Michelle Florio, As Personal Representative of the Estate of Steven Florio, Deceased v. Gallaudet University

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2023 Decided October 4, 2024
No. 22-7117
M ICHELLE FLORIO, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF S TEVEN FLORIO, DECEASED, ET AL.,
APPELLANTS
v.
GALLAUDET U NIVERSITY , 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.

-- 1 of 18 --

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.

-- 2 of 18 --

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.

-- 3 of 18 --

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

-- 4 of 18 --

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

-- 5 of 18 --

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, anti-
Semitism, 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.

-- 6 of 18 --

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.

-- 7 of 18 --

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,

-- 8 of 18 --

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

-- 9 of 18 --

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

-- 10 of 18 --

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

-- 11 of 18 --

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

-- 12 of 18 --

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

-- 13 of 18 --

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

-- 14 of 18 --

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

-- 15 of 18 --

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-of-
circuit precedent finding it “actionable to charge that one is pro-
Nazi,” id., it has been overtaken by other binding decisions such as
Hepps, Ollman, and Competitive Enterprise Institute.

-- 16 of 18 --

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.

-- 17 of 18 --

KAREN LEC RAFT 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 highest-
ranking 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.

-- 18 of 18 --