[00:00:00] Speaker 00: Case number 22-7117. [00:00:03] Speaker 00: Michelle Florio as personal representative of the estate of Stephen Florio, deceased at all, Appellants versus Gallaudet University at all. [00:00:13] Speaker 00: Mr. Mills for the, for amicus curiae for Appellants. [00:00:17] Speaker 00: Mr. Zatz for Appellees, Gallaudet University at all and Roberta Cordano. [00:00:22] Speaker 00: And Mr. Gamzee, Appellee WP company doing business as the Washington Post. [00:00:28] Speaker 00: Mr. Mills, good afternoon. [00:00:30] Speaker 01: Thank you, your honor, and may it please the court. [00:00:32] Speaker 01: Gallaudet's university's president is a central figure of prominence and authority within the worldwide deaf community. [00:00:40] Speaker 01: So when she, shortly after the killing of George Floyd, referred to a photograph of 34 fraternity members saluting and said that they were the face of systemic racism with unacceptable behavior, people listened. [00:00:57] Speaker 01: When she invoked undisclosed new information underlined her accusation of racist rituals. [00:01:03] Speaker 01: People listened. [00:01:04] Speaker 01: When she accompanied her signs with sinister appearing gestures, people listened. [00:01:09] Speaker 01: Likewise, when the Washington Post repeated her statements under the headlines, anti-Semitic photo involving Nazi salute. [00:01:18] Speaker 01: People listened, the post printed those stories in the news section, replete with quotations suggesting it was all true. [00:01:27] Speaker 01: But it wasn't true. [00:01:28] Speaker 01: The old photograph shows a group of fraternity members doing an American salute established in the 1890s. [00:01:36] Speaker 01: Members are a group of racially diverse fraternity members wearing t-shirts and jeans. [00:01:43] Speaker 06: The damaging statement is that [00:01:46] Speaker 06: the students were part of the face of systemic racism, right? [00:01:53] Speaker 06: That's the guts of this. [00:01:56] Speaker 01: In part, Your Honor, I think that's obviously the particular statement that the President offered in the post-Republic. [00:02:04] Speaker 06: So let's start with that. [00:02:06] Speaker 06: We have cases [00:02:09] Speaker 06: We have twice said, and the DC Court of Appeals has once said that the word fascist has a lot of very damaging connotations. [00:02:22] Speaker 06: It's emotionally loaded. [00:02:23] Speaker 06: We've said [00:02:26] Speaker 06: It means different things to different people. [00:02:30] Speaker 06: It's highly contestable. [00:02:32] Speaker 06: And that epithet can't support a defamation claim. [00:02:39] Speaker 06: And we've sort of analogized the epithet anti-Semitic to the word fascist. [00:02:46] Speaker 06: So how do you get over that? [00:02:49] Speaker 06: systemic racist charge as ugly and damaging as it is, isn't it like the fascist epithet? [00:02:59] Speaker 01: So first, Your Honor, I'd point to what this court said in FARA, which was the statement that the plaintiff must, sorry, which case? [00:03:06] Speaker 01: In FARA versus Esquire, this is us, 736 after 528. [00:03:10] Speaker 01: The statement that the plaintiff must prove false is not invariably the literal phrase published, but rather what a reasonable viewer would have understood the author or here the signer to have said. [00:03:23] Speaker 01: So in other words, I think focusing only on base of systemic racism misses the at least possible inferences that a reasonable viewer could have drawn from the statement, including that. [00:03:35] Speaker 06: So if she had simply said these fraternity, you know, this picture is up. [00:03:43] Speaker 06: Here's a picture. [00:03:44] Speaker 06: This is systemic racism, period, full stop. [00:03:47] Speaker 06: Would that be actionable? [00:03:50] Speaker 06: Or is that just an epithet? [00:03:52] Speaker 01: I think it could possibly be actionable because I think it's plausible that a reasonable viewer could have understood that to mean this conduct is racist. [00:04:02] Speaker 01: These people are racist. [00:04:04] Speaker 01: What they are doing in the picture is a racist gesture and here when a company with signs of a sinister appearing salute, this is a Nazi salute specifically. [00:04:16] Speaker 01: So, you know, I acknowledge that there is precedent about the general sort of fascist or racist label, but on the other hand, this court, [00:04:29] Speaker 01: and decision in Jeff says, actionable to signify that the plaintiff