Interesting campus First Amendment story
VOLOKH at law.ucla.edu
Wed Apr 11 17:04:47 PDT 2007
I thought I'd take the liberty of passing along a blog post of mine, http://volokh.com/archives/archive_2007_04_08-2007_04_14.shtml#1176335530 <http://volokh.com/archives/archive_2007_04_08-2007_04_14.shtml#1176335530> :
New Twist for University Administrators Who Want To Silence Criticism:
Sue the critics for intentional infliction of emotional distress - even if their criticism consists of distributing accurate public record information about you. Here's an excerpt from Fiacco v. Sigma Alpha Epsilon Fraternity <http://www.med.uscourts.gov/opinions/singal/2007/gzs_04052007_1-05cv145_fiacco_v_sigma_alpha.pdf> :
Plaintiff David Fiacco was hired by the University of Maine in Orono as the Director of Judicial Affairs in 2001. Fiacco was responsible for overseeing the process through which allegations of student misconduct were investigated, adjudicated and potentially sanctioned. Fiacco had the capacity to investigate allegations of student misconduct, adjudicate cases, conduct hearings himself and prescribe sanctions or refer a case to a committee for its action. In addition, as Director of Judicial Affairs, Fiacco helped develop policy statements regarding the student code of conduct for the University....
In the spring of 2002, the Maine Alpha chapter of SAE was being prosecuted for violations of the student code of conduct at the University [apparently involving $10,000 worth of stolen signs found at the SAE's house, as well as various safety violations, see Bangor Daily News, Sept. 20, 2005 -EV]. Fiacco, as the Director of Judicial Affairs, was in charge of investigating and processing the allegations on behalf of the University. Attorney N. Laurence Willey, Jr. was retained to aid in the defense of Maine Alpha. Willey, in turn, retained a private investigator, Victor Kraft, to look into Fiacco's background. While it is unclear who instructed Kraft or exactly how he was instructed, a small group, consisting of Sexton, Dill, Irace, Jamison and Nowak, met with Kraft and Wiley in the spring of 2002. Private Investigator Kraft then gathered the various documents.
These documents consisted of publicly available court documents and newspaper articles. The first set of court documents detail Weaver v. Fiacco, a legal proceeding that occurred in Colorado. Through this proceeding, Kelly Weaver, Fiacco's former girlfriend, sought and obtained a temporary and then a permanent restraining order against David Fiacco pursuant to the Colorado Domestic Abuse Act, §14-4-101 et seq.3 The second set of court documents and two newspaper articles discuss Fiacco's conviction of Driving While Ability Impaired (DWAI), where he had a blood alcohol content of .089 percent. Two additional newspaper articles reveal Fiacco's dismissal from his employment as director of public safety at Fort Lewis College in Colorado....
[SAE] then decided to distribute the documents to select individuals and newspapers within the University of Maine community. The group collaborated to draft a cover memorandum, which read:
Enclosed please find newspaper articles and court documents detailing Mr. Fiacco's previous legal difficulties: DWI, Sexual Harassment, and Domestic Violence. Is this honestly the best qualified candidate that the University of Maine could find for the Office of Judicial Affairs?
(emphasis in original). The documents were placed behind the memorandum and into plain manila envelopes, bearing no return address. The envelopes were then placed in a box and sent to an alumnus of Maine Alpha in Colorado. The alumnus then placed the envelopes in the mail to be sent to multiple recipients in the Maine. Peter S. Hoff, then- President of the University of Maine, the Board of Trustees of the University of Maine System, Dean Dwight Rideout, the Bangor Daily News and the Maine Campus all received a manila envelope containing the memorandum and documents. At the time the memorandum and documents were sent, proceedings continued against Maine Alpha, but Fiacco had been recused from participating in the proceedings.
Fiacco then sued SAE for a variety of charges boiling down to intentional infliction of emotional distress.
Fortunately, the court concluded that Fiacco was a public official or at least a limited public figure, and the statements about him were about matters of public concern, so that the First Amendment barred intentional infliction of emotional distress liability unless the statements about him were knowing or at least reckless falsehoods. (The Supreme Court's Hustler v. Falwell decision so held; whether such liability based on true statements or opinions is permissible where the subject is a private figure, or the statements are on matters of private concern, has not squarely been resolved, though the majority of lower court cases considering the subject have extended Hustler v. Falwell to all statements on matters of public concern, whether about public figures or not.)
The court also held that the statements about Fiacco were substantially true. And, finally, the court quite sensibly held that "Even if the First Amendment did not prevent recovery on this cause of action, the dissemination of truthful, publicly available documents is not sufficiently outrageous to permit recovery [as a matter of state tort law]."
My view: The SAE people sound like no saints, if the initial charges against them are correct (and they may well be). But whatever their possible sins, a high-level university official -- an official who has judicial responsibility -- shouldn't be trying to sue people or groups for telling the truth about him, a truth that may well bear on his suitability for his job.
I think the emotional distress tort should generally be abolished as to otherwise protected speech (i.e., speech that doesn't fit within the First Amendment exceptions, such as for threats, falsehoods said with a sufficiently culpable mental states, and the like). But wherever you stand on that, university administrators should have more respect than Mr. Fiacco has shown for students' freedom to criticize them, and to convey the truth at institutions where truth is supposed to be the paramount value.
David Fiacco "remains in his position as the Director of Judicial Affairs" at the University of Maine.
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