United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2023 Decided October 4, 2024

No. 22-7117

MICHELLE FLORIO, AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF STEVEN FLORIO, DECEASED, ET AL.,

APPELLANTS

v.

GALLAUDET UNIVERSITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-01565)

Christopher E. Mills, appointed by the court, argued the 

cause and filed the supplemental briefs as amicus curiae in 

support of appellants.

Clifford J. Zatz argued the cause and filed the 

supplemental brief for appellees Gallaudet University, et al.

Nicholas G. Gamse argued the cause for appellee WP 

Company, LLC. With him on the supplemental brief were 

Thomas G. Hentoff, Anna Johns Hrom, and Mary E. Goetz.
2

Before: HENDERSON and KATSAS, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge HENDERSON.

KATSAS, Circuit Judge: In 1989, thirty-four members of 

the Kappa Gamma fraternity at Gallaudet University were 

photographed together performing the Bellamy salute, which 

was created in the late 19th century for the Pledge of 

Allegiance. Unfortunately, it now also resembles the Nazi 

salute. Thirty years after the photograph was taken, the 

president of Gallaudet, referencing it, described Kappa Gamma 

as the “face of systemic racism” at Gallaudet. The Washington 

Post republished this statement and described the photograph 

as depicting “anti-Semitic” behavior and a “Nazi salute.”

The plaintiffs here are three alumni of Gallaudet’s Kappa 

Gamma chapter, and the estate of a fourth who passed away 

while this litigation was pending. Two of the alumni appeared 

in the 1989 photograph. All four sued Gallaudet and the Post 

for defamation and related torts. The district court dismissed 

the complaint on the grounds that none of the disputed 

statements concerned the plaintiffs, and many of them were not

actionable. 

We disagree in part, but nonetheless affirm. We conclude 

that the statements about the photograph concerned the 

individuals who were in it. But we agree with the district court 

that those statements were protected opinions.
3

I

A

Gallaudet University is the oldest university in the United 

States organized to provide higher education to the deaf. Over 

the last several years, it has faced controversies on various 

matters related to race. So too have its fraternities.

Some of the controversies have involved fraternities’ use 

of the Bellamy salute and ceremonial robes. Francis Bellamy 

wrote the Pledge of Allegiance and created the salute for use 

while reciting it. The salute is performed by holding the right 

arm fully outstretched at an upward angle. It was widely used 

in the United States beginning in 1892. But it resembles the 

salutes adopted by fascist Italy in the 1920s and Nazi Germany 

in the 1930s. So in 1942, Congress amended the Flag Code to 

provide that the Pledge should be performed not with a 

Bellamy salute, but “with the right hand over the heart.” 4 

U.S.C. § 4; see Pub. L. No. 77-623, § 7, 56 Stat. 377, 380. In 

2015, Gallaudet prohibited fraternities from wearing robes at 

public events because of their resemblance to garb worn by the 

Ku Klux Klan. Gallaudet did not prohibit the salute.

Kappa Gamma is the oldest fraternity at Gallaudet. It used

the Bellamy salute as an organizational rite from 1901 until the 

early 1990s. In 1989, thirty-four of its student members were 

photographed performing the salute. In the photograph, 

students of assorted races appear roughly organized in three 

rows, with the front row seated and the back row standing. 

They all appear facing the camera, posing for the photograph,

not wearing robes, and performing the salute in unison. The 

photograph has appeared on the Internet since at least 2016. 

Kappa Gamma members wore ceremonial robes on other 

occasions from 1904 until their prohibition in 2015.
4

B

In the spring of 2020, Gallaudet experienced increased

racial unrest following the death of George Floyd. During that 

time, the salute photo resurfaced online. On June 5, Roberta 

Cordano, the president of Gallaudet, met with the Student Body 

Government and Black Student Union to discuss complaints 

about Gallaudet’s hiring practices, police officers, and culture.

On June 9, Cordano published a YouTube video

announcing the suspension of Kappa Gamma. She

communicated in American Sign Language (ASL). The parties 

dispute what is the most accurate translation of her signing into 

written English. The alumni claim that she said:

During the past few days, starting with the SBG/BSU 

Town Hall Meeting last Friday, we received new 

information that led to many people calling for 

attention to Kappa Gamma, one of Gallaudet’s long 

established fraternities. Kappa Gamma, pictures 

distributed on social media of their use of hooded 

robes and of the salute, they have become the face of 

systemic racism. This behavior is unacceptable.

