Turkish Coalition of America, Inc.; Sinan Cingilli v. Robert Bruininks, in his individual capacity

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 11-1952
________________
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.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Appeal from the United States
District Court for the
District of Minnesota.

-- 1 of 13 --

_______________
Submitted: February 14, 2012
Filed: May 3, 2012
________________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
________________
GRUENDER, Circuit Judge.
Sinan Cingilli, a student at the University of Minnesota, and Turkish Coalition
of America, Inc. (“TCA”), a non-profit corporation that provides information about
the nation of Turkey and Turkish-Americans, appeal the district court’s dismissal of
their respective First Amendment claims and TCA’s state-law defamation claim for
failure to state a claim. We affirm with respect to TCA’s First Amendment and
defamation claims. With respect to Cingilli’s First Amendment claim, we vacate and
remand for dismissal due to lack of standing.
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.
-2-

-- 2 of 13 --

The “Unreliable Websites” list included websites disputing the factuality of the Nazi
genocide of Jews during World War II and the Turkish genocide of Armenians during
World War I. It mentioned no websites relating to other genocides, although it listed
general internet reference sources such as Wikipedia and About.com. The first
“Unreliable Website” on the list was that of TCA. In late 2008 or early 2009, TCA
sent a letter to the university alleging that the inclusion of TCA’s website, coupled
with the warning to students, violated the First Amendment. The university
responded in August 2009 that the listing was merely the Center’s opinion and that
students remained free to access the TCA website.
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
-3-

-- 3 of 13 --

because Professor Chaouat did not want to “promote, even negatively, sources of
illegitimate information.”
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. The district court dismissed all claims for failure to state a1
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.
II. Standing
The district court erred in assuming without deciding that the requirements of
standing were met, because “standing is a jurisdictional prerequisite that must be
resolved before reaching the merits of a suit.” City of Clarkson Valley v. Mineta, 495
F.3d 567, 569 (8th Cir. 2007). In addressing standing, “the court must accept all
factual allegations in the complaint as true and draw all inferences in the plaintiff’s
favor.” Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840,
843 (8th Cir. 2005). Standing requires (1) an injury that is “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical,” (2) that the
injury “be fairly traceable to the challenged action of the defendant,” and (3) that it
is “likely, as opposed to merely speculative, that the injury will be redressed by a
The Complaint sought damages on the constitutional claims against solely1
President Bruininks and Professor Chaouat in their individual capacities. See
Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (“[T]he University of
Minnesota is an instrumentality of the state and entitled to share in the state’s
Eleventh Amendment immunity.”).
-4-

-- 4 of 13 --

favorable decision.” Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381
F.3d 785, 791-92 (8th Cir. 2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-61 (1992)).
A. Cingilli
Cingilli makes no allegation that the defendants have taken any action to
prevent him from accessing the TCA website at his will. Instead, he alleges that he
fears retaliation, in the form of lowered grades or other detriment to his academic
standing, if he uses the website for a research paper. He relies on the proposition that,
in the context of a First Amendment claim, “actual injury can exist for standing
purposes even if the plaintiff has not engaged in the prohibited expression as long as
the plaintiff is objectively reasonably chilled from exercising his First Amendment
right to free expression in order to avoid enforcement consequences.” Id. at 792. His
argument fails, however, because the Complaint does not allege that Professor
Chaouat has any ability whatsoever to influence Cingilli’s academic standing.
In his reply brief, Cingilli urges that, despite an absence of control over any of
Cingilli’s grades, Professor Chaouat might be able to affect his academic standing
because “professors regularly communicate to one another about work-related issues,
such as . . . troublesome students.” Even treating this generously as an inference one
might draw from the Complaint, it is far too speculative to establish an objectively
reasonable chilling effect. See Klobuchar, 381 F.3d at 791-92. As we noted in a
similar situation, “Plaintiffs claim that they have thoroughly described why . . . the
statute could be easily manipulated, and the possible motives police may have to [do
so] . . . . Even so, they fail in the key respect of asserting that peace officers in fact
initiate retaliatory prosecution . . . .” Zanders v. Swanson, 573 F.3d 591, 594 (8th Cir.
2009) (finding no standing for plaintiffs’ First Amendment claims). Likewise, in the
instant case, there are no factual allegations that Professor Chaouat or other
professors at the University of Minnesota in fact reach out to lower the grades of
-5-

