SAE PREVAILS AGAINST COLLEGE ADMINISTRATOR

Daniel McCarthy, Manley Burke

David Fiacco, in his role as the Director of the Office of Community Standards, Rights and Responsibilities oversaw the student discipline process at the University of Maine at Orono (“UMO”).  In 2002, Fiacco’s office started an investigation into Sigma Alpha Epsilon’s Maine Alpha chapter for misconduct.  In response, several current and former members of the chapter hired a private investigator to look into any evidence of bias that Fiacco might hold against SAE or Greek organizations in general.  The investigation revealed that Fiacco had involvement in two previous legal issues: a conviction for Driving While Ability Impaired (“DWAI”), and a temporary restraining order against him by a past girlfriend.  Because of the DWAI conviction, Fiacco departed from his previous position as Director of Public Safety at Fort Lewis College in Colorado.

The group of members and former members of the Chapter then distributed the documents to UMO officials and local newspapers with the following unsigned memorandum:

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 the University of Maine could find for the Office of Judicial Affairs?

In September of 2005, Fiacco sued SAE Nationals in federal district court (through diversity jurisdiction), claiming, among other things, intentional infliction of emotional distress.  Fiacco claimed that he became distressed and withdrawn, experienced insomnia, nightmares and teeth-grinding because of the disclosure of the information by the members and former members of the Chapter.

In order to prevail on a claim for intentional infliction of emotional distress, a party must establish the following: 1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress could result from its actions; 2) the conduct was “so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community;” 3) the defendant’s actions caused emotional distress; and 4) the emotional distress was beyond what a reasonable person could be expected to tolerate.  Because of the First Amendment, where the distress is claimed to have been caused by published speech, public figures and public officials face an additional burden in that they must prove that the publication was false and was made with actual malice.

After extensive discovery, SAE moved for summary judgment.  The district court granted SAE’s motion for summary judgment in April of 2007, finding that Fiacco was both a public figure and a limited-purpose public figure.  Because he was found to be a public figure, Fiacco’s intentional infliction of emotional distress claim failed because he did not establish that the memorandum that accompanied the documents was made with actual malice.

Fiacco appealed, arguing that the district court erred because he was not a public figure and because the statements were made with actual malice.  The United States Court of Appeals for the Fourth Circuit affirmed the district court’s ruling in favor of SAE.¹  The Court of Appeals first held that Fiacco is a public official because, “[t]he inherent attributes of Fiacco’s position as Director of the Office of Community Standards demonstrate that he exercises influence over issues of public importance.”  Further, the court noted that Fiacco had special access to the media and was mentioned, by name, numerous times during the previous year in both the student newspaper and the Bangor Daily News.  This was significant because Fiacco “had special access to the media beyond that of an ordinary person; therefore, faced with the … mailing, had he wished to defend his reputation in public, the media would likely have covered his story.”  Finally, the court found that Fiacco assumed a risk of diminished privacy when he became the Director of the Office of Community Standards.

The opinion also found that the members did not act with actual malice because Fiacco could not prove that the documents or memorandum included a false statement of fact.  Actual malice requires a party to publish a statement about the other party “with knowledge that the statement was false or with reckless disregard as to whether or not it was true.”  While the memorandum contained several misstatements, the court found them insignificant and not to rise to the level of actual malice.

In an article by Kelsey Beltramea in Student Press Law Center, Bernard Kubetz, Fiacco’s attorney, said that they will not pursue further appeal.  In that article, Kubetz also expressed his disappointment with the decision, “Strictly applying First Amendment principles, a national fraternity with a great deal of power was able to get away with what I would consider to be an affront to blackmail [Fiacco].”  The decision did not address how Fiacco intended to hold SAE liable for the actions of several of its members in this case.

¹  Fiacco v. Sigma Alpha Epsilon, 528 F.3d 94, C.A. 1 (Me. 2008).