An opinion was released in case 22-7117, Michelle Florio 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

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 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.

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

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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

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.

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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.

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,

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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

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

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

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

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

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

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

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.

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.

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.