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TURKISH COALITION OF AMERICA, INC.; Sinan Cingilli, Appellants,
v.
Robert BRUININKS, in his individual capacity; Bruno Chaouat, in his individual capacity; University of Minnesota, Appellees.
The Rutherford Institute, Amicus on behalf of Appellants,
Carol L. Chomsky; Jennifer Green; Robert A. Stein, Dean; David Samuel Weissbrodt, Professors Concerned for Academic Freedom, Amici on behalf of Appellees.
v.
Robert BRUININKS, in his individual capacity; Bruno Chaouat, in his individual capacity; University of Minnesota, Appellees.
The Rutherford Institute, Amicus on behalf of Appellants,
Carol L. Chomsky; Jennifer Green; Robert A. Stein, Dean; David Samuel Weissbrodt, Professors Concerned for Academic Freedom, Amici on behalf of Appellees.
Filed: May 3, 2012.
I. Background
Defendant Professor Bruno Chaouat directs the Center for Holocaust and Genocide Studies (“Center”) at the University of Minnesota. Prior to November 2010, the Center's website displayed a list of “Unreliable Websites.” The preface to the list stated:
We do not recommend these sites. Warnings should be given to students writing papers that they should not use these sites because of denial, support by an unknown organization, or contents that are a strange mix of fact and opinion. We also do not advise using sites with excessive advertising.
According to the Complaint, on November 5, 2010, Cingilli, then a freshman at the university, sought out Professor Chaouat and asked about using the TCA website “in conjunction with a research paper.” Professor Chaouat “strongly discouraged” such use of the website and “repeatedly refused to deny that there would be academic consequences” for Cingilli if he did so. Cingilli was “afraid to use” the TCA website after this exchange. Notably, however, the Complaint does not suggest that Cingilli was enrolled in a class with Professor Chaouat or that the professor was otherwise in a position to affect Cingilli's grades or academic standing.
Following Cingilli's meeting with Professor Chaouat, TCA sent a demand letter to the university with a draft complaint attached. On November 18, 2010, the Center revised its website, removing the list of unreliable websites and offering “recommended” resources instead. The university sent a letter to TCA denying that the change was motivated by the demand letter and denying any wrongdoing. The letter also stated that the university would “not permit any kind of retaliation” against Cingilli and that all students “are evaluated based upon the quality of their academic work.” Articles about the dispute appeared in two newspapers, and on November 24, Professor Chaouat posted a “Response to ‘Unreliable Websites' ” on the Center's website. The response stated that the “Unreliable Websites” list was removed because Professor Chaouat did not want to “promote, even negatively, sources of illegitimate information.”
*2 A week later, TCA and Cingilli filed this suit alleging various constitutional claims and state-law defamation against the university, its president Robert Bruininks, and Professor Chaouat.FN1 The district court dismissed all claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), holding that the doctrine of academic freedom protected the actions of all defendants and that the alleged defamatory statements were solely matters of opinion. The district court also stated that “it does not appear” that the requirements of Article III standing were satisfied, although it did not analyze the issue. TCA and Cingilli appeal only the dismissal of the First Amendment and defamation claims.
***
IV. TCA's Defamation Claim
TCA alleges that the defendants defamed it by stating that TCA's website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” The defendants counter, and the district court agreed, that these are statements of opinion, rather than fact, and thus cannot support a claim of defamation.
[9] 
[10] [11] [12] Under Minnesota law, “[a] statement is defamatory if it (1) has been communicated to a third party; (2) is false; and (3) tends to harm the individual's reputation and lowers him or her in the community's estimation.”Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn.Ct.App.1995). With regard to the element of falsity, “[t]ruth is a complete defense, and true statements, however disparaging, are not actionable.” Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.Ct.App.1989). Notably, “statements about matters of public concern not capable of being proven true or false and statements that cannot be interpreted reasonably as stating facts are protected from defamation actions under the First Amendment.” Geraci, 526 N.W.2d at 397. Whether a statement can be interpreted as stating facts is a question of law. Id.
[10] [11] [12] Under Minnesota law, “[a] statement is defamatory if it (1) has been communicated to a third party; (2) is false; and (3) tends to harm the individual's reputation and lowers him or her in the community's estimation.”Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn.Ct.App.1995). With regard to the element of falsity, “[t]ruth is a complete defense, and true statements, however disparaging, are not actionable.” Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.Ct.App.1989). Notably, “statements about matters of public concern not capable of being proven true or false and statements that cannot be interpreted reasonably as stating facts are protected from defamation actions under the First Amendment.” Geraci, 526 N.W.2d at 397. Whether a statement can be interpreted as stating facts is a question of law. Id.
