in the salute photograph, including plaintiffs Costello
and Millios, are the “faces of racism.” Id. ¶ 129. President Cordano, the complaint continues,
also did “her version of a Bellamy salute” that gave “the appearance [of] a Nazi salute.” Id.
¶ 130. The complaint does not allege that either she or the University published the salute
2
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.” See Wash. Post Exs. F & G. 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.” Am. Compl. ¶ 135; id. ¶¶ 120, 178.
4
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.” Wash. Post Ex. F, ECF No.
26-7 (online article); Am. Compl. ¶¶ 150, 240. 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.”
Wash. Post Ex. F; Am. Compl. ¶¶ 144–46, 153. The article also quoted President Cordano’s
ASL address, including her statement that Kappa Gamma had become the “face of systemic
racism” on campus. Wash. Post Ex. F; Am. Compl. ¶ 143. No version of the article includes
any picture of or link to the salute photograph, nor did the article mention the plaintiffs.
A year later, a group of ten plaintiffs filed this lawsuit, asserting only defamation claims
against Gallaudet University, its Board of Trustees, President Cordano, and the Post. See
Compl., ECF No. 1. Six of the original group of plaintiffs have since voluntarily dismissed their
claims, ECF Nos. 5 & 6, leaving Florio, Costello, Millios, and Mallach. The remaining plaintiffs
allege that, because of President Cordano’s statements and the Post’s subsequent reporting, they
were fired from their jobs and have suffered other monetary, emotional, and reputational
harms—particularly in the Deaf community. See generally Am. Compl. ¶¶ 221–320. After the
defendants filed initial motions to dismiss, the plaintiffs (with the defendants’ consent) filed an
amended complaint. See Am. Compl., ECF No. 23. The amended complaint adds claims for
defamation, defamation by implication, and false light. The defendants’ fresh motions to dismiss
5
that complaint are ripe for decision.
II. Legal Standards
The defendants have moved to dismiss the amended complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). “To survive a motion to dismiss [under
12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A court “must treat the complaint’s factual allegations as
true and must grant plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (cleaned up).
As to the Post’s motion, it is worth noting that in a defamation case, even “at this stage,
the article . . . speaks for itself.” Croce v. N.Y. Times Co., 930 F.3d 787, 792 (6th Cir. 2019).
And the article, President Cordano’s statements, the accompanying transcript, and the salute
photograph “are referred to in the complaint and are integral to [the plaintiffs’] claim[s].”
Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). The Court may therefore consider these
materials, which the parties also attach as exhibits to their motion papers. See id.Because the Court is sitting in diversity, it applies the law of the forum, the District of
Columbia. See Steorts v. Am. Airlines, Inc., 647 F.2d 194, 196–97 (D.C. Cir. 1981). It
therefore must defer “to the published opinions of the D.C. Court of Appeals,” though “of
course, district courts also remain bound by the decisions of the D.C. Circuit.” Deripaska v.
Associated Press, Civ. A. No. 17-00913 (ESH), 2017 WL 8896059, at *1 (D.D.C. Oct. 17, 2017)
(citations omitted).
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III. Analysis
The plaintiffs bring three claims—defamation, defamation by implication, and false
light—but the analysis here is materially the same for each.
A defamation claim under D.C. law requires allegations:
(1) that the defendant made a false and defamatory statement concerning the
plaintiff; (2) that the defendant published the statement without privilege to a third
party; (3) that the defendant’s fault in publishing the statement amounted to at
least negligence; and (4) either that the statement was actionable as a matter of
law irrespective of special harm or that its publication caused the plaintiff special
harm.
Close It! Title Servs., Inc. v. Nadel, 248 A.3d 132, 139 (D.C. 2021). Because “[d]efamation by
implication” is “an area of law ‘fraught with subtle complexities,’” plaintiffs must make an
“especially rigorous showing,” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C.
2000) (citation omitted), in addition to the elements of defamation, that “the defendant intends or
endorses the defamatory inference.” Armstrong v. Thompson, 80 A.3d 177, 183–84 (D.C. 2013)
(quoting White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990)). And where, as
here, “the plaintiff rests both his defamation and false light claims on the same allegations . . . the
claims will be analyzed in the same manner.” Close It!, 248 A.3d at 140 (omission in original)
(quoting Blodgett v. Univ. Club, 930 A.2d 210, 222–23 (D.C. 2007)).