J.A. 32 (cleaned up) (emphasis added). While making this 

statement, Cordano performed what the alumni describe as a 

“version of a Bellamy salute” that gave the “appearance” of a 

Nazi salute. Id. at 34.

In a later video posted in July, Cordano clarified that 

Kappa Gamma was “not suspended because of old photos,” but 

based on “new evidence” of its “intention to bring back the use 

of robes.” J.A. 44. She also stated that although “Kappa 

Gamma used robes and a salute that is racist,” no one “person 
5

or group” was solely responsible “for the systemic racism at 

Gallaudet.” Id. at 45.

The Washington Post covered the story of Kappa 

Gamma’s suspension in three articles. Two online pieces 

began with the headline “Gallaudet University suspends 

fraternity after anti-Semitic photo resurfaces.” J.A. 89, 105. 

The one in print began with a large headline “Gallaudet 

suspends its oldest fraternity” followed by a smaller headline: 

“Photos involving Nazi salute, KKK-style garb seal Kappa 

Gamma’s fate.” Id. at 108. The articles referenced “recent 

photos” of Kappa Gamma members wearing “prohibited”

robes “with pointed hoods.” Id. at 105, 108. And they 

mentioned an “older photo,” which assertedly showed “former 

members ... performing an apparent Nazi salute.” Id. at 89, 

105, 108. The print version of the story and the updated online 

version, but not the original online version, clarified that the 

old salute photo “was not a factor in the suspension.” Id. at 

105, 108. After stating that “the return of the fraternity’s robes 

reignited demands for change within an organization that has 

previously been accused of anti-Semitism and racism,” the 

articles quoted Cordano’s “face of systemic racism” charge, as 

translated in Gallaudet’s official transcript of her signed video: 

“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.” 

Id. at 90–91, 105, 109 (articles); see also id. at 76 (transcript).

C

The plaintiffs are four Gallaudet alumni who were student 

members of Kappa Gamma in the late 1980s or early 1990s. 

Two of them, Patrick Costello and William Millios, appeared 

in the 1989 photograph of the Bellamy salute. The other two, 

Steven Florio and Timothy Mallach, neither appeared in the 
6

photograph nor were even Kappa Gamma members when it 

was taken, although Florio asserted that he was misidentified 

by third parties as appearing in the photo. All four sued 

Gallaudet (including its board of trustees and Cordano) and the 

Post for the statements summarized above.

The alumni assert various defamation claims. They allege

that Cordano defamed them by calling them the “face of 

systemic racism” and suggesting that they had performed a 

Nazi salute. They allege that the Post defamed them by 

republishing Cordano’s “face of systemic racism” statement, 

labeling the salute photo “anti-Semitic,” referring to the salute 

as a “Nazi salute,” and connecting the photo to the robe 

controversy. They also argue that both sets of defendants 

implied that additional unflattering information or photographs 

existed.

The alumni allege that they suffered severe reputational 

and financial harms from the insinuations of racism, antiSemitism, and Nazi sympathizing. Moreover, they say, these 

harms were made worse by their positions in a tight-knit deaf 

community where “everybody knows everybody.” J.A. 11. 

Costello alleges that he was forced to resign by a school for the 

deaf where he had worked for 23 years and that he has been 

unable to find new employment. Id. at 63. Millios alleges that 

he was fired by the Registry of Interpreters for the Deaf, where 

he had worked for seven years, and that he has been unable to 

find new employment. Id. at 65. Florio (who passed away 

while this appeal was pending) alleged that he was fired as a 

commissioner on the Massachusetts Commission for the Deaf 

and Hard of Hearing, was forced to move to Florida, and was 

unable to find new employment. Id. at 60–61. Mallach alleges

that he was forced to resign from a school for the deaf where 

he had worked for two decades and has been unable to find new 

employment. Id. at 67.
7 

The district court dismissed the complaint for failure to 

state a claim. Florio v. Gallaudet Univ., 619 F. Supp. 3d 36 

(D.D.C. 2022). It concluded that “none of [the] challenged 

statements concern the individual plaintiffs, and others are also 

either non-actionable statements of opinion or concededly 

true.” Id. at 40. The alumni appealed.1

II

We review de novo a dismissal for failure to state a claim. 

