pageok
pageok
pageok
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:

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. 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.

UPDATE: Some commenters disagree with my condemnation of Fiacco on the grounds that the SAE people seemed to have been motivated by a desire to retaliate against him. But so what?

Maybe they were just upset that he was taking them to task. Maybe they thought he had behaved badly in the proceedings against them, and saw themselves as blowing the whistle on his poor character. (I don't know why he had been recused from the proceedings, and who if anyone was at fault in that.) It doesn't matter. People are, and should be, free to tell the truth about university officials, without being dragged into court and having to spend tens of thousands of dollars in legal fees. And university administrators should not sue students and student groups who reveal the truth about them (even if they are suing with their own money, as seems to have been the case here).

There was once a different rule, at least in criminal libel cases and in some jurisdictions in civil libel cases, too: Even true statements could be punished as libel if the defendant couldn't prove that he spoke "with good motives and for justifiable ends." But the Supreme Court rightly rejected this, reasoning:

Debate on public issues [including the character and behavior of public officials -EV] will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded." Moreover, "[i]n the case of charges against a popular political figure ... it may be almost impossible to show freedom from ill-will or selfish political motives."
Or, as the Court said in Hustler v. Falwell, "in the world of debate about public affairs [again, including the character and behavior of public figures -EV], many things done with motives that are less than admirable are protected by the First Amendment." University officials who sue students and student groups for telling the truth about them deserve to lose in court, and to be condemned by the public.

Related Posts (on one page):

  1. Priceless:
  2. University Administrator Suing Student Group:
  3. New Twist for University Administrators Who Want To Silence Criticism:
BobNSF (mail):

New Twist for University Administrators Who Want To Silence Criticism


New Twist in Criminal Defense -- dig up all the dirt you can on prosecutors, witnesses, judges. A lot easier than defending your clients.

Oh, and for irony, SAE's creed: The True Gentlemen
4.11.2007 9:57pm
Ella:
While I think the court made the right decision, it's disingenuous to condemn Mr. Fiacco for bringing the claim. The students and their attorney clearly weren't motivated by a desire to promote the integrity of the school's disciplinary process or even to fairly criticize a university administrator. They embarked on a deliberate campaign to personally attack Mr. Fiacco in an apparent effort to derail or undermine the proceedings against them. They didn't even have the decency to bring the facts forward publicly. They hid behind anonymous letters.

If these cowards want to sling mud, they shouldn't be shocked when someone slings back. And if they had to spend some more money in attorney's fees, that's the price you pay for playing such a vile game.
4.11.2007 10:02pm
whit:
i don't think its disingenuous to condemn fiacco for bringing the claim.

his claim was that they disseminated PUBLIC RECORDS information about him, which made him feel bad?

if that's not protected free speech, what is?
4.11.2007 10:05pm
Ella:
Whit - Professor Volokh criticized Mr. Fiacco for bringing the claim because he was disrespecting students' "freedom to criticize" school adminstrators. Reread the story- the students weren't criticizing, they were attempting to intimidate and embarass Mr. Fiacco and the university in a desparate (and I pray ineffective) ploy to derail the case against them. Yes, it's protected speech, but it's hard to imagine classifying the victim's reaction to such vile behavior as "disrespectful."
4.11.2007 10:15pm
whit:
i disagree. they were criticizing a guy whose JOB is to make judicial decisions about students, by bringing up his OWN criminal and civil record.

First of all, even if they were doing it just to be mean, it still should not result in a lawsuit - it's public info.

Second of all, the students were using entirely relevant information to make a point. that sounds like pretty fair criticism to me.

the point is valid. he was trying to sue them for SPEAKING THE TRUTH about him, even more importantly - truth that is a matter of PUBLIC RECORD.
4.11.2007 10:21pm
whit:
[An earlier comment, now deleted because the commenter wanted his name removed from it, said:-EV
According to the opinion, the student group waited until after Fiacco had been recused from the case before distributing the information. That suggets less of a motive to influence the process and more of a desire to share information with the community that directly bears on this guy's ability to do his job. While frat pranks may well be sophomoric, Fiacco's attempt to stifle critical student speech that is legitimatly directed at his qualifications for office seems like a far greater injustice.]