-- 5 of 13 --

“troublesome” students in classes taught by others. In the same fashion, while
President Bruininks conceivably could intervene to lower Cingilli’s grades or deny
him other academic benefits, there is no allegation that he in fact engages in such
practices. As a result, Cingilli has not “nudged [his] claims across the line from
conceivable to plausible.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
Because Cingilli fails to plead facts sufficient to demonstrate an objectively
reasonable chilling effect, he has not established standing to pursue a First
Amendment claim under these circumstances.
B. TCA
TCA argues that it has standing to pursue a First Amendment claim because the
labeling of its website as “unreliable,” and the inclusion of it on the same list as
websites denying the Holocaust perpetrated by the Nazis in World War II, stigmatized
TCA. TCA relies on Meese v. Keene, 481 U.S. 465 (1987), in which a California
attorney serving as a state senator wished to show Canadian films purporting to
address the effects of nuclear war and acid rain. Because the films met the definition
of “political propaganda” under the Foreign Agents Registration Act of 1938,
however, the state senator feared damage to his public reputation as a “disseminator
of foreign political propaganda.” Id. at 467. He filed suit on First Amendment
grounds to enjoin the application of the Act. The Court acknowledged that the Act
did “not have a direct effect on the exercise of his First Amendment rights” because
it did “not prevent him from obtaining or exhibiting the films.” Id. at 473.
Nevertheless, the Court found that he alleged a cognizable injury based on his
allegation that “his personal, political, and professional reputation would suffer and
his ability to obtain re-election and to practice his profession would be impaired.” Id.
-6-

-- 6 of 13 --

Several courts have found that, under Meese, a non-profit organization that
alleges an injury to reputation through stigmatizing government speech has Article
III standing to bring a constitutional claim:
The fact that an injury to the reputation of an organization such as
SMHA can serve as a basis for standing has been recognized at least
since Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123
(1951) (plurality opinion). In that case, the Supreme Court stated that
the effect of designating the complaining organizations as “Communist”
was to “cripple the functioning and damage the reputation of those
organizations in their respective communities and in the nation.” Id. at
139 (principal opinion) (Burton, J.); see id. at 140-41.
S. Mut. Help Ass’n, Inc. v. Califano, 574 F.2d 518, 524 (D.C. Cir. 1977); see also
Riggs v. City of Albuquerque, 916 F.2d 582, 583-85 (10th Cir. 1990) (holding that
plaintiff “politically active organizations who, it was alleged, have often taken
controversial and unpopular positions” pled a cognizable injury for standing purposes
where they “allege[d] harm to their personal, political, and professional reputations
in the community”). We agree that TCA similarly has pled a cognizable injury here.
As a result, TCA has standing to pursue its First Amendment claim.
III. TCA’s First Amendment Claim
Although it has standing, TCA nevertheless fails to state a First Amendment
claim under Rule 12(b)(6). The grant of a motion to dismiss is reviewed de novo.
Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008). “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) (quoting Bell Atl. Corp., 550 U.S. at 570).
-7-