Ctr. for Biological Diversity v. U.S. Int’l Dev. Fin. Corp., 77 

F.4th 679, 685 (D.C. Cir. 2023). “To survive a motion to 

dismiss, 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) (cleaned 

up). In other words, the complaint must allow a “court to draw 

the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id.

To state a defamation claim under D.C. law, a plaintiff 

must plausibly allege: 

(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 met the requisite standard; 

and (4) either that the statement was actionable as a 

1

 While the appeal was pending, the plaintiffs’ counsel passed 

away, and we appointed Christopher Mills as amicus curiae to brief 

and argue in support of the plaintiffs. Mr. Mills has ably discharged 

his duties, and the Court thanks him for his service.
8 

matter of law irrespective of special harm or that its 

publication caused the plaintiff special harm. 

Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1240 (D.C. 

2016) (cleaned up). The only disputed issues here are whether 

the statements at issue concerned the plaintiffs and whether 

they were actionable. 

A 

To plausibly allege that the statements at issue concerned 

them, plaintiffs must show “that a ‘reasonable listener’ could 

think that [the defendants were] referring to [them].” Browning 

v. Clinton, 292 F.3d 235, 247 (D.C. Cir. 2002). The district 

court held that “the challenged statements are about 

Gallaudet’s Kappa Gamma chapter as a whole, not about any 

one member.” Florio, 619 F. Supp. 3d at 45. We agree as to

the statements not specifically about the photograph. But we 

conclude that the statements about the photograph concerned

the two plaintiffs who appeared in it.

1 

a 

The alumni plausibly allege that a reasonable viewer or 

reader could think the defendants’ statements about the salute 

photograph referred to them as individuals. These include 

Cordano’s “face of systemic racism” statement and her 

suggestion that the photo depicted a Nazi salute, as well as the 

Post’s similar statements and its characterization of the photo 

as “anti-Semitic.” 

The parties dispute to whom Cordano was referring when 

she allegedly stated that “Kappa Gamma, pictures distributed 

on social media of their use of hooded robes and of the salute, 
9

they have become the face of systemic racism. This behavior 

is unacceptable.” J.A. 32 (cleaned up) (emphasis added). 

Cordano contends that her “face of systemic racism” comment 

referred only to Kappa Gamma itself—and not to the 

individuals in the salute photo. The referent of a particular 

statement is a question of fact. See Atkins v. Indus. Telecomms.

Ass’n, Inc., 660 A.2d 885, 893 (D.C. 1995). So at this stage of 

the litigation, we consider only whether the alumni’s reading 

of Cordano’s statement is plausible. We must also accept what 

the alumni allege to be the most accurate translation of her 

remarks from ASL into English. And in construing the

statement, we must accept the alumni’s allegation that the 1989 

salute photograph was the only widely distributed photo of 

Kappa Gamma members performing the salute and that there 

were no photos of members wearing robes. J.A. 35.

Given these assumptions, we conclude that Cordano’s 

statement plausibly refers to the individuals in the photograph 

as well as to the fraternity itself. For one thing, her statement 

focuses on “behavior” such as a “salute,” which most naturally 

denotes that individuals are performing it. Moreover, this case 

involves a disputed translation from ASL into English, and no 

translation may perfectly capture what Cordano conveyed. As 

the amicus stresses, the rules of English grammar have only 

limited utility here because ASL “uses a different system of 

syntax” from spoken English. Belt, American Sign Language 

is Not English on the Hands, ASL University (July 18, 2013)

(cleaned up). The meaning of individual words depends 

heavily on context, and entire categories of English words,

such as articles, simply do not exist in ASL. See id. Given a 

disputed translation and a plausible English reading that favors 

the plaintiffs, we cannot rule out the alumni’s interpretation as 

a matter of law at this stage. And if Cordano’s “face of 

systemic racism” statement referred to the individuals in the 

salute photograph, then so did her implication that they 
10

performed a Nazi salute. These statements plausibly refer to 

Costello and Millios, who appear in the photograph. 

The Post published Cordano’s “face of systemic racism” 

statement as reflected in an official transcript of her signed 

comments. In this version of the statement, Cordano described 

recent controversies involving Kappa Gamma and then said: 

“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.” 

J.A. 90–91, 105, 109. Again, the invocation of photographs to 

contend that a fraternity has become a “face” of systemic 

racism calls attention to the photographed individuals—at least 

if, as the alumni argue, there is only one, notorious salute 

photograph. Moreover, the Post article discusses the salute 

controversy at some length, which again focuses attention on 

the students in the referenced salute photo. Likewise, so do the 

Post’s characterizations of the photograph as “anti-Semitic” 

and as depicting a “Nazi salute.”

