Tuesday, June 07, 2011

First Amendment Versus Privacy Rights

I am still unsure where I stand in relation to this case. Here goes:

Thirty-Five year-old Greg Fultz, with the help of pro-life activists, paid for a billboard to lash out against an ex-girlfriend. According to Yahoo News:

The sign on Alamogordo's main thoroughfare shows 35-year-old Greg Fultz holding the outline of an infant. The text reads, "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child!"
Fultz argues that, under the Supreme Court's recent Westboro Baptist Church decision, that even though this may be offensive it is protected political speech. I do not think that I, or anyone else, can deny him this claim as this is certainly political speech in relation to the abortion war. There are other rights involved but, nonetheless, this is important political speech.

It seems that Fultz argues that his ex-girlfriend did not discuss whether or not she would get an abortion. This factual claim is in dispute as his ex-girlfriend, who is not named in the article, her lawyer, and her friends claim that she had a miscarriage. This raises a few additional issues:

What happened: Did they discuss this? Did she obtain an abortion without his consent? Is the spousal notification relevant in a legal or moral sense?

What, if any, are the parental rights of the father? When do they begin? Would they even apply in this case?

Since we do not know the name of the ex-girlfriend, we can assume she is a private citizen rather than a public figure, meaning that she may not be open for public criticism in the same way a celebrity or government official would be. The woman's lawyer argues that this is not a public concern but a private decision. This seems to be one of the ironies of the abortion debate as it is of great public concern that we only discuss in the abstract.

Incidentally, typing "ex-girlfriend" bothers me since we only know her in relation to him, which makes it seem like he has ownership over her. I know that she wants to respect her privacy, hence the anonymity, but typing "ex" bothers me. Is the public/private distinction the most important distinction? Or does the nature of the public, political speech trump this distinction?

If this case solely involves privacy, what is the nature of that privacy and what are the limits to that privacy? To what degree should a medical decision remain private between a doctor and a patient? What happens when a medical decision involves a third or fourth person? (I do not know the law on this but I would be very interested in researching this). Does the medical decision trump other rights, including the parental rights and/or free speech rights of the father? It seems under Roe and Casey that the decision would remain the woman's however this does not concern criticism of the decision.

Is one of the most important aspect of this case involve whether or not the woman in question suffered emotional distress or damage to her reputation? In light of the Westboro decision, political speech, no matter how repugnant, that causes emotional damages is not enough to suppress the speech.

If emotional distress does not matter, does this case concern the damage to her reputation?How does the woman in question show that her reputation was "damaged" (necessary for libel and defamation)? If the story is factually incorrect (libel per se) than she may have a case (and, again, the facts are in dispute.) But, since truth is a defense in libel cases, would she have a case if the speech in question is true? And, remember, the facts are contested. Of course, for political speech, the true or falsity of the claim has no bearing on whether or not the utterance would be protected under the first amendment. However, for defamation cases, the true and the intent of the speaker (the reckless disregard of the truth by the potential defamer) may matter

This seems more like libel per quod (which depends on the context and interpretation of the listener) since you would need to know the identities of the person in the picture and his ex-girlfriend for their to be damage to the woman's reputation. For example, if a former employee wrongly claims to your employer that they saw you drinking in a bar this may be libel if the person knows that former employer and your employer knows that you were court-ordered to stay sober (see more here). In terms of the abortion debate and the medical community, there may be no legal requirement that you cannot say anything though there may be moral or social requirements. Further, I think we need to know more about the woman, her work, and how this damages her. This is necessary for to help prove the contextual aspects of this and not in order to set up more hurdles for a woman to jump through before she could prove her case.

And I am not ruling out that this billboard may have damaged her reputation. But it is unlike other types of public claims. What would matter is the relevant state law on disclosure torts though I am not sure what would be comparable in this case e.g. claiming that a person is an embezzler, which would matter in relation to the context of employment? Claiming that someone is gay? That a person has an STD? Cancer? And yet, in some of these examples, a warranted or unwarranted revelation that another person has cancer is not the same as the facts in this case because this case necessarily involves more than one person.

