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 ph