But statements about the salute photograph do not refer to 

Florio or Mallach. Again, this inquiry focuses on whether a 

“reasonable” person could think that Cordano or the Post was 

referring to him. Browning, 292 F.3d at 247. Florio alleges 

that he was incorrectly identified as appearing in the 

photograph. But he was not in it, and he alleges no facts 

supporting a plausible inference that he was reasonably

misidentified even though he was not even a member of Kappa 

Gamma when the photo was taken. Mallach’s argument is 

even weaker. He did not appear in the photograph, nor does he

allege a misidentification. 

b

Gallaudet and the Post raise two counterarguments. First, 

they argue that neither Cordano nor the Post republished the 
11 

salute photograph, so many who viewed or read their 

statements would not know who was pictured. But that does 

not absolve them. “[I]t suffices that the statements at issue lead 

the listener to conclude that the speaker is referring to the 

plaintiff by description, even if the plaintiff is never named or 

is misnamed.” Croixland Props. Ltd. P’ship v. Corcoran, 174 

F.3d 213, 216 (D.C. Cir. 1999). Here, Costello and Millios 

alleged facts plausibly supporting a conclusion that some

viewers identified them as individuals in the photograph and 

reasonably understood the statements as referring to them. 

They allege that they did appear in the photograph, that it was 

widely distributed within the deaf community, that they 

suffered backlash within “hours, if not minutes” of Cordano’s 

signed statement, and that they lost longstanding jobs as a 

result. J.A. 41–43, 62–66. That is more than enough to plead 

that these statements concerned them. 

Second, Gallaudet and the Post raise legal arguments why, 

even if the statements about the salute photograph referred to 

the individuals in it, none of them may assert defamation 

claims. The Post contends that an individual has no claim 

unless a defamatory statement makes specific reference to him 

or her. And both defendants contend that when a speaker refers 

to a group of 34 individuals, the group is too large to support 

claims by the individuals. We disagree on both counts. 

Ordinarily, defamatory “statements which refer to an 

organization do not implicate its members.” Jankovic v. Int’l

Crisis Grp., 494 F.3d 1080, 1089 (D.C. Cir. 2007) (cleaned up). 

But “[w]hen a statement refers to a group, a member of that 

group may claim defamation if the group’s size or other 

circumstances are such that a reasonable listener could 

conclude the statement referred to each member.” Browning, 

292 F.3d at 247. As we have explained, the statements about 

the salute photograph may refer to each individual in it. And 
12 

despite the Post’s contrary contention, there is no further 

requirement that the defendant specifically refer to each 

plaintiff individually.

Consider Service Parking Corp. v. Washington Times Co., 

92 F.2d 502 (D.C. Cir. 1937), a decision that the D.C. Court of 

Appeals treats as a binding precedent of D.C. law, see M.A.P.

v. Ryan, 285 A.2d 310, 312 (D.C. 1971). In Service Parking, a 

newspaper published an article suggesting that parking lot 

operators in a certain downtown area had engaged in unlawful 

activity. 92 F.2d at 503. At the time, there were “twenty to 

thirty parking lots ... operated by ten or twelve owners” in that 

area. Id. We stated this test for whether the statements at issue 

“referred to” the plaintiff: “Where the words reflect on each 

and every member of a certain number or class, each or all can 

sue.” Id. at 504 (quoting Odgers, Libel and Slander 124–25

(6th ed. 1929)). Applying that rule, we held that the article did 

not refer to the individual plaintiffs. Because the article 

contained no language mentioning any “ascertainable person,” 

and because the class was not “so small” that a statement about 

the group necessarily applied to each member, we held that the 

article “could not reasonably be said to concern more than 

downtown parking lots and their owners as a class.” Id. at 506

(cleaned up). Nonetheless, if the persons referenced were 

“ascertainable,” Service Parking dictates that those persons 

could sue for defamation. Id.