Or is this more like the standards of freedom of speech or of the press in relation to posting on Facebook or Twitter? Or writing an autobiography where you can reveal some personal information about others? Or writing a movie?

Of course, if the woman in question claims that this is about privacy but not defamation then the facts may be what Fultz claims. Further, even if it is privacy, the woman's privacy still involves Fultz's life. There is no way to neatly demarcate his life out of her privacy. It doesn't seem right to say that if the woman claims privacy he can no longer discuss his own life.

Finally, this seems to be oddly reminiscent of "survivor stories." I do not think the analogy is exact (so please, I am not making a moral equivalent so you do not need to have comments with the words "culturally hegemonic," "patriarchy" or anything else along those lines, thanks in advance). Each "story" seems to be a method of empowerment that potentially damages the reputation of another. Both types of stories ought to be protected speech. But types of stories may rely factual situations can be murky, highly controversial, and potentially damage the reputation of an other. Both types of speech go beyond the normal methods of speaking to raise the issue.

After walking through this, I think that the factual questions need to be resolved before approaching the normative issues on whether or not this is constitutional or good speech. I would add that I do not think it is prudent or productive speech though.


Oxymoron said...


When I saw the picture of this billboard, I never assumed that the man in the picture was lashing out against his ex-girlfriend. I assumed it was generic statement about abortion, which I guess it also is, especially to those who don't know Fultz and his former lover. At least he didn't address her by name, not that the billboard isn't bad enough.

Interesting case. Thanks for posting, Solon.

harrogate said...

Solon, that's a helluca writeup. I thought we were going to break back in slow and here you go and get our thinking caps spinning! Well done.

I need to think about this some more, and write here later, and see what others have to say. But for now I do want to say that since you cannot see anyone being named on the billboard, I have no gut-level probelm with the fact that it may have been inspired by a real-life situation, and certainly don't see any way that it is not protected by the First Amendment, however gross it may or may not be.

Still. I am VERY uncomfortable with people being made "public figures" because they perform abortions, like George Tiller. And I am horrified at the idea of a women being called out by name, publically, for having one. I did think that the radio and television personalities like O'Reilly who were calling Tiller, a doctor in Kansas, a murderer, should have been fireed, and sued for millions on whatever charges can posibly be thrown at them. I do not see how free speech covers calling individuals who are not public figures, out like that.

But that's not quite what the billboard does. Anyway. Them's my rambling two cents for now. Will try to write something better later. SOOOOO glad to see you putting out the substantive posts, Solon!

I had long been missing this blog.

solon said...

Two quick thoughts. You write:

"Still. I am VERY uncomfortable with people being made "public figures" because they perform abortions, like George Tiller. And I am horrified at the idea of a women being called out by name, publically, for having one."

And to think, abortion is legal. It is odd to have such a social stigma on something that is legal.

Second, the best analogy for this billboard may be an autobiographical account. If this were in a book, it would be fine. Facebook, fine. Both are very prominent public types of discourse for autobiographical work.

So long as the facts are okay, then this should be protected political speech.

harrogate said...

The reason I do not believe the facts are okay is that he is accusing her of committing murder, which she definitively did not do. She definitively did not kill his child.

To speak about it in the abstract as you push for changes in the law is one thing. But to call a doctor a murderer for performing a totally legal act. To call out a person by name and call her a child killer. I don't care if it is in a book or a facebook page or the New York Times. These actions constitute both slander AND libel as far as I am concerned.

The reason I am more ambivalent about the billboard is because all you can see is some dude holding an outline. If the billboard named names, then I would be in total support of shutting him up (taking the billboard down, discontinuing the book, pulling the facebook pafge, what have you) and having him face a lawsuit.

Oxymoron said...

"This would have been a grammatically correct billboard if its author had decided to not split an infinitive!"