Florio v. Gallaudet University

Court: U.S. Court of Appeals for the District of Columbia Circuit

Date Filed: Nov. 3, 2023

Update: On Nov. 7, 2023, the U.S. Court of Appeals for the District of Columbia Circuit denied the Reporters Committee’s motion for leave to file the friend-of-the-court brief.

Background: In 2020, The Washington Post published a story reporting that Gallaudet University had suspended a campus fraternity over concerns about a history of allegedly racist conduct, including the wearing of ceremonial hooded robes and use of a salute widely linked to Nazis. The story included a reference to a 1988 photograph that had in recent years circulated on social media, which depicted fraternity members performing what appeared to be the Nazi salute. The newspaper did not publish the photo, link to it, or name any of the fraternity members pictured in it.

Four fraternity alumni (two of whom were pictured in the old photo) nevertheless filed a defamation lawsuit against the university and The Post for referencing the photo.

The U.S. District Court for the District of Columbia dismissed the lawsuit on several grounds.  Among their holdings was that the plaintiffs’ claims were barred by what’s known as the “group libel doctrine.” Under that doctrine, a member of a group bringing a libel claim must establish that the defamatory statement was “of and concerning” the plaintiff, rather than a comment about the group.

The fraternity alumni appealed to the U.S. Court of Appeals for the District of Columbia Circuit. During a supplemental round of briefing, after the D.C. Circuit appointed amicus to brief issues in support of the alumni appellants, the Reporters Committee filed a brief discussing the importance of the “of and concerning” requirement to reporting on matters of public concern, much of which involves reporting on large groups and movements.

Our Position: The appeals court should affirm the district court’s holding that the alleged defamation is not “of and concerning” the plaintiffs.

• An alleged libel must be “of and concerning” the particular plaintiff who is suing, and a criticism of a group to which the plaintiff belongs does not itself defame the plaintiff. This rule against group libel is vital to protecting news reporting.
• Neither narrow exception to the rule against group libel applies to the news reporting here. Specifically, under D.C. law, the group of fraternity alumni is not small enough for the “small group” exception, and there was nothing in the challenged statements that applied any particular defamatory statements to these fraternity members.

Quote: “The group libel doctrine protects the ability of the press to perform its constitutionally recognized and protected role of keeping the public informed about matters of public concern. If the long-standing rule against group libel were abandoned or weakened, courts would see an ‘unwarranted proliferation of litigation’ — including litigation arising out of news reporting about organizations and groups — that would come with a significant ‘cost to free expression.’”