Florio v. Gallaudet University

Citation: Not availableDocket: Civil Action No. 2021-1565

Court: District Court, District of Columbia; July 15, 2022; Federal District Court

Original Court Document: View Document

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Gallaudet University President Roberta Cordano suspended the Kappa Gamma fraternity for violating a policy against ceremonial hooded robes resembling those of hate groups. This decision was influenced by the resurfacing of a decades-old photograph showing fraternity members performing a salute akin to a Nazi salute. Cordano labeled Kappa Gamma as “the face of systemic racism” at Gallaudet, coinciding with nationwide protests following George Floyd's death. In response, four alumni members of the fraternity—Steven Florio, Patrick Costello, William Millios, and Timothy Mallach—filed a defamation lawsuit against the University, its Board of Trustees, Cordano, and the Washington Post, focusing on Cordano's statement and the reference to the salute photograph. The defendants have moved to dismiss the case on grounds that the statements do not concern the individual plaintiffs and that many are either non-actionable opinions or true statements. The court is inclined to grant the motion to dismiss. Gallaudet University, established in 1864, is the oldest institution for deaf and hard of hearing students. The plaintiffs emphasize Kappa Gamma's stringent membership criteria and its good reputation within the Deaf community, despite acknowledging its controversial traditions. The fraternity's former salute, known as the Bellamy salute, has similarities to Nazi gestures, although it was used in the U.S. before World War II. A photograph from the late 1980s shows members performing this salute, and while the fraternity has denounced such gestures in recent years, the image reemerged on social media in 2020 amid racial justice protests.

The amended complaint highlights the emergence of systemic racism in the U.S. following recent events, particularly concerning Kappa Gamma fraternity's intent to reintroduce ceremonial hooded robes banned in 2015 due to their resemblance to attire used by hate groups. An investigation confirmed the fraternity's violation of this ban, resulting in its suspension from Gallaudet University. President Roberta Cordano addressed this suspension in a June 9, 2020, ASL statement, asserting that Kappa Gamma had become synonymous with systemic racism due to social media images of the fraternity's members performing a salute while in robes. 

The plaintiffs argue that Cordano's ASL version of her remarks implied that specific fraternity members, including plaintiffs Costello and Millios, were directly labeled as "faces of racism." They also contend that Cordano's gesture during the speech resembled a Nazi salute. However, the complaint does not assert that Cordano or the University published any photographs or identified the plaintiffs by name. 

Subsequently, a Washington Post article reported on the fraternity's suspension, referencing the controversy surrounding the robes and the salute photograph, which included a current member of the board of trustees performing an apparent Nazi salute. The article included President Cordano's statement but did not feature the salute photograph or mention the plaintiffs. A year later, a group of ten plaintiffs filed a defamation lawsuit against Gallaudet University, its Board of Trustees, President Cordano, and the Washington Post, claiming that the statements led to job losses and significant emotional, monetary, and reputational harm, particularly within the Deaf community. Six plaintiffs have since withdrawn, leaving Florio, Costello, Millios, and Mallach to pursue their claims.

The plaintiffs filed an amended complaint with the defendants' consent, adding claims for defamation, defamation by implication, and false light, following the defendants' initial motions to dismiss. The defendants have subsequently moved to dismiss this amended complaint under Federal Rule of Civil Procedure 12(b)(6), which requires the complaint to contain sufficient factual matter to state a claim that is plausible on its face. The court must accept the factual allegations as true and provide the plaintiffs with the benefit of reasonable inferences. 

In defamation cases, the court considers the article and statements involved, which are integral to the plaintiffs' claims. Since the court is sitting in diversity, it applies the law of the District of Columbia, following its published opinions while adhering to the decisions of the D.C. Circuit. 

The plaintiffs' three claims require similar legal analysis. Under D.C. law, a defamation claim necessitates that the defendant made a false and defamatory statement about the plaintiff, published it to a third party without privilege, acted with at least negligence, and that the statement either caused actionable harm or special harm. Defamation by implication requires a rigorous showing, including proof that the defendant intended or endorsed the defamatory implication.

The court will first address the plaintiffs' failure to demonstrate that the challenged statements are "concerning" the plaintiffs, emphasizing that defamation claims must be personal and cannot be interchanged with claims against an organization and its members.