The Court will begin with the primary impediment to the plaintiffs’ claims—the first,
“concerning the plaintiffs” element. It will then explain additional grounds warranting dismissal
with respect to certain challenged statements.
A. None of the Challenged Statements Are “Concerning” the Plaintiffs
“Defamation is personal; allegations of defamation by an organization and its members
are not interchangeable.” Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1089 (D.C. Cir. 2007)
(cleaned up). “[S]tatements which refer to an organization do not implicate its members.” Id.
7
(citation omitted). “This principle” may not be “absolute,” but it is largely dispositive in this
case. See id.
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.” See Alexis v. District of Columbia, 77 F. Supp. 2d 35, 40 (D.D.C. 1999).
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.” Id. at 41. These “rules of thumb have been
followed in this Circuit” and easily dispose of Florio’s and Mallach’s claims. See id.The plaintiffs concede that the fraternity “numerically is not a small group.” See Am.
Compl. ¶¶ 219–20. 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. See Close It!, 248 A.3d at 139–140. 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. See Alexis, 77 F. Supp. 2d at 40 (quoting
Restatement (Second) of Torts § 564A (1977)) (emphasis added in Alexis). Florio’s and
Mallach’s claims thus fail the threshold element of defamation. This problem cannot be fixed, so
the Court will dismiss their claims with prejudice.
The plaintiffs themselves recognize that D.C. case law “support[s]” this application of the
group-defamation doctrine. See Pls. Opp’n-Gallaudet at 14. In Fowler v. Curtis Publishing Co.,
8
182 F.2d 377 (D.C. Cir. 1950), for instance, the D.C. Circuit held that individual plaintiffs could
not sue for defamatory comments directed at a group of 59 “taxicab drivers as a group.” Id. at
378. The group in Service Parking Corp. v. Washington Times Co., 92 F.2d 502 (D.C. Cir.
1937) was even smaller—“ten or twelve” parking lot owners in downtown D.C. Id. at 503.
Affirming a directed verdict for the defendant newspaper, the Circuit reasoned that “no language
referr[ed] ‘to some ascertained or ascertainable person[,]’ [n]or is the downtown class [of
parking lot owners] so small . . . as to cause defamation” of the individual owner plaintiff. Id. at
506; see also Steorts, 647 F.2d at 196 (“Prior to 1971, the federal courts in the District of
Columbia were authoritative expositors of local . . . law”). 3
Unlike Florio and Mallach, Costello and Millios were among the 34 Kappa Gamma
members in the salute photograph. See Pls. Opp’n-Gallaudet Ex. B (salute photograph). That
figure comes much closer to a sufficiently small group to trigger the small-group exception to the
group-defamation doctrine. Alexis, on which the defendants heavily rely, noted that the cases
“do not establish a ‘bright line’” rule, though “unnamed group members generally are not
permitted to sue for group defamation if the group has more than 25 members.” 77 F. Supp. 2d
at 41 (emphasis added). To be sure, Service Parking involved a much smaller group, 92 F.2d at
503, 506 (ten or twelve), and the D.C. Circuit affirmed a directed verdict even though “someone
reading the newspaper article there readily could have found out the identities of the few
parking-lot owners the article disparaged.” See Alexis, 77 F. Supp. 2d at 43. But it is not clear
3
The plaintiffs’ reliance on factors considered by courts outside this jurisdiction in
applying the group-defamation doctrine is misplaced. See Pls. Opp’n-Gallaudet at 14–16 (citing
New York and Oklahoma cases instructing courts to consider, for example, “the prominence of
the group and its individual members”). This Court obviously is bound by D.C. law. But even if
factors like “the prominence” of any individual plaintiff were relevant, the complaint’s
allegations that each individual plaintiff “is Kappa Gamma” are wholly speculative and
conclusory. See Am. Compl. ¶¶ 225, 243, 257, 270 (emphasis added); id. ¶ 21.
9
how that case would have come out if there was “language referring ‘to some ascertained or
ascertainable person,’” Service Parking, 92 F.2d at 506 (citation omitted), or “evidence that the
statement about the group had some particular application to the unnamed individual.” Alexis,
77 F. Supp. 2d at 40.
This Court is hesitant to rest its ruling as to Costello and Millios on the proposition that,
as a matter of law, 34 members is always too big of a group for unnamed individuals to sue for
defamation in D.C. While the thrust of Service Parking suggests that 34 members may well be
too large—if twelve members are too many, a fortiori 34 would be—the defendants have cited
no local precedent that concretely establishes an absolute, per se numerical line beyond which
unnamed group members are foreclosed from suing for defamation. And this Court has not
located any such bright-line rule. Putting the size of the group aside, the underlying question
remains whether the plaintiffs have alleged that the challenged statements “concerned” them—
“that is, that a ‘reasonable listener’” or reader “could think that [the defendants were] referring to
[the plaintiffs] even though” President Cordano and the Post’s article “never named [them].”