In response, the defendants cite Fowler v. Curtis 

Publishing Co., 182 F.2d 377 (D.C. Cir. 1950). There, the 

owner of a fleet of taxi cabs, on behalf of himself and 59 

drivers, sued a newspaper over a satire portraying D.C. cab 

drivers as dishonest. Id. at 377–78. Holding that the plaintiff 

had not stated a claim, we concluded that “in case of a 

defamatory publication directed against a class, without in any 

way identifying any specific individual, no individual member 
13 

of the group has any redress.” Id. at 378. But Fowler is 

consistent with Service Parking. A generalization about D.C. 

cab drivers is not a statement about each driver. In both cases, 

the allegedly defamatory statements referred only to the class 

as a whole, and context prevented any reasonable inference that 

the statement applied to each individual member. 

In this case, each of the individuals in the photo is readily 

identifiable because all of their faces are visible. And 

statements about the salute plausibly refer to all of them 

because they were all performing the salute in unison. Because 

the disputed statements about the photograph reflect on “each 

and every” individual in it, the statements concern those 

individuals. See Service Parking, 92 F.2d at 504. 

The defendants also object that defamatory statements 

about a group of 34 people cannot support individual claims 

because the group is simply too large. But the size of a group 

matters only as a contextual consideration bearing on whether 

a statement about the group can fairly be understood as a 

statement about all of its members. For very large groups, such 

universal application is highly unlikely. A statement that 

“Kappa Gamma members are anti-Semitic,” like a statement 

that “D.C. cab drivers are dishonest,” cannot reasonably be 

understood as referencing each member of the group. See 

Fowler, 182 F.2d at 377–78. In contrast, a statement about a 

marital couple surely references both of its members. But 

regardless of the group’s size, the key question is whether a 

statement about a group “refer[s] to some ascertained or 

ascertainable person.” Service Parking, 92 F.2d at 506 

(cleaned up).

Here, statements about the group plausibly refer to its 

individual members. In the abstract, it is hard to say whether 

statements about a group of 34 individuals should be attributed 
14

to each individual member. But here, the group consists of 

individuals posing for a photograph with a ritualized gesture 

that is its defining feature. As we have explained, it is at least 

plausible to understand statements about the photograph as also 

statements about the individuals performing the gesture.

2

The alumni have not plausibly alleged that the other 

disputed statements—ones not about the salute photograph—

refer to them individually.

The alumni allege that the Post falsely connected the 

salute-photo controversy with the robe controversy and falsely 

implied that fraternity members wore hooded robes. J.A. 37–

38. The article discussed both controversies, stated that Kappa 

Gamma student members had worn hooded robes in the past, 

and reported that “recent photos” showed other student 

members “in the outfits again.” Id. at 105, 108. But the Post 

did not state that the plaintiffs themselves had worn robes. And 

its article stated that the salute photo—in which none of the 

photographed students was robed—“resurfaced around the 

same time members were caught wearing the robes.” Id. at

105. The time referenced was around 2020, some three 

decades after the plaintiffs had left Gallaudet. So, readers 

could not reasonably think that the members “caught wearing 

the robes” included the plaintiffs.

The alumni further allege that Cordano and the Post falsely

asserted that the Kappa Gamma suspension was based on new 

information or a new photograph. J.A. 44, 56. True, Cordano 

stated that she had received “new information” calling attention 

to Kappa Gamma. Id. at 32. But this statement did not imply 

that she had any new information about the four plaintiffs. And 

Cordano later clarified that the new information involved 

Kappa Gamma’s alleged “intention to bring back the use of 
15 

robes.” Id. at 44. Likewise, the alumni allege the Post implied 

that there were new photos of Kappa Gamma members wearing 

robes. Id. at 38. But the article neither stated nor implied that 

the plaintiffs were among those members.

B 

To be actionable under D.C. defamation law, a statement 

must be both “defamatory” and “provably false.” Competitive

Enter. Inst., 150 A.3d at 1241. A “defamatory” statement is 

one that makes the plaintiff appear “odious, infamous, or 

ridiculous.” Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 

1984) (cleaned up). To be “provably false,” a statement must 

either be factual or, if framed as an opinion, must “imply a 

provably false fact or rely on facts that are provably false.” 

Competitive Enter. Inst., 150 A.3d at 1242. The First 

Amendment incorporates the same limitation. See Milkovich

v. Lorain Journal Co., 497 U.S. 1, 19 (1990) (“a statement on 

matters of public concern must be provable as false before there 

can be liability under state defamation law”); Phila. 

Newspapers, Inc. v. Hepps, 475 U.S. 767, 776–78 (1986). 

Applying these standards, we hold that the disputed 

statements about the salute photograph are non-actionable 

opinions. 

