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:
University Administrator Suing Student Group:

By the way, a quick query on my part suggests that the Fiacco v. Sigma Alpha Epsilon Fraternity decision noted below hasn't led to any newspaper coverage. The Bangor Daily News covered the lawsuit when it was filed in Sept. 2005; but the April 5 decision I quote below doesn't seem to have made the news, or even the Foundation for Individual Rights in Education site.


From the University of Maine student newspaper (Sept. 16, 2002):

Over the summer a policy was created concerning parental notification of students found in violation of alcohol and drug laws at UMaine. Parents and guardians will be notified of their student's behavior if it is determined that the student has committed a violation regarding alcohol or any other controlled substance and is under the age of 21....

"A student involved in and found in violating conditions of the [conduct] code as far as alcohol or drugs is subject to parental notification if they are under 21," David Fiacco, director of Judicial Affairs said Wednesday....

On the other hand, in 2005, when a fraternity upset with Fiacco because they were being disciplined for various offenses publicized, among other things, a "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," Fiacco sued it for intentional infliction of emotional distress.

So let's see if I understand this: When a legally adult student is found through university administrative processes to have violated alcohol laws, his parents not only may but should be notified. But when someone discovers that a university administrator has pled guilty in court to violating drunk driving laws, notifying the public of this is supposedly tortious, and in Mr. Fiacco's view ought to lead to substantial damages liability (including punitive damages).

I realize that it's possible that Mr. Fiacco, despite his fairly high position within the university disciplinary system, was simply following orders back in 2002, and wasn't involved in actually creating the parent notification rule, or opposed it internally. Maybe. But is it too much to ask that a university administrator in charge of enforcing a system such as this tolerate student revelations of his alcohol infractions, just as students are supposed to tolerate his revelations of their alcohol infractions?

(Yes, I realize that the students tried to convey Fiacco's past to the public, and Fiacco's office has a policy of conveying it to the parents. But surely conveying something to parents can be highly embarrassing, and intrusive into the student's lives, especially given that the infractions may involve little threat to others, while Fiacco's infraction involved not just illegal possession of alcohol but drunk driving; and conveying the information to the public has the benefit of informing the public about the character of its public servants. I also realize that the university's motive is the students' own good and the fraternity's motive may have been retaliation, though it might also have been exposing someone who they thought was unfit for his job. But whatever the motive, the means strike me as pretty similar; and it seems particularly improper that an administrator who uses such means against students would try to use the legal system to punish students who use similar means against him.)