See Browning v. Clinton, 292 F.3d 235, 247 (D.C. Cir. 2002). They have not.
No “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. See Browning, 292 F.3d at 248 (affirming grant of motion to
dismiss as to defamation and false light claims). Reading the challenged “statements in context,”
Close It!, 248 A.3d at 139–40, 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. Am. Compl. ¶ 189(a), (d), (e), (f), (k), (l); id. ¶¶ 125–26. Although the
10
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.” See id. ¶¶ 125–26; cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 288–89 (1964)
(rejecting argument that the word “They” could be reasonably read to refer to the individual
plaintiff). Moreover, these statements are followed by mentions of reviews of “other
organizations” and “fraternities and sororities at Gallaudet” generally. Am. Compl. ¶ 126.
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. See Browning, 292
F.3d at 247–48. 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. Thus, Costello’s and
Millios’s claims also fail the first element of defamation.
A final note on the purported “significant variations” between President Cordano’s actual
use of sign language and the transcript of her ASL address. See Am. Compl. ¶ 125 n.2; id.
¶ 128. 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.” Id. ¶ 125 & n.2; id. ¶¶ 127–29. While the Court
accepts that “facial expressions and bodily gestures are highly relevant” for understanding ASL,
11
id. ¶ 125 n.2, 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.
B. Other Grounds Warranting Dismissal
Two other grounds warrant dismissal of the plaintiffs’ claims. First, President Cordano’s
“face of systemic racism” remark constitutes non-actionable opinion. Second, as the plaintiffs
concede, the Bellamy salute bears similarities to the salute adopted by the Nazis, so the salute-
related statements are substantially true.
To begin, the main statement at issue is President Cordano’s remark that Kappa Gamma
has “become the face of systemic racism in our community, with photographs of the salute and
use of robes being shared on social media.” Am. Compl. ¶ 126. The Post article repeats this
quote, accurately attributing it to President Cordano. See Wash. Post Exs. F & G.
“Whether [the defendants] made statements of ‘fact’ or of ‘opinion’ is a question of law
for the court.” Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204, 1210 (D.C. 1991). In making
that determination, the D.C. Court of Appeals has directed courts to:
(1) “examine the allegedly defamatory words in the context of the entire
document in which they appear”; (2) determine whether the statements “could be
said to imply undisclosed defamatory facts”; (3) “consider whether the allegedly
defamatory words are susceptible to proof of their truth or falsity”; and
(4) “consider the context in which the document containing the allegedly
defamatory reference is published.”
Id. (quoting Myers v. Plan Takoma, Inc., 472 A.2d 44, 47 (D.C. 1983) (per curiam)). Under the
Supreme Court’s decision in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), “statements of
12
opinion can be actionable if they imply a provably false fact, or rely upon stated facts that are
provably false.” Guilford, 760 A.2d at 597 (citation omitted). But “if it is plain that a speaker is
expressing a subjective view, an interpretation, a theory, conjecture, or surmise, . . . the statement
is not actionable.” Id. (citation omitted).
President Cordano’s “face of systemic racism” statement is an opinion; it is her
“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. See Milkovich, 497 U.S. at 20; Farah v. Esquire Mag., 736 F.3d
528, 539 (D.C. Cir. 2013) (“comments” that used “strong rhetoric and salty language” were non-
actionable).
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.” Farah, 736 F.3d at 539
(quoting Moldea v. N.Y. Times Co. (“Moldea I”), 15 F.3d 1137, 1144–45 (D.C. Cir. 1994)).
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.” Id. So too here. 4
4
The closest potential implication of “undisclosed defamatory facts” that would render
this statement actionable, Sigal Constr., 586 A.2d at 1211, is President Cordano’s reference to
“new information that led to renewed demands for change with Kappa Gamma.” Am. Compl.
¶¶ 125–26 (emphasis added). But again, the “new information” relates to “renewed demands for
change with Kappa Gamma” as a whole, not any individual plaintiff. Id. (emphasis added).