exactly. i'm not saying i necessarily believe that the student's intent was lofty. i'm saying it's kinda irrelevant. all they did was disseminate public information about the guy.

let's assume the worse case scenario in regards to them . they did it to be mean. they wanted to harm his reputation.

again... so what?

nobody should be subject to a lawsuit for disseminating information about a person that is a matter of public record.

heck, any dingdong with 5 minutes and a computer probably could have accessed this information on fiacco via the internet.
4.11.2007 10:55pm
Ella:
Whit

I don't want to get in a protracted debate about this. Clearly, we see things differently. I agree they were within their legal rights. I just don't care if they had to spend money "vindicating" those rights and don't think their actions are deserving of any respect from their target. Moreover, I don't think Mr. Fiacco's suit was symptomatic of a larger trend of administrators supression criticism. I think it was a natural reaction by someone who was the target of a cowardly, anonymous attack. IF they were concerned about the integrity of the disciplinary process or Mr. Fiacco's job performance or qualifications they could have sent the "brown files" out under their signatures OR they could have approached Mr. Fiacco's bosses directly. They did not. They sent it out anonymously in a transparent attempt to derail the disciplinary process. They chose to act dishonorably and some of their mud splashed back on them. Maybe they learned a lesson.
4.11.2007 11:04pm
whit:
people should not have to spend money VINDICATING their right to free speech. i find it telling that you use the word "vindicating" in scare quotes.

a natural reaction of a school administrator whose very job is to administer justice (iow, he knows something about the law theoretically) should not be to try to scare people into giving up their first amendment rights.

whether or not they acted dishonorably, they acted legally and constitutionally and their behavior is rightly protected. and fiacco tried to suppress their rights by suing them for exercising them.

it really is that simple.

what lesson did they learn? that the first amendment doesn't matter to college administrators?

that's been apparent for years.
4.11.2007 11:10pm
Delurking (mail):
How far the Society of Automotive Engineers has fallen. From building cars to stealing road signs. What a shame.
4.11.2007 11:11pm
Ella:
Whit-

He's the director of student discipline, not an attorney or judge. He likely knows very little or nothing about constitutional law. He also didn't act in his capacity as college administrator when he filed the suit, nor did the college bankroll his private lawsuit. He was no more supressing their right to free speech than anyone who files a defamation lawsuit. And the lesson they learned is there are consequences when you do stupid, vindictive things. Just because you have the right to do something doesn't mean you should and just because the government has to recognize that right doesn't mean that private individuals won't fight back. And just to be clear, I agree with the ruling, I just disagree with Professor Volokh's characterization of Mr. Fiacco's actions.

(And I wasn't using scare quotes - I was using sarcasm quotes:)
4.11.2007 11:36pm
whit:
ella, per the first sentence of the OP's post...

" 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. "

i think that pretty much supports what i said. i didn't say he was an attorney or judge. i said his job was to ADMINISTER JUSTICE. try reading my post again.

and how is it a DEFAMATION suit, when it is THE TRUTH.

the first defense to slander/libel is that you are speaking the truth. so, he knew darn well it was not defamation.

and there should not be LEGAL consequences (like being sued) for exercising your first amendment rights.

i am not saying they should have done what they did. that's debatable, and a moral question

i am saying what they did was CONSTITUTIONALLY protected free speech, and in a free society that should not something you get sued for. suing people for clearly exercising first amendment speech IS (an attempt to) suppress speech. get real.

you don't have the right to 'fight back' cause somebody was exercising their first amendment rights, by trying to drag them into court and subject them to legal bills etc. you counter "bad speech" with good speech, not by trying to muzzle somebody or try to sue them for exercising their rights.