is a bigot, racially prejudiced, and scornful of the Negro race. [00:04:38] Speaker 01: That was at 655. [00:04:39] Speaker 01: And then, liberally lobbied, the courts wouldn't say the anti-Semitic had no core of meaning. [00:04:48] Speaker 01: And we've cited lots of other cases, particularly when that accusation is tied to conduct, as it is here. [00:04:54] Speaker 01: There is an implied [00:04:58] Speaker 06: maybe it's not implied, but there is a suggestion, it's key to specific conduct, might or might not help you, but why doesn't that just bring you within the cases where you have an opinion and the basis for the opinion is disclosed? [00:05:20] Speaker 06: the basis for the opinion is they are doing this symbol and people, the opinion is that it's racist and people can debate that. [00:05:31] Speaker 01: I think that that doesn't bring it within that exception because under DC law, the facts on which the opinion is based have to be disclosed in full, completely and accurately. [00:05:43] Speaker 01: So the Supreme Court said in Milkovich. [00:05:46] Speaker 01: But there's a picture here. [00:05:50] Speaker 06: Well, sure, but the president, you know, depicts worth a thousand words what they what the students were doing, which was the basis for the opinion that their face of systemic racism. [00:06:03] Speaker 01: Well, your honor, what's interesting is I think there's even case law. [00:06:07] Speaker 01: cited in the treatises we cite on the point that just showing a photograph can actually be defamatory because you're not disclosing adequately sort of the facts underlying the photograph. [00:06:20] Speaker 01: So for example, if you showed a 1910 photograph of school children doing the Bellamy salute as they recited the Pledge of Allegiance, to say those school kids were doing a Nazi salute would be false. [00:06:35] Speaker 01: It would just be false. [00:06:36] Speaker 01: And so the question here is, now that we are past that point in an era where there are multiple salutes, which arguably bear some similarities to each other, could it still be false? [00:06:50] Speaker 01: And I think the answer is yes. [00:06:52] Speaker 01: And courts commonly figure out whether particular actions were taken for racist reasons. [00:06:57] Speaker 01: I mean, that's the basis of Title VII. [00:07:00] Speaker 01: I don't fix Arlington Heights equal protection. [00:07:03] Speaker 01: So it's not that unusual for course to have to say was a particular action taken because because of race in terms of complete disclosure. [00:07:13] Speaker 01: You know the court, the Supreme Court of Milkovich said. [00:07:17] Speaker 01: If the facts disclosed are either incorrect or incomplete, the statement may still imply a false assertion of fact. [00:07:25] Speaker 01: I think here, coupled the president's statement, coupled with the claim that she had new information, coupled with the statement, this behavior is unacceptable, which I'll note the defendants in all of their briefing has never addressed that phrase. [00:07:40] Speaker 01: plausibly leads a reasonable viewer to say, this asserts a statement of fact about the fraternity members, that they were doing a particular action, a particular salute, a racist Nazi salute. [00:07:52] Speaker 06: With a bad motive? [00:07:55] Speaker 06: Is that the idea? [00:07:57] Speaker 06: I mean, that's an assertion of fact, like fact questions that come up every day, cases. [00:08:06] Speaker 06: But it might be broader than that, right? [00:08:09] Speaker 06: It might be some idea that regardless of their motive and regardless of the ancient history of the Bellamy salute, you just shouldn't be doing that kind of thing now that it's forever associated with something really ugly. [00:08:24] Speaker 01: Right, so I think your honor is right. [00:08:27] Speaker 01: I think there are actually two plausible meanings. [00:08:30] Speaker 01: One could be they are doing a Nazi salute. [00:08:32] Speaker 01: The other could be they are acting with racist motives. [00:08:35] Speaker 01: And I think either of them is plausibly defamatory of the individual plaintiffs. [00:08:41] Speaker 01: And the Second Circuit in Law of Liberty, in fact, said an accusation of racist motives underlying a racist slur. [00:08:50] Speaker 01: This is a case involving Joy Reid, the commentator. [00:08:54] Speaker 01: We're actionable. [00:08:55] Speaker 01: And I think the same logic applies here. [00:09:02] Speaker 01: So to continue on the second major