Friday, October 4, 2024
The Bellamy Salute
The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of defamation and related claims
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.
The history of the salute
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.” 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.
The Gallaudet President suspended Kappa Gamma in the wake of the George Floyd protests and made this statement by youtube video
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.
A second video
In a later video posted in July, [President] 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.”
The Washington Post covered the controversy in a series of three articles.
Students in the photograph sued
we conclude that Cordano’s statement plausibly refers to the individuals in the photograph as well as to the fraternity itself.
But
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...
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.
And
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.
The panel consisted of Henderson and Katkas (who authored the opinion), Circuit Judges, and Edwards, Senior Circuit Judge.
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 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.
(Mike Frisch)
https://lawprofessors.typepad.com/legal_profession/2024/10/the-united-states-court-of-appeals-for-the-district-of-columbia-circuit-affirmed-the-dismissal-of-defamation-and-related-clai.html