United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1952

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Turkish Coalition of America,

Inc.; Sinan Cingilli,

Appellants,

v.

Robert Bruininks, in his

individual capacity; Bruno

Chaouat, in his individual

capacity; University of Minnesota, 

Appellees.

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The Rutherford Institute,

Amicus on behalf of 

Appellants,

Carol L. Chomsky; Jennifer

Green; Robert A. Stein, Dean;

David Samuel Weissbrodt,

Professors Concerned for

Academic Freedom,

Amici on behalf of

Appellees.

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Appeal from the United States

District Court for the 

District of Minnesota.
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Submitted: February 14, 2012

 Filed: May 3, 2012

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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

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GRUENDER, Circuit Judge.

Sinan Cingilli, a student at the University of Minnesota, and Turkish Coalition

of America, Inc. (“TCA”), a non-profit corporation that provides information about

the nation of Turkey and Turkish-Americans, appeal the district court’s dismissal of

their respective First Amendment claims and TCA’s state-law defamation claim for

failure to state a claim. We affirm with respect to TCA’s First Amendment and

defamation claims. With respect to Cingilli’s First Amendment claim, we vacate and

remand for dismissal due to lack of standing.

I. Background

Defendant Professor Bruno Chaouat directs the Center for Holocaust and

Genocide Studies (“Center”) at the University of Minnesota. Prior to November

2010, the Center’s website displayed a list of “Unreliable Websites.” The preface to

the list stated:

We do not recommend these sites. Warnings should be given to

students writing papers that they should not use these sites because of

denial, support by an unknown organization, or contents that are a

strange mix of fact and opinion. We also do not advise using sites with

excessive advertising.

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The “Unreliable Websites” list included websites disputing the factuality of the Nazi

genocide ofJews during World War II and the Turkish genocide of Armenians during

World War I. It mentioned no websites relating to other genocides, although it listed

general internet reference sources such as Wikipedia and About.com. The first

“Unreliable Website” on the list was that of TCA. In late 2008 or early 2009, TCA

sent a letter to the university alleging that the inclusion of TCA’s website, coupled

with the warning to students, violated the First Amendment. The university

responded in August 2009 that the listing was merely the Center’s opinion and that

students remained free to access the TCA website. 

According to the Complaint, on November 5, 2010, Cingilli, then a freshman

at the university, sought out Professor Chaouat and asked about using the TCA

website “in conjunction with a research paper.” Professor Chaouat “strongly

discouraged” such use ofthe website and “repeatedly refused to deny that there would

be academic consequences” for Cingilli if he did so. Cingilli was “afraid to use” the

TCA website after this exchange. Notably, however, the Complaint does not suggest

that Cingilli was enrolled in a class with Professor Chaouat or that the professor was

otherwise in a position to affect Cingilli’s grades or academic standing. 

Following Cingilli’s meeting with Professor Chaouat, TCA sent a demand

letter to the university with a draft complaint attached. On November 18, 2010, the

Center revised its website, removing the list of unreliable websites and offering

“recommended” resources instead. The university sent a letter to TCA denying that

the change was motivated by the demand letter and denying any wrongdoing. The

letter also stated that the university would “not permit any kind of retaliation” against

Cingilli and that all students “are evaluated based upon the quality of their academic

work.” Articles about the dispute appeared in two newspapers, and on November 24,

Professor Chaouat posted a “Response to ‘Unreliable Websites’” on the Center’s

website. The response stated that the “Unreliable Websites” list was removed

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because Professor Chaouat did not want to “promote, even negatively, sources of

illegitimate information.”

A week later, TCA and Cingilli filed this suit alleging various constitutional

claims and state-lawdefamation against the university, its president Robert Bruininks,

and Professor Chaouat. The district court dismissed all claims for failure to state a

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claim under Federal Rule of Civil Procedure 12(b)(6), holding that the doctrine of

academic freedom protected the actions of all defendants and that the alleged

defamatory statements were solely matters of opinion. The district court also stated

that “it does not appear” that the requirements of Article III standing were satisfied,

although it did not analyze the issue. TCA and Cingilli appeal only the dismissal of

the First Amendment and defamation claims.

II. Standing

The district court erred in assuming without deciding that the requirements of

standing were met, because “standing is a jurisdictional prerequisite that must be

resolved before reaching the merits of a suit.” City of Clarkson Valley v. Mineta, 495

F.3d 567, 569 (8th Cir. 2007). In addressing standing, “the court must accept all

factual allegations in the complaint as true and draw all inferences in the plaintiff’s

favor.” Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840,

843 (8th Cir. 2005). Standing requires (1) an injury that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical,” (2) that the

injury “be fairly traceable to the challenged action of the defendant,” and (3) that it

is “likely, as opposed to merely speculative, that the injury will be redressed by a

The Complaint sought damages on the constitutional claims against solely 1

President Bruininks and Professor Chaouat in their individual capacities. See

Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (“[T]he University of

Minnesota is an instrumentality of the state and entitled to share in the state’s

Eleventh Amendment immunity.”).