argument here, which is, are the statements actionable? [00:09:11] Speaker 01: We've identified several statements from the president that we think the question before the court is, as Judge Edwards said in Weirich, whether a reasonable fact finder could conclude that a statement expressed or implied a verifiably false fact about the appellant. [00:09:26] Speaker 01: So the first statement. [00:09:29] Speaker 01: In our view, the president's statements implied that the members pictured are individually racist or at least performed a racist action. [00:09:38] Speaker 01: We cite lots of case law in 27 to 28 of the supplemental brief saying when an accusation of racism is tied to specific conduct is actionable because it can be proven true or false. [00:09:51] Speaker 01: The second, the president's statement, as I just said to Judge Katz, is implied that the members were performing a Nazi salute. [00:09:57] Speaker 01: The university's own lawyer verified that it was not a Nazi salute in 1994 after the fraternity discontinued its use. [00:10:06] Speaker 06: Is there a difference between the Nazi salute and the Bellamy salute? [00:10:12] Speaker 06: Is it the angle of [00:10:14] Speaker 01: right arm or what what is uh from from my from my understanding your honor uh it is partially the angle it is partially the way the palm is is held and and the rest of the arm um the the complaint alleges that [00:10:32] Speaker 01: the Nazis adopted a salute that had its origin in Roman use. [00:10:37] Speaker 01: And what the complaint specifically says is that salute bears some similarities to the Bellamy salute that had been adopted in the 1890s as the Pledge of Allegiance salute. [00:10:47] Speaker 01: I think bears some similarities is different than what sort of the district court said about a parent Nazi salute, which is that's the same thing. [00:10:57] Speaker 01: I don't think that's quite right. [00:10:58] Speaker 01: I don't think it's quite right to say [00:11:00] Speaker 01: that the sting from saying the Nazis adopted a salute that was based in Roman times that bore some similarities to this salute they were actually using has the same sting as just a parent Nazi salute, followed in the post story by all these quotes suggesting that it was true. [00:11:21] Speaker 01: I think the sting there is different. [00:11:23] Speaker 01: So even if you put aside the post sub headline that just said photo involving Nazi salute and looked in the text where they said apparent Nazi salute, I think the text is plausibly different. [00:11:39] Speaker 01: Finally, just briefly on of and concerning, [00:11:44] Speaker 01: Again, not once in the defendant's briefing have they addressed the president's reference repeated in the post that this behavior is unacceptable. [00:11:53] Speaker 01: This behavior plausibly refers to the conduct shown in the photo, the only known photo which shows everyone doing the same action. [00:12:01] Speaker 01: So this is different from the other group defamation cases because there's simply no way to say the statement could only apply to particular members in the photograph. [00:12:11] Speaker 06: tends to help you on the point that she's referring to the 34 students in the photo rather than the fraternity writ large, but it seems to be very, that is very clearly a statement of opinion. [00:12:27] Speaker 06: This is unacceptable. [00:12:29] Speaker 01: Certainly, this specific, this is unacceptable, but I think behavior underscores that she is making a, there is an implied, potentially implied statement of fact that what she is saying is that there is a racist salute or a Nazi salute happening. [00:12:47] Speaker 01: So for those reasons, I'd reserve. [00:12:50] Speaker 02: If we don't agree with, if we believe that the, I'm sorry about my throat. [00:12:55] Speaker 02: uh, we think that the statement refers to the paternity and not to the individuals. [00:13:01] Speaker 02: I mean, there's a fight over what they means. [00:13:04] Speaker 02: Is that it for you? [00:13:08] Speaker 02: For your side? [00:13:10] Speaker 01: Um, your honor, I think if if they refers to the [00:13:16] Speaker 01: Fraternity, I think you still have the other statement from the Washington Post, which says anti-Semitic photo. [00:13:23] Speaker 01: So I think that could only be read to apply to the photo, to the people in the photo who are all doing the same action. [00:13:31] Speaker 01: I also think that even setting aside they, I think the reference to this