*6 [13] With regard to the first challenged statement, TCA argues that the Center's accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA's interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions.See Geraci, 526 N.W.2d at 397. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center's statement under this interpretation is true and, thus, still not actionable. See Foley,449 N.W.2d at 500.
With regard to the first challenged statement, TCA argues that the Center's accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA's interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions.See Geraci, 526 N.W.2d at 397. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center's statement under this interpretation is true and, thus, still not actionable. See Foley,449 N.W.2d at 500.
[14] The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts. The qualities of being reliable (“trustworthy, safe sure”), strange (“[u]nusual, abnormal”), and illegitimate (“irregular, abnormal”), see New Shorter Oxford English Dictionary 2536, 3083, 1309 (4th ed.1993), each are in the eye of the beholder, and they did not appear in a context that would provide an objective, fact-based measurement of these qualities. SeeGeraci, 526 N.W.2d at 397–98 (affirming that statements that the plaintiff “had poisoned the board,” was “out of control,” “a bad influence,” “emotional,” and “not a team player” could not reasonably be interpreted as stating facts).
The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts. The qualities of being reliable (“trustworthy, safe sure”), strange (“[u]nusual, abnormal”), and illegitimate (“irregular, abnormal”), see New Shorter Oxford English Dictionary 2536, 3083, 1309 (4th ed.1993), each are in the eye of the beholder, and they did not appear in a context that would provide an objective, fact-based measurement of these qualities. SeeGeraci, 526 N.W.2d at 397–98 (affirming that statements that the plaintiff “had poisoned the board,” was “out of control,” “a bad influence,” “emotional,” and “not a team player” could not reasonably be interpreted as stating facts).
[15] TCA nevertheless argues that the four statements, taken together in context, imply a charge of scholastic fraud against TCA, and that scholastic fraud is capable of being proved true or false.FN2 To be sure, “[w] ords, which taken by themselves have an innocent meaning, in connection with surrounding circumstances, may convey a defamatory meaning to those familiar with such circumstances.” Gadach v. Benton Cnty. Co-op. Ass'n, 236 Minn. 507, 53 N.W.2d 230, 232 (Minn.1952). In such cases, “[w]hether a defamatory meaning is conveyed is dependent upon how ordinary men understand the language used in the light of surrounding circumstances.” Id. Here, however, the statements in context would not suggest to an ordinary listener that the speaker intended to level specific charges of scholastic fraud against TCA, Wikipedia, or the other listed websites, not least because websites in general are not ordinarily viewed as scholarly works. This is particularly true of an advocacy website like the TCA site. See, e.g., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (“[A] company's website is a marketing tool. Often, marketing material is full of imprecise puffery that no one should take at face value.”).
TCA nevertheless argues that the four statements, taken together in context, imply a charge of scholastic fraud against TCA, and that scholastic fraud is capable of being proved true or false.FN2 To be sure, “[w] ords, which taken by themselves have an innocent meaning, in connection with surrounding circumstances, may convey a defamatory meaning to those familiar with such circumstances.” Gadach v. Benton Cnty. Co-op. Ass'n, 236 Minn. 507, 53 N.W.2d 230, 232 (Minn.1952). In such cases, “[w]hether a defamatory meaning is conveyed is dependent upon how ordinary men understand the language used in the light of surrounding circumstances.” Id. Here, however, the statements in context would not suggest to an ordinary listener that the speaker intended to level specific charges of scholastic fraud against TCA, Wikipedia, or the other listed websites, not least because websites in general are not ordinarily viewed as scholarly works. This is particularly true of an advocacy website like the TCA site. See, e.g., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (“[A] company's website is a marketing tool. Often, marketing material is full of imprecise puffery that no one should take at face value.”).
*7 Because the challenged statements either are true or cannot reasonably be interpreted as stating facts, the Rule 12(b)(6) dismissal of TCA's defamation claim also must be affirmed.
V. Conclusion
For the foregoing reasons, we affirm with respect to TCA's First Amendment and defamation claims, and we vacate and remand for dismissal due to lack of standing with respect to Cingilli's First Amendment claim.
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