and my bad on the scare quotes thang. probably the wrong term. i stand corrected
4.11.2007 11:53pm
Eugene Volokh (www):
Folks: SAE's motives may not have been pure, but lots of speakers' motives are impure. It seems to me that, regardless of motive, publicizing true statements about the past behavior -- behavior relevant to fitness for office -- of nontrivially important government or university officials would be core constitutionally protected speech. It also seems to me that university administrators ought not be trying to suppress this speech. If you did something bad in the past, don't sue people who accurately reveal this information, whether their motives are noble or ig-.
4.12.2007 12:04am
whit:
that is exactly how i feel. their motives are irrelevant. first amendment rights should not be filtered through that lens.
4.12.2007 12:10am
Ella:
Whit - Lest you think I like administrators too much, I read the "Director of Judicial Affais" as one of the nonsense titles school administrators give themselves to make them feel important. In fact, I just checked the U. Maine website and he has a new title (similar responsibilities) - Director of the Office of Community Standards, Rights and Responsibilities. www.umaine.edu/studentaffairs/current%20org%20chart.pdf He's in charge of student discipline and the student honor code. He's the university equivalent of an assistant principal and not someone I'd expect to know anything about the first amendment.
4.12.2007 12:32am
Richard Aubrey (mail):
Ella. Everybody who gets out of high school should know something about the first amendment. And anybody who's dealing with students ought to know a good deal more than that. See the endless supply of cases starting about third grade of educrats stepping on their neckties. Point is, they are in first amendment territory quite often and knowing something ought to be expected. Even assistant principals.
4.12.2007 12:41am
ReaderY:
Not a matter for the courts, but true gentlement these frat boys definitely are not. Given that restraining orders, without more, are often ex parte, the frat boys don't seem to have dug up dirt of any significance or served any purpose other than to annoy.
4.12.2007 12:46am
Ella:
Richard - Your example shows why I don't expect administrators to know anything about the first amendment. Whether they should or not, they don't. At least Mr. Fiacco wasn't using his position as an administrator to supress anyone's first amendment rights, which puts him several steps ahead of most.
4.12.2007 12:47am
whit:
readery, TEMPORARY restraining orders are ex parte

for an order to be extended beyond that, which this was, there is a hearing where both sides present evidence. thus. i don't think that is ex parte (but im not a lawyer)

fwiw, that is the least so to speak, of his "offenses"

somebody can get a restraining order against them without even committing a crime, let alone being convicted of one.

all you gotta have is a preponderance of evidence that your scared of the person, and you got good reason to be. i'm simplifying, but it's hardly the same standard of evidence as a criminal case.

ella, imo your protestations sound kind of silly. yes, i think a friggin' university administrator, especially one who deals with student disciplinary procedures should have a decent understanding of the 1st amendment. frankly , EVERY american should, but certainly an educated man in a position of power like that at a university.
4.12.2007 12:58am
BobNSF (mail):
In what way are Fiacco's DWI and restraining order relevent to his job?
4.12.2007 1:02am
Dan Simon (mail) (www):
It seems to me that, regardless of motive, publicizing true statements about the past behavior -- behavior relevant to fitness for office -- of nontrivially important government or university officials would be core constitutionally protected speech. It also seems to me that university administrators ought not be trying to suppress this speech.

Likewise, it seems to me that, regardless of motive, initiating a tort lawsuit for intentional infliction of emotional distress is perfectly legal. (Whether it's Constitutionally protected is a question I'll leave to the Constitutional clergy to determine.) It also seems to me that students being disciplined by their college shouldn't be digging up dirt on the college's administrators and peddling it anonymously to the press.

I'm with Ella on this one--they all sound to me like exceedingly ruthless characters playing some serious hardball with each other, and I see no reason to admonish one side more than the other. Why Eugene's standard of behavior for one side is what's strictly legal, but for the other side what's seemly and principled, is a mystery to me.
4.12.2007 1:27am
Eugene Volokh (www):
(1) Publishing the truth about university officials -- the truth that might be relevant to their fitness for their jobs -- is more valuable, even when done from bad motives (whether that's so is unclear here), than filing meritless lawsuits.

(2) University officials have special obligations not to try to suppress truthful student speech.

(3) If you'd like to condemn SAE, that's fine; I don't have any deep interest in defending them. My point is simply that Fiacco merits condemnation.
4.12.2007 1:40am
Dan Simon (mail) (www):
(1) Publishing the truth about university officials -- the truth that might be relevant to their fitness for their jobs -- is more valuable, even when done from bad motives (whether that's so is unclear here), than filing meritless lawsuits.