behavior points it at the behavior that's happening in what the president said are the pictures, but the complaint alleges is the only known photo [00:13:45] Speaker 01: from 1989 of the of the photograph. [00:13:48] Speaker 01: So I still think it is possible that a jury could find that a reasonable viewer would have viewed the statement as as specifically about the members understood to be pictured in the 1989 photo, even if they standing alone refer to Capigam and general. [00:14:07] Speaker 01: The remainder of my time. [00:14:09] Speaker 03: All right. [00:14:09] Speaker 03: Thank you, Mr. Z. [00:14:18] Speaker 04: Thank you, Judge Henderson, and may it please the court. [00:14:23] Speaker 04: President Cordano did not display the photo in her talk to her Gallaudet community. [00:14:31] Speaker 04: She didn't describe any photo as Nazi-like. [00:14:35] Speaker 04: She did not say a word about anti-Semitism. [00:14:40] Speaker 04: She made no factual statement whatsoever about a photograph. [00:14:45] Speaker 04: She referenced the photo. [00:14:47] Speaker 04: Reference the photo, Judge Katz, only to the extent of acknowledging its existence in, I'm not even sure what the right part of speech is, some sort of dependent clause. [00:14:58] Speaker 06: In referencing the photo, she used the phrase, face of systemic racism. [00:15:03] Speaker 06: And she said, this behavior is unacceptable. [00:15:06] Speaker 04: Correct. [00:15:08] Speaker 04: I agree with you. [00:15:09] Speaker 04: The guts of this case is the phrase, the face of systemic racism. [00:15:15] Speaker 04: That was a phrase used to discuss. [00:15:20] Speaker 04: Kappa Gamma, middle of a paragraph about Kappa Gamma, the suspension of Kappa Gamma, a review of other organizations, other fraternities and sororities on campus. [00:15:37] Speaker 06: We're on a motion to dismiss. [00:15:39] Speaker 06: Correct. [00:15:40] Speaker 06: So we're not, tell me if you disagree with this, but we're not here to [00:15:46] Speaker 06: adopt the most reasonable reading of these statements. [00:15:53] Speaker 06: The only question for us is whether a reasonable jury could interpret them in a way that's defamatory. [00:16:04] Speaker 04: I agree that the standard here is the hypothetical objective reasonable reader and not the actual subjective reader. [00:16:13] Speaker 04: And that's why I think all the allegations of harm in this case are really quite irrelevant to the of and concerning issue. [00:16:21] Speaker 04: I wanna add though an important point that my friends from the post made in their brief about the photograph and that is this. [00:16:28] Speaker 04: The photograph is just an example of a 90 year practice. [00:16:36] Speaker 04: Hundreds, perhaps thousands of Kappa Gamma alumni at one point [00:16:43] Speaker 04: on campus, use that salute. [00:16:46] Speaker 04: And so even if you think of the photo as representing some sort of behavior whose acceptability is at issue here, it's the behavior of hundreds or thousands of former Kappa Gamma [00:17:00] Speaker 06: members. [00:17:01] Speaker 06: And so that base of systemic racism is the conduct depicted in the photo. [00:17:08] Speaker 06: I would respectfully disagree that that what conduct, what unacceptable conduct is the face of systemic racism? [00:17:19] Speaker 04: The salute, the resumption of robes, which violated a 2015 policy. [00:17:27] Speaker 04: And whatever else may have been bandied about on social media, that's not alleged in the complaint. [00:17:33] Speaker 04: All we know is that there was social media chatter about recent events on campus involving Kappa Gamma, particularly in the context of the murder of George Floyd. [00:17:45] Speaker 06: Salute is the object of a long string of propositional phrases flowing from the word pictures. [00:17:52] Speaker 06: And the only picture we know about [00:17:55] Speaker 06: involving the salute is one of 34 students doing it. [00:17:59] Speaker 06: Correct. [00:18:00] Speaker 06: You don't think a reasonable jury could tie the face of systemic racism, unacceptable conduct, [00:18:10] Speaker 06: points to the students, the acts depicted in the photo? [00:18:16] Speaker 04: I don't think we ever get there, your honor. [00:18:19] Speaker 04: I don't think that's what this discussion was about. [00:18:22] Speaker 04: This was a discussion about the suspension of Kappa Gamma, review of other organizations, other fraternities and other sororities on campus, what their role in the