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favorable decision.” Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381

F.3d 785, 791-92 (8th Cir. 2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 559-61 (1992)). 

A. Cingilli

Cingilli makes no allegation that the defendants have taken any action to

prevent him from accessing the TCA website at his will. Instead, he alleges that he

fears retaliation, in the form of lowered grades or other detriment to his academic

standing, if he usesthe website for a research paper. He relies on the proposition that,

in the context of a First Amendment claim, “actual injury can exist for standing

purposes even if the plaintiff has not engaged in the prohibited expression as long as

the plaintiff is objectively reasonably chilled from exercising his First Amendment

right to free expression in order to avoid enforcement consequences.” Id. at 792. His

argument fails, however, because the Complaint does not allege that Professor

Chaouat has any ability whatsoever to influence Cingilli’s academic standing.

In his reply brief, Cingilli urges that, despite an absence of control over any of

Cingilli’s grades, Professor Chaouat might be able to affect his academic standing

because “professorsregularly communicate to one another about work-related issues,

such as . . . troublesome students.” Even treating this generously as an inference one

might draw from the Complaint, it is far too speculative to establish an objectively

reasonable chilling effect. See Klobuchar, 381 F.3d at 791-92. As we noted in a

similar situation, “Plaintiffs claim that they have thoroughly described why . . . the

statute could be easily manipulated, and the possible motives police may have to [do

so] . . . . Even so, they fail in the key respect of asserting that peace officers in fact

initiate retaliatory prosecution . . . .” Zanders v. Swanson, 573 F.3d 591, 594 (8th Cir.

2009) (finding no standing for plaintiffs’ First Amendment claims). Likewise, in the

instant case, there are no factual allegations that Professor Chaouat or other

professors at the University of Minnesota in fact reach out to lower the grades of

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“troublesome” students in classes taught by others. In the same fashion, while

President Bruininks conceivably could intervene to lower Cingilli’s grades or deny

him other academic benefits, there is no allegation that he in fact engages in such

practices. As a result, Cingilli has not “nudged [his] claims across the line from

conceivable to plausible.” Id.(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

Because Cingilli fails to plead facts sufficient to demonstrate an objectively

reasonable chilling effect, he has not established standing to pursue a First

Amendment claim under these circumstances.

B. TCA

TCA argues that it has standing to pursue a First Amendment claimbecause the

labeling of its website as “unreliable,” and the inclusion of it on the same list as

websites denying the Holocaust perpetrated by the Nazis inWorld War II, stigmatized

TCA. TCA relies on Meese v. Keene, 481 U.S. 465 (1987), in which a California

attorney serving as a state senator wished to show Canadian films purporting to

address the effects of nuclear war and acid rain. Because the films met the definition

of “political propaganda” under the Foreign Agents Registration Act of 1938,

however, the state senator feared damage to his public reputation as a “disseminator

of foreign political propaganda.” Id. at 467. He filed suit on First Amendment

grounds to enjoin the application of the Act. The Court acknowledged that the Act

did “not have a direct effect on the exercise of his First Amendment rights” because

it did “not prevent him from obtaining or exhibiting the films.” Id. at 473. 

Nevertheless, the Court found that he alleged a cognizable injury based on his

allegation that “his personal, political, and professional reputation would suffer and

his ability to obtain re-election and to practice his profession would be impaired.” Id.

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Several courts have found that, under Meese, a non-profit organization that

alleges an injury to reputation through stigmatizing government speech has Article

III standing to bring a constitutional claim:

The fact that an injury to the reputation of an organization such as

SMHA can serve as a basis for standing has been recognized at least

since Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123

(1951) (plurality opinion). In that case, the Supreme Court stated that

the effect of designating the complaining organizations as “Communist”

was to “cripple the functioning and damage the reputation of those

organizations in their respective communities and in the nation.” Id. at

139 (principal opinion) (Burton, J.); see id. at 140-41.

S. Mut. Help Ass’n, Inc. v. Califano, 574 F.2d 518, 524 (D.C. Cir. 1977); see also

Riggs v. City of Albuquerque, 916 F.2d 582, 583-85 (10th Cir. 1990) (holding that

plaintiff “politically active organizations who, it was alleged, have often taken

controversial and unpopular positions” pled a cognizable injury for standing purposes

where they “allege[d] harm to their personal, political, and professional reputations

in the community”). We agree that TCA similarly has pled a cognizable injury here. 