Like BobNSF, I fail to see the relevance of this particular administrator's past personal, non-academic misdeeds to his job fitness. (I also find the court's ruling that he's a "public figure" a bit of a stretch, although I admit that as a layman, I neither know nor much respect the US Constitutional Church's latest exegeses of "public figure" doctrine.) And the students' decision to pass details of this administrator's past anonymously to the press, rather than openly to those officials in a position to act on them, tells me everything I need to know about their motives.

(2) University officials have special obligations not to try to suppress truthful student speech.

These "special obligations" extend into their private, non-official actions about as much, I'd say, as the students' "special obligations", as students, to treat their college administrators with appropriate deference and respect extend into their private actions.
4.12.2007 2:11am
Ella:
Whit -

People who spend significant time thinking or reading about the First Amendment tend to have an exxagerated opinion of what others can or should be expected to know about the topic. Yes, everyone with a college education, especially an administrator at a university, should have a basic understanding of the First Amendment. In reality, they don't and I don't expect them too, no matter how silly you think that is.

But for a layperson, this case involves even more complex issues. Is it reasonable to expect that a school administrator be familiar with the application of speech-based torts to public officials and public figures? Is it reasonable to expect that he understand, or even know about, Hustler v. Falwell? You may disagree, but in my experience, most educated people are almost entirely ignorant of those finer points. That's why I think Professor Volokh's condemnation of Mr. Fiacco for filing his lawsuit is unfair and overblown. Many private individuals would sue, possibly successfully, in a similar situation and Mr. Fiacco probably didn't know that his position made him ineligible for such a remedy.

If the students' actions remotely resembled a legitimate effort to criticize or seek redress of grievance, I might feel differently about Mr. Fiacco's actions as a moral proposition, but as it is, I don't see how he deserves special condemnation. I also don't see how his actions as a private individual can be fairly treated as symptomatic of the very real problem of university administrators acting in their official capacity to suppress speech.
4.12.2007 2:21am
Eugene Volokh (www):
Dan: It seems to me that a government official's past crimes are relevant to his fitness for office -- and it's especially so that a government official's past alcohol, sexual harassment, and domestic violence offenses are relevant to his fitness to judge others accused of similar crimes or to make rules for others accused of similar crimes. Now it may be that on reflection the public will conclude that he is fit for office despite that past misconduct, or even that the past misconduct will help enrich his understanding of the problem. But laying the facts before the public so the public can decide strikes me as quite proper, even if it is done with less than noble motives.

As to anonymity, there seems to be a pretty good reason for it: When university students reveal a university official's past misconduct, they might reasonably fear retaliation. (This lawsuit seems to suggest that the fear was especially apt in this case.) And much of the downside of anonymity, which is that people may use the cloak of anonymity to make damaging false accusations based on just their own say-so, doesn't seem relevant here: They were simply publicizing information that was in the public record, and that the court later concluded was true. So I find it hard to fault the students much for their anonymity; I agree that the braver thing would have been to identify themselves, but I don't see such courage as morally imperative here.
4.12.2007 2:36am
whit:
ella, all i can say is get real.

how can any REASONABLE person (let alone a college administrator tasked to administer campus justice) think that public disclosure of PUBLIC INFORMATION is suable?

i'm sorry. i hold people to a higher standard.

he deserves condemnation because he tried to suppress constitutional rights and use the courts as a tool to suppress his 'charges' rights.

i guess we're just not gonna agree.

and i am not saying that the students are golden boys for doing what they did. in a way, i kind of respect it actually - it's sneaky, LEGAL, and mischievous!

i don't respect somebody trying to subvert the constitution.

and i think a college administrator should be above such petty actions. (not that trying to suppress people's free speech is petty, but you know what i mean).
4.12.2007 2:41am
BobNSF (mail):
Suing the students was probably unwise, mostly because it was likely to fail.

OTOH, I dont' buy the idea that all speech is free and there are no consequences to any speech. Publicly humiliating someone in order to intimidate them, gain influence over them, or punish them for rightfully carrying out their official duties ought to be discouraged. If SAE were truly an organization of "The True Gentlemen", they'd toss these guys out. Ditto, the school.

