Gallaudet University was established to provide higher education for the deaf. Over the last several years, the University and its fraternities have faced controversies on various matters related to race. For example, until the early 1990s, Kappa Gamma, the University’s oldest fraternity, utilized the Bellamy salute—a gesture created for the Pledge of Allegiance in the late 19th century but later associated with fascist regimes. In 1942, Congress amended the Flag Code to provide that the Pledge should be performed with the right hand over the heart, rather than the Bellamy salute. Nonetheless, a 1989 photograph depicts 34 members of Gallaudet’s Kappa Gamma chapter performing this salute. The image, showing members in three organized rows with outstretched arms, remained online since at least 2016.
In 2020, amidst heightened racial tensions following George Floyd’s death, this photo resurfaced online. Gallaudet’s president, Roberta Cordano, addressed this image in a public video, describing Kappa Gamma as the “face of systemic racism” and suspended the fraternity. Her remarks, delivered in American Sign Language (ASL), were subject to interpretation disputes. For example, the plaintiffs claimed she performed a version of the Bellamy salute during the statement.
The Washington Post also reported on the controversy, publishing articles with headlines such as “Gallaudet University suspends fraternity after antisemitic photo resurfaces” and referencing “recent photos” showing robes with pointed hoods alongside the older salute photo. While subsequent clarifications noted that the 1989 photo was not a factor in the fraternity’s 2020 suspension, the plaintiffs alleged that these statements implied they were responsible for antisemitic or racist actions.
The plaintiffs were four alumni of Kappa Gamma, two of whom appeared in the 1989 photograph. All four sued Gallaudet and the Post for the statements and articles, alleging various defamation claims. The alumni alleged they suffered significant reputational and financial harm within the tight-knit deaf community. Two of the alumni claimed they lost longstanding jobs, while the other two alumni (one of whom died during litigation) claimed they experienced career and social fallout.
To establish a defamation claim under D.C. law, a plaintiff must show that the defendant made a false and defamatory statement about them, published it to a third party without privilege, acted with the requisite fault (negligence for private individuals or actual malice for public figures), and caused harm to the plaintiff’s reputation or finances. Defenses include truth, protected opinions, privilege, and consent, with actionable claims requiring provably false statements rather than subjective or rhetorical expressions. To plausibly allege that the statements at issue concerned them, the plaintiffs must also show that a reasonable listener could think that the defendants were referring to them.
Applying this framework, the trial court dismissed the complaint, finding that the statements did not concern the individual plaintiffs, and that either the statements were non-actionable statements of opinion, or that the statements were concededly true. The alumni appealed.
On appeal, the alumni argued that the statements about the salute photograph directly implicated them, as they appeared in the photo, and that defamatory terms like “antisemitic” and “face of systemic racism” harmed their reputations. They contended the statements were false and lacked factual support.
The defendants maintained that the statements referred to the fraternity as a group, not individuals. They also argued that the terms used were non-actionable opinions.
The Court of Appeals held that statements about the 1989 photograph plausibly concerned the two plaintiffs who appeared in it, as their identities were readily ascertainable. However, statements unrelated to the photograph did not implicate them individually.
The Court also reasoned that terms like “systemic racism” and “antisemitic” were protected opinions rather than factual assertions. These terms, though inflammatory, were deemed imprecise and subjective, leaving readers to form their own judgments based on the photograph. As opinions, they were not defamatory.
Finally, the Court explained that descriptions of the photograph as depicting a Nazi salute were similarly protected, as the Bellamy salute undeniably resembles the Nazi salute, and any distinction was insufficient to prove falsity.
The D.C. Circuit Court of Appeals affirmed the lower court’s decision and dismissed the case.
Note: Schools should be aware that published statements by the school or its employees can result in defamation claims, even here, when denouncing racism.