Also, the “new information” seemingly includes the salute photograph’s recent circulation—
which, as mentioned, is a true fact—and/or the use of the robes. The use of the robes is a recent
controversy concerning current Kappa Gamma members—again, unrelated to the individual
13
Numerous other courts have found similar commentary on racism or bigotry to be non-
actionable opinion. See, e.g., McCaskill v. Gallaudet Univ., 36 F. Supp. 3d 145, 158–60 (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., No. 20 Civ. 222
(KPF), 2020 WL 7405261, at *9 (S.D.N.Y. Dec. 16, 2020) (holding that the “characterization of
some individuals . . . as ‘white nationalists’ is . . . non-actionable opinion commentary”); Smith
v. Sch. Dist. of Phila., 112 F. Supp. 2d 417, 429 (E.D. Pa. 2000) (statements that plaintiff was
“racist and anti-Semitic” were “non-fact based rhetoric”); Skidmore v. Gilbert, No. 20-cv-06415,
2022 WL 464177, at *9 (N.D. Cal. Feb. 15, 2022) (collecting cases from “multiple courts”
holding “that a term like ‘racist’ . . . is not actionable under defamation-type claims.”), appeal
docketed, No. 22-15394 (9th Cir. Mar. 16, 2022); Ward v. Zelikovsky, 643 A.2d 972, 980 (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.
Next, the Court will address two other challenged statements that appear in the Post
article that both do not concern the plaintiffs and are not actionable on additional grounds. The
first is the article’s opening line: “Gallaudet University’s oldest fraternity has been suspended
from campus after members were identified wearing prohibited ceremonial robes that resemble
Ku Klux Klan garb, officials said”; the second is the description of the salute photograph as
plaintiffs. And the “new information” statement is not in the Post article, so it is irrelevant to the
Post’s motion.
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showing former fraternity members “performing an apparent Nazi salute.” See Wash. Post Exs.
F & G. Words like “resemble” and “apparent,” while accurately reporting statements made by
University officials and attributing those statements to them, id., “qualify as language of
‘apparency,’” which militates in favor of treating these statements as opinion. See Ollman v.
Evans, 750 F.2d 970, 985–86 n.31 (D.C. Cir. 1984) (en banc); Bauman v. Butowsky, 377 F.
Supp. 3d 1, 11 (D.D.C. 2019) (same for “cautionary language”).
Moreover, the complaint concedes that the “apparent Nazi salute” statement is
substantially true, which defeats any claim of defamation. See Armstrong, 80 A.3d at 183–84
(“[S]ubstantial truth” is “a defense to defamation.”). 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. Am. Compl. ¶ 74; id. ¶ 130
(alleging that President Cordano’s “version of [the] Bellamy salute” gave “the appearance [of] a
Nazi salute.”). 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. The plaintiffs’ admission thus provides another ground for dismissal. 5
* * *
The plaintiffs’ claims rest on President Cordano’s address on the suspension of Kappa
Gamma and the Post article. Assessing those statements, the Court concludes that they do not
5
Similar logic may well apply to the plaintiffs’ allegations on the robes, but the Court
does not reach that issue at the motion to dismiss stage. The amended complaint acknowledges
that “Kappa Gamma supported, accepted and respected” the ban on robes, Am. Compl. ¶ 100,
which was based on the robes’ similarity “to those used by hate groups,” Gallaudet Ex. 2, such
that their use was viewed as “no longer acceptable.” See Am. Compl. ¶¶ 97–100. But, unlike
with the salute, the plaintiffs do not make as clear of a concession on the robes’ similarity to
those worn by hate groups. Accordingly, the Court cannot say at this stage whether statements
about the robes are substantially true. The core problem on the statements concerning the robes
is, again, that they do not concern the plaintiffs individually.
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concern the plaintiffs, and certain other statements that are the focus of the plaintiffs’ challenge
suffer from additional legal defects that cannot be corrected. “Therefore, dismissal with
prejudice is appropriate.” See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1340 (D.C.
Cir. 2015) (affirming dismissal with prejudice of a complaint that “relie[d] exclusively on two
questions in one article” that the court held were not “false and defamatory statements under
D.C. law.”).
IV. Conclusion
For these reasons, the Court will grant the motions to dismiss and dismiss this case with
prejudice. A separate Order accompanies this opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: July 15, 2022
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