Public figure hurdle remains high

College officials fall short in suits challenging statements published about them

Courts in two recent cases have reaffirmed that university professors and administrators are public figures who face heavy burdens when trying to claim they were harmed by information published or circulated about them.

Courts in Minnesota and Maine threw out the officials’ lawsuits, ruling that because the plaintiffs hold public positions at their institutions, they must meet standards the law requires of public figures.

Eric Robinson, staff attorney for the Media Law Resource Center, said neither case is necessarily groundbreaking; they just underline present law.

“My impression is that public university employees have more or less typically been held to be public officials,” he said. “These cases just reinforce that.”

Breathing space for error’

In Minnesota, the state’s appeals court ruled in January that Richard D. Lewis could not win his libel and defamation lawsuit against St. Cloud State University’s student newspaper because the University Chronicle did not publish its statements with “actual malice,” knowing the statements were false. The Minnesota Supreme Court refused to review the case in May.

The Chronicle quoted a former student saying Lewis “mistreated” her by changing her grade from an A to an incomplete. The student also said that the former dean was anti-Semitic and accused him of using racial slurs, but she later retracted those statements, saying she meant them about someone else. The Chronicle printed a partial correction, and Lewis sued.

But in January, the Minnesota Court of Appeals threw out the lawsuit, ruling that Lewis is a “limited-purpose public figure.” Lewis was meaningfully involved in a public controversy regarding anti-Semitism on campus and the paper’s allegedly defamatory statements were related to that controversy, the court ruled. For those reasons, Lewis could win his lawsuit only if the paper published the statements with “actual malice.”

“It’s always gratifying in a case like this when there’s an admitted and serious error that’s made and you win,” said the Chronicle’s attorney, Mark Anfinson. “That’s the whole notion of New York Times v. Sullivan where the actual malice standard came from — a necessary breathing space for error and debate.”

Truth as a defense

In Maine, a federal appeals court ruled that administrator David Fiacco could not win his intentional infliction of emotional distress lawsuit against a fraternity because the statements he claimed members made were essentially true. Fiacco is the director of the Office of Community Standards, Rights and Responsibilities at the University of Maine at Orono.

Whereas private individuals can win emotional distress claims even if they concede the statements in question were true, public officials or public figures must show those that published the statements knew they were false or were reckless in verifying their accuracy.

And because what the campus chapter of Sigma Alpha Epsilon said about Fiacco was essentially true, Fiacco — as a public official — had to meet this standard of “actual malice.” The 1st U.S. Circuit Court of Appeals ruled he did not.

After Fiacco began investigating Sigma Alpha Epsilon for misconduct in 2002, a group of fraternity brothers hired a private investigator to look for evidence of bias Fiacco might hold against fraternities. Instead, the investigator uncovered a Colorado Driving While Ability Impaired conviction and a restraining order against Fiacco that his former girlfriend had secured.

Members of the fraternity decided to use this information. They made copies of the records, sealing them with an unsigned memo that 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 the University of Maine could find for the Office of Judicial Affairs?”

With the help of an alumnus in Colorado, the fraternity members mailed the packages without return addresses to the university president, several deans, the University of Maine System Board of Trustees and two local newspapers. In his lawsuit, Fiacco said this caused him insomnia, nightmares and depression.

But the court ruled the statements in the memo were not false because Fiacco was convicted of Driving While Ability Impaired, similar to Driving While Intoxicated, and his former girlfriend obtained the restraining order under the Colorado Domestic Abuse Act, which indicated the court found Fiacco had committed an act of violence or threatened to do so.

Drawing lines

Gary Dickstein, president of the Association for Student Judicial Affairs, said presidents of universities are obviously public officials. But he said judicial affairs officers at fair-sized institutions are not typically considered to wield that much executive power.

“Generally, they’re somewhere between middle managers and senior staff,” he said. The court’s reasoning, distinguishing Fiacco as a public official because he had authority to decide whether students were allowed to continue in school, could be applied to many school officials, he said.

Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law, said without the actual malice standard, it would be impossible to evaluate people in positions of power.

“When we’re talking about professors at any kind of state university, certainly at least there is a threshold to the argument that since you’re on the public payroll, your actions are clearly a matter of public interest and you should be considered a public figure for at least that particular purpose,” she said.

But the expanse of that classification is a reasonable topic for debate and discussion.

Said Kirtley, “I’m not sure just becoming a professor, and I speak as one, doesn’t necessarily open you up as a public figure in every instance.”

Fall 2008, reports