One day back in HS, I found myself standing with a couple friends on the steps of the gym as we waited for the coach to come along and unlock the door. Just at that moment, the coach's wife stepped into her yard across the street from the gym (Catholic school -- some staff lived on "campus"). One of my friends, who happened to be the son of the chemistry teacher, described at length the wife's fine qualities. He focused particularly on her breasts. Now, everything he said appeared to be quite true. Even gay ole' me could see she was beautiful. He had us so enthralled with his plans on ravishing her that no one noticed that coach had climbed up the stairs behind us. Heard every word, apparently. Sadly, Prof. Volokh wasn't there to defend our absolute free-speech rights, so we ran laps for an hour each day for a week -- no stopping, except to heave. And my friend's dad, the chemistry teacher, thought we got off easy.
4.12.2007 2:43am
Monkberrymoon (mail):
I like bright line rules, and I can't think of a brighter line than "how in God's name can simply parroting public information be actionable?" Whether it is relevant to the guy's job fitness is completely immaterial.
And I don't think Fiacco gets a pass -- it seems like a facially frivolous lawsuit (though I know judges don't like to award sanctions for this kind of nonsense).
4.12.2007 2:54am
Harvey Mosley (mail):
To the commenters who are focused on the motives of the students-

Why not extend this out to the people being held as enemy combatants by the US? Surely, there motives are suspect, being considered enemies of the US. Should we limit their ability to reveal true information they have about their conditions or keepers? (I know, its a big stretch, but there are SOME similarities.)
4.12.2007 3:11am
David M. Nieporent (www):
OTOH, I dont' buy the idea that all speech is free and there are no consequences to any speech. Publicly humiliating someone in order to intimidate them, gain influence over them, or punish them for rightfully carrying out their official duties ought to be discouraged.
Indeed. But it ought not to be discouraged with frivolous lawsuits. It ought to be discouraged with public condemnation, ostracism, and the like.

But let's not let one person pass without comment: Bernard Kubetz. One might attempt to argue that Fiacco shouldn't be expected to know the First Amendment, but one can't argue that his lawyer shouldn't be expected to know the First Amendment. It was Kubetz who filed this meritless suit.

Especially since "Mr. Kubetz frequently lectures to legal, business and media groups on a variety of aspects of civil litigation,
defamation and First Amendment issues."
4.12.2007 3:17am
BobNSF (mail):
Speaking of lawyers doing their jobs, is this really acceptable behavior:


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.
4.12.2007 3:46am
whit:
of COURSE there is consequence to speech. condemnation, boycotts, bla bla bla

all fine. nobody disputes that.

frivolous lawsuits is not the proper response. again. you criticize bad speech with good speech. you don't try to get the courts to punish people for exercising their CONSTITUTIONAL RIGHTS
4.12.2007 3:56am
David M. Nieporent (www):
Speaking of lawyers doing their jobs, is this really acceptable behavior:

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.
Certainly. Of course, the particular tactics of Kraft may or may not be acceptable, but hiring an investigator itself is perfectly legitimate. Since apparently all this investigator did was look into public records, no problem there.
4.12.2007 4:32am
Owen Hutchins (mail):
On the one hand, it seems to be protected speech, even if with nasty intent and anonymously done. On the other hand, I sincerely hope that the fraternity is smacked as hard legally as possible for the actual crimes they appear to have committed.
4.12.2007 7:21am
Ella:
Whit

I think I'm being much more realistic than you are with regard to what real people in the real world know and understand about the law. Moreover, since private individuals in Maine apparently CAN sue someone for intentional infliction of emotional distress for releasing public information, it's hardly unreasonable for someone to believe that they can. Blame his lawyer or the judge who let this go on so long, if you think the outcome was so obvious. For me, I don't expect a mid-level bureaucrat at a public university acting in his personal capacity to show greater respect for the First Amendment rights of individuals to carry out anonymous, vicious attacks than a mid level bureaucrat at the state Health Department - I expect them to show exactly the same respect or lack thereof as a private individual.

