Turkish Coal. of Am., Inc. v. Bruininks

• Decision Date: 03 May 2012
• Docket Number: No. 11–1952.,11–1952.
• Citation: 40 Media L. Rep. 1775,279 Ed. Law Rep. 591,678 F.3d 617
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

678 F.3d 617

279 Ed. Law Rep. 591

40 Media L. Rep. 1775

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.

No. 11–1952.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 14, 2012.

Filed: May 3, 2012.

Bruce E. Fein, argued, Washington, DC, David Saltzman, Washington, DC, and Larry A. Frost, Bloomington, MN, on the brief, for appellants.

Brent P. Benrud, argued, Mark B. Rotenberg, on the brief, Minneapolis, MN, for appellees.

John W. Whitehead, Douglas R. McKusick, Charlottesville, VA, on the amicus brief of The Rutherford Institute.

David S. Weissbrodt, Minneapolis, MN, on the amicus brief of Carol L. Chomsky, Jennifer Green and Robert A. Stein.

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.

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 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.¹ 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.

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 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 “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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 107 S.Ct. 1862, 95 L.Ed.2d 415 (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, 107 S.Ct. 1862. 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, 107 S.Ct. 1862. Nevertheless, the Court found that he alleged a cognizable injury based on his allegation that “his...