campus community was and the overall [00:18:36] Speaker 04: social media response to all of these allegations about Kappa Gamma. [00:18:42] Speaker 04: I think it is a too literal, too narrow and artificial reading to say that the particular placement of the word they in an unattributed interpretation of ASL, which is essentially a foreign language as far as English goes. [00:19:00] Speaker 06: It is a foreign language. [00:19:03] Speaker 06: Point one, point two, the transcript, the version that the complaint says was the spoken version in ASL, it's a little bit garbled, right? [00:19:14] Speaker 06: Human speech is, I don't speak in beautiful sentences the way one writes. [00:19:21] Speaker 06: And so it seems like you're being a little artificial. [00:19:28] Speaker 06: parsing this oral statement coming from a foreign language as if it were a statute where, you know, we're doing fine judgments about the closest reasonable reference as opposed to just making a rough cut motion to dismiss judgment about what a jury, how a jury might read this. [00:19:51] Speaker 04: Well, we're not in ordinary motion to dismiss land here, Your Honor. [00:19:55] Speaker 04: We are in the arena of the First Amendment where such a discussion on a matter of public concern, the Supreme Court has told us, is entitled to special protection as uninhibited, robust, and wide open discussion. [00:20:13] Speaker 04: We have that on the one hand, a university president making a call to action [00:20:19] Speaker 04: university committee community on this terribly urgent issue of public concern and on the other hand we have the plaintiffs offering up this unattributed first first amendment law doesn't trump Twombly and Iqbal I'm sorry first amendment law doesn't trump Twombly and Iqbal you do have a [00:20:41] Speaker 06: favorable substantive standard if we get to the merits. [00:20:44] Speaker 04: Understood, Your Honor. [00:20:45] Speaker 04: And that's what I'm trying to say is I don't think this is just a plain vanilla, Iqbal and Twombly pleading issue here. [00:20:52] Speaker 04: I think this has to be considered under the gloss of the First Amendment to allow people like President Cordano speaking on urgent issues of public concern to speak in an uninhibited, robust and wide open fashion. [00:21:10] Speaker 04: Particularly where [00:21:12] Speaker 04: As you point out, she's talking about something that is not objectively verifiable. [00:21:19] Speaker 04: The allegation here, as I think you're interpreting it, Your Honor, is that these four people, personally, out of a 90-year history of this salute, have become the face of systemic racism as to an entire community. [00:21:38] Speaker 04: There's no way to verify that. [00:21:41] Speaker 03: That is classic. [00:21:43] Speaker 03: Theirs are the only faces. [00:21:46] Speaker 03: I'm sorry? [00:21:46] Speaker 03: Theirs, those 34 young men are the only faces. [00:21:52] Speaker 03: I mean, the word face, we can't ignore that. [00:21:59] Speaker 03: Well, I think it's a very metaphorical phrase. [00:22:01] Speaker 03: If she had said this is the behavior of systemic racism, but to use the word faces makes it human. [00:22:11] Speaker 03: And the only faces that we have are the faces of those 34 young men. [00:22:19] Speaker 04: Well, we have those faces in the sense that they chose to sue, but I think the face in context and language here is Kappa Gamma. [00:22:29] Speaker 04: The conduct of Kappa Gamma exemplified perhaps in this salute, as well as in the much more recent issue of the robes, [00:22:38] Speaker 04: has become associated in the public mind with racism at Gallaudet. [00:22:43] Speaker 04: All President Cordano was doing was observing what was being said on social media and offering essentially her opinion about public opinion. [00:22:52] Speaker 04: We call this commentary on commentary. [00:22:54] Speaker 04: She's looking at what other people are saying, expressing their own opinions, saying, here is how I would subjectively characterize [00:23:04] Speaker 04: what others are saying. [00:23:06] Speaker 04: And it is, I think, inherently, so inherently, a metaphorical, imaginative, rhetorical expression that despite Milkovich and despite any facts that are alleged to be the basis, and I actually believe there are no facts that are the basis other than perhaps the social media discussion itself, [00:23:31] Speaker 03: I don't remember her saying this is what social media is saying. [00:23:38] Speaker 04: Well, it's in the exact same clause that Judge Katz is referring to us. [00:23:44] Speaker 04: What is that? [00:23:49] Speaker 04: They have become the face of systemic racism in our community with photographs of the salute and use of the robes being shared on social media. [00:23:59] Speaker 04: serving the social media reaction, the opinions and commentary of others, and offering her own commentary on what they're saying in a way that is not objectively verifiable, that is not a statement of fact. [00:24:13] Speaker 06: Can I ask what you do with Jaffe? [00:24:19] Speaker 06: We're talking about the phrase systemic racism. [00:24:23] Speaker 06: It seems analogous. [00:24:26] Speaker 06: I mean, I was asking your friend about the word fascist, but it also seems analogous to the word bigot. [00:24:33] Speaker 06: And this court, sitting in bank when we had final control over DC law, said that charging someone with being a bigot did support a defamation claim. [00:24:49] Speaker 04: Your Honor, we discussed that in our brief. [00:24:51] Speaker 04: I think Jaffe is not only very outdated, years before the sort of modern law of the constitutional dimension of opinion, [00:25:03] Speaker 04: But it is also contrary to the vast majority cases decided since then. [00:25:10] Speaker 04: There is a consensus on this now. [00:25:12] Speaker 06: It's binding. [00:25:12] Speaker 06: It's as if it were a DC Court of Appeals opinion. [00:25:17] Speaker 04: I don't think it's binding after Ullman versus Evans in 1984, which actually set out a four-part test. [00:25:24] Speaker 06: In 1984, we didn't have final control over DC libel law. [00:25:31] Speaker 06: In 1966, we did. [00:25:33] Speaker 04: Even so, Your Honor, I think it is simply not the law in 2023 that's simply calling somebody a bigot. [00:25:41] Speaker 04: Unverifiable subject commentary. [00:25:46] Speaker 04: is actionable. [00:25:48] Speaker 04: And that's why, by the way, my friend on the other side accused us of cherry picking case law. [00:25:54] Speaker 04: I ordinarily don't string cite and tell it brief, but we cited 20 cases literally from sea to shining sea to say courts agree now calling somebody a racist, calling somebody a bigot, calling somebody anti-Semitic or homophobic, [00:26:11] Speaker 04: Those are subjective judgments. [00:26:12] Speaker 04: They are not objectively verifiable. [00:26:15] Speaker 04: They are not actionable in defamation. [00:26:20] Speaker 04: Unless there are any other questions, I see my time is up. [00:26:22] Speaker 03: All right. [00:26:22] Speaker 03: Thank you. [00:26:23] Speaker 04: Thank you, Judge. [00:26:25] Speaker 03: Mr. Gams. [00:26:26] Speaker 03: Mr. Gams. [00:26:38] Speaker 05: Your Honor has made it to the court. [00:26:40] Speaker 05: from Williams and Connolly, Washington Post. [00:26:44] Speaker 05: The Post article at issue here concerned a pre-existing public controversy, Gallaudet's suspension of historic fraternity, which the university's president said had become the face of systemic racism in the Gallaudet community. [00:26:57] Speaker 05: Those statements at issue, which are distinct from Gallaudet's, are not actionable for three reasons. [00:27:02] Speaker 05: First, they are not of and concerning the plaintiffs. [00:27:04] Speaker 05: Second, they are not verifiable subjective opinion. [00:27:08] Speaker 05: And third, to the extent they are verifiable, [00:27:10] Speaker 05: very substantially true. [00:27:12] Speaker 05: The district court here dismissed the statement says against the post on all three grounds. [00:27:20] Speaker 05: I'd like to begin with of a concerning unless the court would prefer a different word. [00:27:23] Speaker 06: Well, let me just start you with action ability, which is my biggest concern. [00:27:30] Speaker 06: So the key phrase he phrase vis-a-vis the post is anti Semitic and [00:27:40] Speaker 06: We have one of the Liberty Lobby cases, I think it was Judge Borks says, anti-Semitic can have substantive content to support a defamation claim, not always, but sometimes. [00:27:56] Speaker 06: So what do we make of that? [00:27:58] Speaker 05: Well, you have to consider the context of the entire article. [00:28:02] Speaker 05: Here, the article includes views from several different stakeholders regarding [00:28:09] Speaker 05: the salute and the robes. [00:28:12] Speaker 05: And so taken in context, anti-Semitic is clearly a reference to use of what is to the salute, which is described and criticized