-- 7 of 13 --

TCA contends that an advocacy organization’s First Amendment right to
express its ideas, as well as the First Amendment rights of others to receive those
ideas, are violated when a state university professor opines that the organization’s
materials are unreliable and warns students that using those materials in a research
paper will result in bad grades. To support its contention, TCA relies primarily upon
three Supreme Court cases. Examining each of those three cases in turn, however,
convinces us that the complained-of conduct, without more, does not rise to the level
of a First Amendment violation.
First, TCA relies on Board of Education, Island Trees Union Free School
District No. 26 v. Pico, 457 U.S. 853 (1982), in which secondary school students
challenged a school board’s removal of certain books from school libraries. In Pico,
the Supreme Court, citing the “right to receive ideas,” id. at 867, ruled that the First
Amendment was violated if the school board members “intended by their removal
decision to deny [students] access to ideas with which [the school board] disagreed,
and if this intent was the decisive factor in [the] decision,” id. at 871. TCA argues
that, following Pico, they have stated a First Amendment claim with their allegation
that the Center’s intent in warning students about the TCA website was to deny
access to ideas with which the Center disagreed.
The key distinction in Pico is that the books actually were removed from the
libraries, substantially impairing the students’ ability to access the ideas they
contained. See id. at 866 (“[T]he State may not, consistently with the spirit of the
First Amendment, contract the spectrum of available knowledge.” (quoting Griswold
v. Connecticut, 381 U.S. 479, 482 (1965))). Here, in contrast, “the spectrum of
available knowledge” for students at the university was unaffected. There is no
allegation that the defendants impaired students’ access to the TCA website on a
university-provided internet system. There is no hint in the Complaint that university
students were not free to, for example, read the TCA website, email material from the
TCA website to their friends, regale passers-by on the sidewalk with quotes from the
-8-

-- 8 of 13 --

TCA website, and so forth. In short, TCA’s website was not “removed” from the
university in any sense.
Second, TCA relies on Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), in
which book publishers challenged a state statute empowering the “Rhode Island
Commission to Encourage Morality in Youth” to declare certain books to be
“objectionable.” Id. at 61. When the Commission identified an objectionable book,
it notified the in-state wholesale distributor of the book that the Commission had a
duty to recommend prosecution if the Commission viewed the book as obscene. Id.
at 62. The Commission typically sent local police officers to inquire what actions the
distributor took as a result of the notice. Id. at 63. Distributors subjected to this
practice routinely decided to cease their distribution of the challenged book without
waiting to see if prosecution was recommended. Id. at 63-64.
TCA contends that here, as in Bantam Books, while the state actor did not
directly block access to the disfavored material, the state actor’s actions chilled others
into avoiding the materials. Importantly, however, the Court in Bantam Books found
a violation of the First Amendment only because the government actor’s “acts and
practices directly and designedly stopped the circulation of publications in many parts
of Rhode Island.” Id. at 68. In other words, in 1963, if a book’s wholesale distributor
decided not to distribute it, it became physically unavailable. In contrast, as discussed
above, there is no allegation that the challenged actions here made TCA’s website
unavailable to students at the university.
Finally, TCA contends that Meese v. Keene established the proposition that
“[g]overnment aspersion on speech to cast suspicion on its credibility with an actual
or potential audience is a cognizable First Amendment restriction.” While the state
senator in Meese successfully established standing, however, his First Amendment
challenge failed on the merits because the Act did “not pose any obstacle to [his]
access to the materials he wishes to exhibit.” 481 U.S. at 480. Likewise, here there
-9-

-- 9 of 13 --

is no obstacle to accessing any materials TCA wishes to exhibit on its website; there
is merely an obstacle to citation of the material in students’ research papers.
Schoolwork submitted for grading is designed to please an audience of one—the
grader—and TCA’s attempt to cast this narrow restriction on re-use of its material as
a universal ban on distribution is unsupportable. While the Center warned against
that narrow type of re-use, it “place[d] no burden on protected expression” by TCA.
See id.
In light of the absence of allegations that the challenged actions posed an
obstacle to students’ access to the materials on TCA’s website or made those
materials substantially unavailable at the university, the Rule 12(b)(6) dismissal of
TCA’s First Amendment claim must be affirmed.
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.
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
-10-

-- 10 of 13 --

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.
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.
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
-11-

-- 11 of 13 --

objective, fact-based measurement of these qualities. See Geraci, 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).
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. To be sure, “[w]ords, which taken by themselves have2
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, 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.”).
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.
TCA apparently defines “scholastic fraud” as an intentional falsification in a2
published scholarly work.
-12-

-- 12 of 13 --

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.
_____________________________
-13-

-- 13 of 13 --