And I just cannot buy the interpretation that the students were attempting to make a legitimate critique of his qualifications for office. The note, the manner of delivery, and the circumstances surrounding it make it blazingly obvious that these students were trying to derail the disciplinary process against them or take revenge on the person they thought was responsible for initiating it. This doesn't change the fact that it's protected speech, but let's not pretend they were doing something they weren't.
4.12.2007 8:40am
SlimAndSlam:
The analogy that came to my mind was that of a SLAPP. (Or is Mr. Fiacco's suit an actual example of a SLAPP, rather than analogous to one?)

At any rate, it seems that Mr. Fiacco's aims in filing the suit were at least partially satisfied - SAE, rather than facing internal punishment within the university system, now stands open to public condemnation, including by dozens of VC commenters who never would have heard of it otherwise. Did Mr. Fiacco win by losing? (A Pyrrhic victory at best, since he himself now stands open to similar condemnation.)

[Disclaimer: I haven't read the opinion or articles about the case, only this post and the comment thread.]
4.12.2007 9:06am
Justin (mail):
Independent of the First Amendment, did Willy violate any ethical rules? I'm definitely not an expert on the subject, in Maine or elsewhere.
4.12.2007 10:01am
Prufrock765 (mail):
Ella and others:
Why do we care what Fiacco's level of understanding of the 1st Amendment is/was unless he filed this suit pro se? The university has attorneys and he can consult them or private attorneys who can let him know in a short consultation that his case has merits (or not).
OTOH I think university officials like this get seminars annually on issues like e.g., the 1st amendment and its application in an educational context. Additionally it is reasonable to expect that a man in Fiacco's position would take the trouble to educate himself at least a little about the 1st amendment.
4.12.2007 10:31am
Adeez (mail):
What the frat did is the equivalent of leafletting! I agree with those who find the suit frivolous. He should be forced to pay the frat's legal fees.
4.12.2007 11:34am
Fub:
Adeez wrote at 4.12.2007 10:34am:
What the frat did is the equivalent of leafletting! I agree with those who find the suit frivolous. He should be forced to pay the frat's legal fees.
In some states there is good chance he would have, if they had a strong anti-SLAPP statute like California's Code of Civil Procedure Section 425.16.
4.12.2007 12:59pm
Monkberrymoon (mail):

Moreover, since private individuals in Maine apparently CAN sue someone for intentional infliction of emotional distress for releasing public information, it's hardly unreasonable for someone to believe that they can.

That's shocking, if true. Is there authority for this?

Of course, maybe you're just being literal -- of course someone CAN sue for anything, but it may still be frivolous.
4.12.2007 1:09pm
Ella:
Prufrock

Mr. Fiacco's knowledge or understanding is at issue because Professor Volokh and others have chosen to condemn him for violating what they perceive to be his duty as a public official by filing a lawsuit as a private individual. The University and its lawyers were not involved. He retained his own attorney. Why should he be expected to know better than his attorney evidently did?
4.12.2007 2:06pm
whit:
by that metric, all frivolous lawsuits are not the fault of the petitioner, as long as they use a lawyer to file the case.

cmon. lawyers job is to support the petitioners SIDE, regardless of how absurd it is. :l
4.12.2007 3:50pm
Rich Rostrom (mail):
Maine-Alpha SAE are clearly a pack of jerks. That doesn't matter. Their rights of free speech are not dependent on their being nice guys. They have just as much to distribute factual, public information about Mr. Fiacco as would a fraternity that he suspended because they refused to pledge his obnoxious nephew. Their behavior may be improper, but it was legal. And protected free speech.

BTW, it seems odd that Maine-Alpha SAE would take this route. Did they have reason to suspect that Fiacco's closet was such an ossuary?
4.12.2007 4:23pm
Ella:
Whit - Actually, a lawyer has an affirmative duty not to pursue any frivolous claim or defense. A rule perhaps more honored in the breach, true, but if a client asks an attorney to file a lawsuit that the attorney knows has no basis in law or fact, she would have a duty to tell her client so and refuse to bring the suit. So, yeah, all else being equal, attorneys are more responsible than their clients for frivolous suits.
4.12.2007 8:50pm
whit:
ella, i totally agree - in principle, about what attorneys are supposed to do :)

i agree that the attorney IS more responsible

i just think fiacco is responsible too
4.13.2007 12:04pm