by several of the commentators. [00:28:26] Speaker 05: The article quoted Hillel of Gallaudet, which contended that the salute insulted the memory of millions of Jewish LGBT and disabled individuals and others who were murdered during the Holocaust, for example. [00:28:38] Speaker 05: It's clear from [00:28:39] Speaker 05: those statements, what the anti-Semitic phrase is referring to. [00:28:46] Speaker 05: It's referring to the raised arm salute in the post-World War II era. [00:28:50] Speaker 05: That's explicitly what Hillel's statement makes clear. [00:28:54] Speaker 05: And I would note also that, as the district court recognized, the languages phrased and language of appearance, such as [00:29:07] Speaker 05: such as it resembled a Nazi salute. [00:29:11] Speaker 05: It was KKK, resembled KKK guard. [00:29:14] Speaker 05: And this language helps to qualify and make clear that it is statements describing, excuse me, statements describing the norms and thinking about how these gestures are considered in post World War II public life. [00:29:31] Speaker 05: I'll note also that they were not only criticized by [00:29:35] Speaker 05: by Hillel, for example, but also not just by the university, but also by the fraternity itself. [00:29:41] Speaker 05: The Kappa Gamma International statement acknowledges, it was wrong for us to force this salute on our pledges no matter what is their background. [00:29:49] Speaker 05: Most of all, it was wrong for us to ignore the calls for its complete cessation. [00:29:53] Speaker 05: We have long since denounced these gestures. [00:29:55] Speaker 05: And so I think it's important to acknowledge, and there are similar statements which are conceded in the complaint, which notes that in 2016, the fraternity had [00:30:05] Speaker 05: had made clear that the gesture was denounced, was no longer consistent with the fraternity's standards of conduct, whether for pledges, current students, or even alumni. [00:30:20] Speaker 05: And that's a really significant concession in the complaint, which gave rise to the court's substantial truth-holding. [00:30:27] Speaker 05: I do want to make sure... Fair enough. [00:30:30] Speaker 06: There's a little bit of anachronism here. [00:30:34] Speaker 06: I mean, you know, probably today if students made that gesture, most people would react pretty strongly. [00:30:44] Speaker 06: And this is a 30-year-old photo. [00:30:46] Speaker 06: And rightly or wrongly, people were less sensitive at the time. [00:30:52] Speaker 06: And it might be perfectly plausible that they were following [00:30:59] Speaker 06: The old Bellamy tradition and the old fraternity tradition in good faith with no animus? [00:31:07] Speaker 05: How can we rule that out? [00:31:10] Speaker 05: Because the article is being published and interpreted in 2020, not in the pre-World War II era when the Bellamy salute was invented. [00:31:19] Speaker 05: And that's precisely why [00:31:22] Speaker 05: It was so harshly criticized. [00:31:24] Speaker 06: It's charging students who were acting in, whatever it was, 1989, 88. [00:31:30] Speaker 06: 1988? [00:31:34] Speaker 05: Yes. [00:31:36] Speaker 05: But it's important to bear in mind that the article is describing the suspension of the fraternity generally. [00:31:44] Speaker 05: Hillel's statement is concerning describing the use of the salute [00:31:49] Speaker 05: by the fraternity generally, not specifically with reference to the photograph. [00:31:54] Speaker 05: And that's really significant here because the photograph is being used as an example. [00:31:58] Speaker 05: An illustration, which speaks to why it's not the post article here and the statements at issue, are not specifically of and concerning these specific plaintiffs. [00:32:10] Speaker 05: Rather, the statements are describing a practice which plaintiffs admit was used for decades. [00:32:15] Speaker 05: There's no specific reference to [00:32:19] Speaker 05: to the plaintiffs that can be discerned from the post article. [00:32:24] Speaker 05: And it's important to bear that in mind because that is a third alternative reason to dismiss the case that is not of and concerning the plaintiffs and the case law requires. [00:32:34] Speaker 05: And again, you spoke earlier, Judge Katz, as to the period in which this court was speaking for the Court of Appeals. [00:32:41] Speaker 05: And that's true of the service parking case when the court held that when the court held that [00:32:47] Speaker 05: statements