As a result, TCA has standing to pursue its First Amendment claim.

III. TCA’s First Amendment Claim

Although it has standing, TCA nevertheless fails to state a First Amendment

claim under Rule 12(b)(6). The grant of a motion to dismiss is reviewed de novo. 

Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008). “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) (quoting Bell Atl. Corp., 550 U.S. at 570).

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TCA contends that an advocacy organization’s First Amendment right to

express its ideas, as well as the First Amendment rights of others to receive those

ideas, are violated when a state university professor opines that the organization’s

materials are unreliable and warns students that using those materials in a research

paper will result in bad grades. To support its contention, TCA relies primarily upon

three Supreme Court cases. Examining each of those three cases in turn, however,

convinces us that the complained-of conduct, without more, does not rise to the level

of a First Amendment violation.

First, TCA relies on Board of Education, Island Trees Union Free School

District No. 26 v. Pico, 457 U.S. 853 (1982), in which secondary school students

challenged a school board’s removal of certain books from school libraries. In Pico,

the Supreme Court, citing the “right to receive ideas,” id. at 867, ruled that the First

Amendment was violated if the school board members “intended by their removal

decision to deny [students] access to ideas with which [the school board] disagreed,

and if this intent was the decisive factor in [the] decision,” id. at 871. TCA argues

that, following Pico, they have stated a First Amendment claim with their allegation

that the Center’s intent in warning students about the TCA website was to deny

access to ideas with which the Center disagreed. 

The key distinction in Pico is that the books actually were removed from the

libraries, substantially impairing the students’ ability to access the ideas they

contained. See id. at 866 (“[T]he State may not, consistently with the spirit of the

First Amendment, contract the spectrumof available knowledge.” (quoting Griswold

v. Connecticut, 381 U.S. 479, 482 (1965))). Here, in contrast, “the spectrum of

available knowledge” for students at the university was unaffected. There is no

allegation that the defendants impaired students’ access to the TCA website on a

university-provided internetsystem. There is no hint in the Complaint that university

students were not free to, for example, read the TCA website, email material from the

TCA website to their friends, regale passers-by on the sidewalk with quotes from the

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TCA website, and so forth. In short, TCA’s website was not “removed” from the

university in any sense. 

Second, TCA relies on Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), in

which book publishers challenged a state statute empowering the “Rhode Island

Commission to Encourage Morality in Youth” to declare certain books to be

“objectionable.” Id. at 61. When the Commission identified an objectionable book,

it notified the in-state wholesale distributor of the book that the Commission had a

duty to recommend prosecution if the Commission viewed the book as obscene. Id.

at 62. The Commission typically sent local police officersto inquire what actionsthe

distributor took as a result of the notice. Id. at 63. Distributors subjected to this

practice routinely decided to cease their distribution of the challenged book without

waiting to see if prosecution was recommended. Id. at 63-64.

TCA contends that here, as in Bantam Books, while the state actor did not

directly block accessto the disfavored material, the state actor’s actions chilled others

into avoiding the materials. Importantly, however, the Court in Bantam Books found

a violation of the First Amendment only because the government actor’s “acts and

practices directly and designedly stopped the circulation of publicationsinmany parts

of Rhode Island.” Id. at 68. In other words, in 1963, if a book’s wholesale distributor

decided not to distribute it, it became physically unavailable. In contrast, as discussed

above, there is no allegation that the challenged actions here made TCA’s website

unavailable to students at the university.

Finally, TCA contends that Meese v. Keene established the proposition that

“[g]overnment aspersion on speech to cast suspicion on its credibility with an actual

or potential audience is a cognizable First Amendment restriction.” While the state

senator in Meese successfully established standing, however, his First Amendment

challenge failed on the merits because the Act did “not pose any obstacle to [his]

access to the materials he wishes to exhibit.” 481 U.S. at 480. Likewise, here there

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is no obstacle to accessing any materials TCA wishes to exhibit on its website; there

is merely an obstacle to citation of the material in students’ research papers. 

Schoolwork submitted for grading is designed to please an audience of one—the

grader—and TCA’s attempt to cast this narrow restriction on re-use of its material as

a universal ban on distribution is unsupportable. While the Center warned against

that narrow type of re-use, it “place[d] no burden on protected expression” by TCA. 

See id.

In light of the absence of allegations that the challenged actions posed an

obstacle to students’ access to the materials on TCA’s website or made those

materials substantially unavailable at the university, the Rule 12(b)(6) dismissal of

TCA’s First Amendment claim must be affirmed.