Statements made regarding an organization do not typically implicate its individual members, a principle that is largely applicable in this case. Plaintiffs Florio and Mallach are not named in the contested statements and do not appear in the referenced photograph, which only discusses Kappa Gamma as a whole. This aligns with the "group defamation" doctrine, which courts have interpreted to limit the ability of unnamed individuals to claim defamation when the group exceeds a certain size—often cited as 20 to 30 members. Kappa Gamma is not considered a small group, with potentially hundreds or thousands of alumni, thus the statements cannot be construed as "of and concerning" Florio or Mallach. Their connection to the statements is solely through their membership in Kappa Gamma, which does not establish a reasonable inference that the statements refer to them individually. Consequently, their defamation claims lack a critical element and must be dismissed with prejudice. The plaintiffs acknowledge that D.C. case law supports this interpretation, as seen in prior cases where individual claims for defamation were rejected based on group size. While Costello and Millios were part of a smaller group depicted in a photograph, and thus might meet the criteria for the small-group exception, the Court remains cautious about establishing a definitive rule regarding the maximum group size for unnamed individuals to sue for defamation in D.C.

Service Parking implies that 34 members may be too many to sustain a defamation claim, especially if 12 members are considered excessive. However, the defendants have not provided any local precedent establishing a specific numerical threshold that would prevent unnamed group members from suing for defamation. The central issue is whether the plaintiffs have demonstrated that the statements in question "concerned" them, meaning a reasonable listener could believe the statements referred to them, despite no names being mentioned. The court finds they have not met this standard; a reasonable listener would not conclude that the statements pertained to each member of the salute photograph or specifically to Costello or Millios. 

The statements by President Cordano and the Post's article focused on the broader Kappa Gamma chapter, particularly regarding its suspension due to new information and the controversy over banned robes worn by current members. Although the salute photograph is referenced, it is within a context discussing Kappa Gamma as a group and includes mentions of other organizations and student groups at Gallaudet. The plaintiffs argue that disparagement of the fraternity as a whole implies personal defamation, but the court concludes that no reasonable person could interpret the statements as accusing Costello or Millios individually of systemic racism.

Additionally, the plaintiffs claim discrepancies between Cordano's actual sign language and the transcript, suggesting that her signed message directly implicated fraternity members as "faces of racism." Nevertheless, the court maintains that the overall context of the statements still does not point to specific individuals. Even if there were slight differences in interpretation, it would not change the outcome under the group-defamation doctrine, as the context remains focused on the group, not individuals. Consequently, the claims of Costello and Millios fail to establish the first element of defamation.

Two additional grounds support the dismissal of the plaintiffs’ claims. First, President Cordano’s remark labeling Kappa Gamma as “the face of systemic racism” is deemed a non-actionable opinion. The statement, attributed accurately to Cordano in a Washington Post article, reflects her subjective interpretation of the backlash following the circulation of a salute photo and the controversy surrounding robes. Legal precedents dictate that determining whether statements are factual or opinion-based involves analyzing the context, potential implications of undisclosed defamatory facts, and the overall publication context. 

Under the Supreme Court's ruling in Milkovich v. Lorain Journal Co., opinions can be actionable if they imply provably false facts. However, statements characterized as subjective assessments or rhetorical hyperbole are not actionable. Cordano’s use of the phrase “face of” indicates her subjective view, supported by undisputed facts regarding the photo's circulation. The potential implication of undisclosed defamatory facts centers on “new information” leading to renewed demands for change, but this pertains to Kappa Gamma as a whole rather than any individual plaintiff. Courts have consistently found similar statements regarding racism or bigotry to be non-actionable opinions. No cases have established that claims of being anti-gay or homophobic constitute actionable defamation.

In Brimelow v. N.Y. Times Co., the court ruled that labeling individuals as "white nationalists" constitutes non-actionable opinion commentary, following precedents where terms like "racist" and "anti-Semitic" are similarly deemed non-fact-based and thus not defamatory. The court noted that most jurisdictions do not find allegations of racism or bigotry to be actionable due to their subjective nature. It further explained that phrases like "face of systemic racism" also fall into the category of opinion.

The court addressed two specific statements from a Washington Post article: the suspension of Gallaudet University's fraternity for wearing robes resembling Ku Klux Klan attire and a description of a salute photograph as an "apparent Nazi salute." The use of terms like "resemble" and "apparent" suggests these statements are opinions, as they reflect the attribution of statements from university officials. Additionally, the plaintiffs conceded the substantial truth of the "apparent Nazi salute," which negates any defamation claims.

The court concluded that the challenged statements either do not pertain to the plaintiffs or are legally flawed, warranting dismissal with prejudice. The court's decision was guided by previous rulings affirming that similar claims were not actionable under defamation laws. Consequently, the motions to dismiss were granted, and the case was dismissed with prejudice.