1 

Without more, politically charged epithets are often

protected opinions lacking sufficient factual content to be 

provably false. Our cases have made this point repeatedly for 

the terms “fascist” and “Marxist.” In Liberty Lobby, Inc. v. 

Anderson, 746 F.2d 1563 (D.C. Cir. 1984), rev’d on other 

grounds, 477 U.S. 242 (1986), we had “no difficulty” 

concluding that the word “fascism,” when used to express 

disapproval with political adversaries, was a protected 
16 

“statement of opinion.” Id. at 1573; see also Buckley v. Littell, 

539 F.2d 882, 894 (2d Cir. 1976). In Ollman v. Evans, 750 

F.2d 970 (D.C. Cir. 1984) (en banc), we held that a charge of 

“Marxism” against a university professor was likewise 

protected opinion because it was “hopelessly imprecise and 

indefinite.” Id. at 987–88. In Liberty Lobby, Inc. v. Dow Jones 

& Co., 838 F.2d 1287 (D.C. Cir. 1988), we reaffirmed that the 

“use of ‘fascist’ as a generic epithet” was not actionable. Id. at 

1297. And in Competitive Enterprise Institute, the D.C. Court 

of Appeals agreed that calling someone a “fascist” was not 

actionable “due to the tremendous imprecision of the meaning 

and usage of th[is] term[] in the realm of political debate.” 150 

A.3d at 1248.2

In this case, statements describing the students in the salute 

photo as the “face of systemic racism” and “anti-Semitic” are 

likewise not actionable. In the abstract, “systemic racism” is a 

“hopelessly imprecise” phrase and is thus not provably false. 

Ollman, 750 F.2d at 987. And here, the charges of racism and 

anti-Semitism were based on the salute photograph, providing 

factual context that “readers can easily judge ... for 

themselves.” McCafferty v. Newsweek Media Grp., Ltd., 955 

F.3d 352 (3d Cir. 2020). Some observers might conclude that 

the continued use of a gesture that appears indistinguishable 

2

 The alumni rely heavily on Afro-American Publishing Co. v. 

Jaffe, 366 F.2d 649 (D.C. Cir. 1966) (en banc), which held actionable 

a statement that the plaintiff, “by canceling his subscription” to the 

Washington Afro-American newspaper, “would appear to be a 

bigot.” Id. at 665 (cleaned up). This statement that the cancellation

was motivated by racial animus contained more factual content than 

a mere epithet. To the extent Jaffe further suggested that the use of 

“bigot” as an epithet is actionable, or cited with approval out-ofcircuit precedent finding it “actionable to charge that one is proNazi,” id., it has been overtaken by other binding decisions such as 

Hepps, Ollman, and Competitive Enterprise Institute. 
17 

from a Nazi salute, some 50 years after Congress prescribed a 

different gesture for the Pledge, warrants the harsh 

condemnation of loaded epithets. Others might conclude that 

the condemnation is unfair, given a tradition dating back not to 

Hitler and Mussolini, but to Francis Bellamy. Regardless, we 

are confident that the contested statements at issue here, 

although inflammatory, were not provably false. 

2 

The alumni also allege that Cordano and the Post stated or 

implied that the students in the photo performed a Nazi salute. 

They allege that Cordano signed a “version of a Bellamy 

salute” that “g[ave] the appearance” of a Nazi salute. J.A. 34. 

And they allege that the Post reported that the students in the 

photograph had performed an “apparent Nazi salute.” Id. at

56–57. These statements are opinions based on facts not 

provably false. The parties agree that a Bellamy salute and a 

Nazi salute are at least similar in appearance. Id. at 22. In fact, 

the alumni do not identify any difference between them. And

anyone inspecting the photograph—which is necessary to 

connect the epithets used to Costello and Millios—would 

easily recognize what are at a minimum obvious similarities. 

III

For these reasons, we affirm the district court. 

So ordered. 
KAREN LECRAFT HENDERSON, Circuit Judge, concurring: 

I join my colleagues regarding the law that controls this case 

without reservation — but I do so with nose held. The highestranking official of a respected and public-spirited university 

serving specialized students for over 150 years has successfully 

deflected criticism and skirted responsibility in an apparently

long-running controversy. And the fourth estate is once 

again — and under the law — blameless. The only parties to 

suffer are the alumni plaintiffs, whose antiquated gesture of 

fraternal allegiance — gratuitously publicized 35 years

later — has most likely blighted the remainder of their lives.