IV. TCA’s Defamation Claim

TCA alleges that the defendants defamed it by stating that TCA’s website (1)

engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is

“unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an

“illegitimate source of information.” The defendants counter, and the district court

agreed, that these are statements of opinion, rather than fact, and thus cannot support

a claim of defamation.

Under Minnesota law, “[a] statement is defamatory if it (1) has been

communicated to a third party; (2) is false; and (3) tends to harm the individual’s

reputation and lowers him or her in the community’s estimation.” Geraci v.

Eckankar, 526 N.W.2d 391, 397 (Minn. Ct. App. 1995). With regard to the element

of falsity, “[t]ruth is a complete defense, and true statements, however disparaging,

are not actionable.” Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.

Ct. App. 1989). Notably, “statements about matters of public concern not capable of

being proven true or false and statements that cannot be interpreted reasonably as

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stating facts are protected from defamation actions under the First Amendment.” 

Geraci, 526 N.W.2d at 397. Whether a statement can be interpreted as stating facts

is a question of law. Id.

With regard to the first challenged statement, TCA argues that the Center’s

accusation of “denial” is false because the term “denial,” in the context of genocide

studies, is a term of art that implies denial of well-documented underlying facts

associated with a genocidal event. TCA points out that its website does not deny

certain underlying historical facts about the fate of Armenians in Turkey during

World War I, such as that “certainly hundreds of thousands of Armenians died

during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation,

however, the term “denial” would merely express a subjective evaluation of the

credibility of the historical sources for every assertion on the TCA website, many of

which TCA admits are “contested.” Such an evaluation of credibility is essentially

an opinion, “not capable of being proven true or false,” and thus not actionable in

defamation, because different historians might well come to different conclusions. 

See Geraci, 526 N.W.2d at 397. On the other hand, the “denial” statement reasonably

can be construed as stating simply that the TCA website denies that the treatment of

Armenians within Turkey during World War I meets the definition of the term

“genocide.” A statement about the content of the TCA website is capable of being

proven true or false. Because the TCA website does, in fact, state that it is “highly

unlikely that a genocide charge could be sustained against the Ottoman government

or its successor” based on the historical evidence, the Center’s statement under this

interpretation is true and, thus, still not actionable. See Foley, 449 N.W.2d at 500. 

The remaining three statements can be interpreted reasonablyonlyassubjective

opinions, rather than facts. The qualities of being reliable (“trustworthy, safe sure”),

strange (“[u]nusual, abnormal”), and illegitimate (“irregular, abnormal”), see New

Shorter Oxford English Dictionary 2536, 3083, 1309 (4th ed. 1993), each are in the

eye of the beholder, and they did not appear in a context that would provide an

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objective, fact-basedmeasurement ofthese qualities. See Geraci, 526 N.W.2d at 397-

98 (affirming that statements that the plaintiff “had poisoned the board,” was “out of

control,” “a bad influence,” “emotional,” and “not a team player” could not

reasonably be interpreted as stating facts).

TCA nevertheless argues that the four statements, taken together in context,

imply a charge of scholastic fraud against TCA, and that scholastic fraud is capable

of being proved true or false. To be sure, “[w]ords, which taken by themselves have 2

an innocent meaning, in connection with surrounding circumstances, may convey a

defamatory meaning to those familiar with such circumstances.” Gadach v. Benton

Cnty. Co-op Ass’n, 53 N.W.2d 230, 232 (Minn. 1952). In such cases, “[w]hether a

defamatorymeaning is conveyed is dependent upon how ordinarymen understand the

language used in the light of surrounding circumstances.” Id. Here, however, the

statements in context would not suggest to an ordinary listener that the speaker

intended to level specific charges of scholastic fraud against TCA, Wikipedia, or the

other listed websites, not least because websites in general are not ordinarily viewed

asscholarly works. This is particularly true of an advocacy website like the TCA site. 

See, e.g., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007) (“[A] company’s

website is a marketing tool. Often, marketing material is full of imprecise puffery

that no one should take at face value.”).

Because the challenged statements either are true or cannot reasonably be

interpreted as stating facts, the Rule 12(b)(6) dismissal of TCA’s defamation claim

also must be affirmed.

TCA apparently defines “scholastic fraud” as an intentional falsification in a

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published scholarly work.

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V. Conclusion

For the foregoing reasons, we affirm with respect to TCA’s First Amendment

and defamation claims, and we vacate and remand for dismissal due to lack of

standing with respect to Cingilli’s First Amendment claim.

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