According to ABC News, the billboard in questions can be found at the main thoroughfare in Alamogordo, N.M (according to the 2000 census, Alamogordo has a population of 35,582).
Fultz admits that he does not know whether or not Nani Lawrence, his ex-girlfriend, had an abortion or a miscarriage but he knows that when the six-month relationship ended, the baby was lost, or as he says, “there was a pregnancy, then there wasn’t.” He claims that the intention of the billboard concerns the public presentation of a pro-life message rather than an attempt to defame or harass his ex-girlfriend. According to ABC News, he states that the billboard is a general pro-life message that is inspired by events in his life. Describing the political nature of the message in question, he states:
"“It’s my belief that fathers should have a say regarding pregnancy....Women have all the power when it comes to pregnancy. The men get no say when a woman wants to go and have an abortion without the say of the father.”
Time reports that when Greg Fultz purchased the billboard, he paid $1300 for the space. He paid for the billboard through his own money and from donations from private individuals. No other organizations helped fund the project.
Originally, the billboard possessed two endorsements. N.A.N.I., the National Association of Needed Information, endorsed the billboard. Of course, N.A.N.I. is a not so clever and way too cute acronym for his ex-girlfriend, Nani Lawrence. Additionally, the Right to Life New Mexico endorsed the billboard. Both endorsements have been removed. Fultz removed N.A.N.I. as the name of the organization interfered with the message. The RLNM removed their endorsement when the organization learned that it was unsure whether or not Lawrence had an abortion or miscarriage.
In response to the Billboard, Nani Lawrence sued Fultz. As ABC News reports, Lawrence brought suit against Fultz for "a petition for domestic violence and charges of harassment and invasion of privacy." Lawrence's lawyer, Ellen Jessen, states that, "I think Fultz's right to free speech ends where Nani Lawrence's right to privacy begins. ... We have to balance one's right to free speech against one's right to free speech."
According to a court order, Fultz has until June 16th to remove the ad or he faces jail time for the billboard.
Fultz plans on fighting the order based on his First Amendment rights under the Supreme Court's decision in Snyder v. Phelps, which protects repugnant and offensive speech, even if it causes emotional distress, over the right of privacy, e.g. a funeral service.
After thinking about this, what do I think?
First, under Synder v. Phelps, the tort case should not stand as political speech should trump the emotional injury.
Second, I have a hard time accepting the line that the privacy rights of Lawrence trump the speech rights of Fultz. The real controversy is not the difference between freedom of speech and privacy (freedom from speech) but in form. The speech in question is quite sophomoric but, nonetheless, quite important political speech. If this message were in an autobiography, a movie, or a Facebook status update, then there would be no problem with Fultz's message. Fultz could walk door to door to tell his story to all 36,000 people in Alamogordo and this would be protected speech. However, since it occurred on a billboard or a non-traditional form of personal and political advertisement for this issue then someone finds it offensive.
Third, the type of speech in question, that "abortion is murder" is typical political speech, especially in relation to pro-life protests. I would say that this is quintessential political speech as the people who employ it desire a change in the law. While I know that Harrogate disagrees with this type of discourse, it is a rhetorically valid definitional argument for certain audiences. The strength of the argument rests on upon the emotional aspects of the message, i.e. the anger within the claim abortion is murder. And, under Cohen v. California, the emotional aspects of the message can be as important as the message itself. To punish this type of speech is to punish the content and form of the message and the government should not be able to punish either.
Further, though the claim is quite reductive and rests an appeal to pity, i.e. the manipulation of the emotional aspect of the message, I do not see how it would be slander unless she had a miscarriage. The standards for slander for a private citizen are much lower than a public citizen and since acted recklessly, i.e. not knowing the facts of the case before publishing them on a billboard, it seems like a defamation case against Fultz would be easy.
However, knowing this, if she mad a miscarriage she would not be arguing a right to privacy. Why argue the harder case when you can argue the easy, winning case? You don't.
Fourth, in this case, the right to privacy seems to mean that Lawrence ought to be free from hearing or seeing a message and that Fultz ought not to speak out on certain messages. I find that in the first instance, Lawrence has no case. While the second instance is quite complex, I am not sure if she has a case based on notions of privacy.
Privacy, in this case, seems to rest on an understanding that medical decisions, especially abortion, occur only between a woman and her doctor. While abortion rests on the woman's decision but that decision does not occur within a social vacuum. By arguing privacy, it seems that Lawrence is trying to frame the controversy that Fultz is trying to take away her rights. However, Fultz's argument criticizes Lawrence's decision and a person is not free from criticism over this type of decision.
Though this is just conjecture, it seems that Lawrence chose to discuss the issue with Fultz. What Lawrence and her lawyer ask is that Fultz remain silent on this issue in public, which means that Fultz must separate this relationship and an aspect of this relationship from the rest of his life and beliefs. Her privacy includes his life and this would be true for any partner that she had.
The irony is that, if Lawrence forces Fultz to take down the sign, Lawrence takes ownership of Fultz and requires Fultz to be silent and autobiographical aspects of his life. I think that this means no one personally wins.
Fifth, as to whether or not he is harassing her, the billboard should not be considered harassment. Maybe he is doing something else though I am not sure. But the speech in question does not constitute harassment.
Should Fultz have been more judicious about what he disclosed about his personal relationships? Absolutely. But it is best that the First Amendment does not require a level of judiciousness as not much, if anything, would be said.
Unfortunately for Nani Lawrence, Fultz seems like a very terrible, vindictive person. I hope that as people hear about this controversy, he never finds a date again. Since he places politics over personal relationships, he doesn't seem to deserve another date. But maybe he will find a nice pro-life woman and settle down and start a nice pro-life family. I really don't care.
Yet, I find his speech and actions constitutional.