Fiacco and the First Amendment

Peter Culley, Eric Wycoff and I had a good victory in a First Amendment case Friday:

There, the plaintiff was (and is) the Director of the Office of Community Standards at the University of Maine (student discipline). He sued a national fraternity for intentional infliction of emotional distress, based on the dissemination by members of the local chapter of copies of various materials reflecting the plaintiff’s past "legal troubles," as the First Circuit put it.  (Click on the link to see what those were.)

The holding was straightforward:  because the plaintiff was a public official, he had to show malice, and could not as a matter of law.  The reason why was simple:  he couldn’t prove that the disseminated material included any false statement of fact.  There is US Supreme Court case law to the effect that you can’t have an iied case based on truthful speech if the plaintiff is a public figure or official.

What I find interesting is an argument we made that the Court of Appeals didn’t have to reach, and which the US SCt hasn’t squarely held on:  whether truth is an absolute defense (or the plaintiff has to prove falsity) even when the plaintiff is not a public official or figure. 

We argued that it should be – as Hustler shows, just changing the caption of your suit from defamation shouldn’t mean that presto! you don’t need to prove that the statement is false.  Maine defamation law also requires falsity.  To let a plaintiff get past summary disposition of a claim when the speech is truthful will, as a practical matter, chill speech, and thus implicates the same First Amendment considerations as are present in defamation cases.

The case law in the lower courts (courts of appeals, district courts and some state courts) is somewhat mixed on whether truth absolutely precludes an iied claim.  There are some cases that seem to say this.  There are other cases that suggest — dicta-wise — that there might be an actionable iied truthful speech case.  The example:  a co-worker finds out that the plaintiff has terminal cancer, then taunts her mercilessly and publicly.  It’s the truth, but is there anyone who doesn’t think that, at least on a visceral level, that jerk should pay?

I see such cases, however, as distinguishable:  it’s not the truth of the statement that is causing the distress, it’s the conduct — harassment.  This hypothetical also triggers some privacy considerations, but that can be a slippery slope, too.  If someone learns of something legally, then it seems to me there are good reasons why the naked utterance of what they’ve learned (without the taunting etc.) should be protected. 

In Fiacco, in any event, there was no privacy issue, because the material was all public – court documents and newspaper reports.

Mr. Fiacco argued that the way in which the material was disseminated was objectionable because the materials had been circulated anonymously.  We responded that this alone couldn’t be conduct transforming truthful speech into an actionable tort, because in this country we have a long history of protecting anonymous speech (the US SCt has said so). 

This issue will have to be left for another day, and probably won’t be resolved soon.  Speech iied cases usually get rejected summarily because, as here, the plaintiff is a public figure or official, or because the court finds, on a case-by-case basis, that the action is not so extreme or outrageous so as to trigger the tort as a matter of law (as Chief Judge Singal also found below in Fiacco).   

Until the day comes when this issue is resolved, Fiacco at least supports the proposition that summary judgment can be granted in an iied case when the claim is based on truthful speech and the plaintiff is a public official or figure.  There’s some good language in the decision about when someone meets this "public" test, and how immaterial discrepancies do not mean that the speech isn’t truthful for the purposes of determining whether malice exists.

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