must be reasonably susceptible of special application to a given individual, which the court acknowledged was in part intended to ensure that there was appropriate balance with the social interest and free press discussion of matters of general concern. [00:33:04] Speaker 05: It's exactly what was happening in the post article here. [00:33:08] Speaker 05: I realize that my time has lapsed. [00:33:11] Speaker 05: I want to be respectful of that unless you have any questions. [00:33:14] Speaker 03: All right. [00:33:14] Speaker 03: Thank you. [00:33:24] Speaker 03: minutes. [00:33:25] Speaker 01: Thank you, Your Honor. [00:33:28] Speaker 01: Just to respond briefly, my friend says the president was giving her opinion about social opinion. [00:33:34] Speaker 01: But that's not what she was doing. [00:33:35] Speaker 01: She specifically brought up a specific photo, used signs that were sinister appearing, and said, this behavior is unacceptable. [00:33:42] Speaker 01: And later said, I made a mistake in shifting the focus away from systemic racism. [00:33:46] Speaker 01: Why? [00:33:47] Speaker 01: Because reasonable viewers understood her to be talking about the specific photograph, the only known photograph that matches her description. [00:33:55] Speaker 01: On Jaffe, Ullman cited Jaffe. [00:33:58] Speaker 01: It didn't overrule it. [00:33:59] Speaker 01: It didn't say it was wrong. [00:34:00] Speaker 01: It didn't say anything inconsistent with it. [00:34:02] Speaker 01: It's hard to reconcile. [00:34:04] Speaker 06: I mean, we couldn't have overruled it sitting post-TCCA getting the final authority, but it's very hard to reconcile the style and general approach of Ullman and Liberty Lobby with the thrust of Jaffe. [00:34:23] Speaker 01: Your Honor, I think this case avoids that problem because it bears on specific conduct. [00:34:29] Speaker 01: So the allegation, a reasonable viewer could have drawn from the President's and the Post's statements that the photo, as the Post subheadings said, involved a Nazi salute. [00:34:41] Speaker 01: It did not. [00:34:41] Speaker 06: A lot of these cases involving these terms [00:34:48] Speaker 06: turn on whether the epithet is supported by subsidiary allegations of fact, which can be testable. [00:35:00] Speaker 06: So if there's a false allegation of fact supporting the conclusion that this person's a racist, you can bring that claim. [00:35:08] Speaker 06: Is there a false predicate allegation here? [00:35:15] Speaker 01: So I think a false predicate is that [00:35:17] Speaker 01: It is a Nazi salute. [00:35:19] Speaker 01: I mean, I think that is something that can be historically considered and could be probed through discovery. [00:35:25] Speaker 01: Again, the university itself said in 1994 it was not a Nazi. [00:35:29] Speaker 01: So I think that is a factual. [00:35:31] Speaker 06: What if the predicate fact is it looks uncomfortably like a Nazi salute? [00:35:37] Speaker 06: That is either a true statement of fact or an opinion. [00:35:45] Speaker 01: I think that's not a matter to resolve on a motion to dismiss. [00:35:51] Speaker 01: I think you could say someone walking down the street in black boots was wearing apparent Nazi Jack boots, but that doesn't make it fair or true to say a person wearing Nazi Jack boot walking down DC Street. [00:36:05] Speaker 01: So I think that's the difference. [00:36:09] Speaker 01: This country faces real racial issues, so does Gallaudet. [00:36:12] Speaker 01: Lobbying false accusations of racist conduct diminishes, distracts from those real issues. [00:36:19] Speaker 01: And when those accusations are targeted at people, they're not protected by our law. [00:36:23] Speaker 01: The score should reverse and remand. [00:36:25] Speaker 03: Let me ask you, Mr. Mills, and this may be an unfair question, but [00:36:32] Speaker 03: What is your thought about whether these plaintiffs have a cause of action against the respective employers who fired them based on this? [00:36:47] Speaker 01: Your Honor, I know that one of the plaintiffs had brought suit in Massachusetts on some grounds. [00:36:55] Speaker 01: I think it would depend on the exact employment contracts and that type of thing. [00:37:03] Speaker 01: and the state laws governing employment. [00:37:08] Speaker 01: So I don't know that I can give you a better general answer. [00:37:12] Speaker 03: All right. [00:37:13] Speaker 03: You were appointed by the court, and we thank you for your superb representation.