Friday, June 10, 2011

Update on Greg Fultz, or, the First Amendment v. Privacy Rights

I just wanted to update my previous post.

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.




9 comments:

harrogate said...

Look, you make a very persuasive case here, I'm not going to lie. So let me ask you this, very briefly: Would it still be protected free speech if he posted her home address in an autobiography, or a billboard? How about her cell phone #? Attached to this information could be the message: "this woman killed my child. Let her know what you think about it."

Would divulging that information fpr a private citizen be protected, important, political speech? If not, why not?

harrogate said...

Also, My responss have been tunnel-visioned with respect to calling people out publically over having abortions or doctors performing them. I do find it a social travesty, an indicator of how depraved our discourse is, that we ever knew who George Tiller is, and frankly, I find knowing who this woman is to be even worse. But whatever.

Your posts have addressed other major points and I've thought alot about them too, so I'll respond here.

1)Of course it is a thorny problem that the man "gets no say" in this matter--that's his priamry argument. But I am not very bothered by it because what is the alternative? I cannot think of one that does not horrify.

2)I retract the complaint that it is slander, baseed on your points about definitional arguments. Also I want to be intellectual honest and at least somewhat consistent: I routinely argue as a matter of course that much of the American economic and political apparatus is composed of murderes, including our current and previous several Presidents. I confidently take this position knowing full well that the law does not deem them murderers. But I would like to change the law and see them tried for war crimes and for mass murder.

Of course, the difference is, I am right and the anti-abortion protestors are wrong. But that's neither here nor there. ;-)

solon said...

If Fultz were to publish her contact information AND people took advantage and called her, then the billboard would be closer to harassment than to political speech. In that case it may be considered a threat.

But I think that this may overstate the case. Remember, if her contact information were available on the billboard, the billboard would only make finding the information easier for people who wanted to find the information in the first place. Remember, her information is probably available now via the internet and/or the phone book, family, or friends. In a way we have a false sense of privacy where we think we live anonymously but that seems impossible now.

If you remember the Nuremberg Files case (the website that put the names & addresses of abortion providers online and striking out the names of the ones who have been killed), a court ruled that the speech constituted a threat against the doctors. Yet, most of the information was publicly available as it is not as if the doctors worked in super-secret locations. However, the problem seems to be the compiling the information along with the names being struck out. The second component makes this look like a "threat" even if it is no a direct threat, which seems to be in contradiction to the incitement standard of "imminent lawless action."

Why not punish Sharon Angle who stated that if she lost the election then her constituents ought to rely on their second amendment rights?

solon said...

I actually have no problem if a partner has no say in whether or not a woman gets an abortion. That is an issue that two people must work out in their relationship. I do not think the state has a say and I am not even sure if a doctor could override a women in her decision. I, in fact, hate the new laws that require doctors to provide invasive ultrasounds on women before they can get an abortion. I think that this is a waste of medical resources and is an attempt to strong-arm the woman.

However, if a person chooses to undergo the medical procedure, that person is not free from criticism, especially from someone in the relationship with that person. I would hope that the people in the relationship would be judicious in their treatment of one another. I am not optimistic that they will be.

And I agree, you are right. And they are wrong. We shall have a drink and bask in your rightness.

harrogate said...

It's always something worthy of drinking to, my rightness. It is a rare species in a degenerative world. Relatedly, here coms a bunch of good speech:

I think we have uncovered a wonderful, constitutionally-protected strategy for anti-abortion protestors. Publish names and addresses on locally created websites, of the name and address of every woman who walks into a Planned Parenthood clinic (this information would be asy to glean based on license plates and/or following people home without them seeing that you are following them). It doesn't matter why she is going in there--just say she went in to have an abortion. Protestors could stand within a legal distance of the womens' houses, and hold peaceful pickets just like they do at Planned Parenthood. It might mitigate their argument that their real complaint is with Providers, and not the women, but that claim always seemed like it wasnt really working anyway, whereas this can really ramp up the "shame" factor they are going for.

I am also in favor of publishing everyone's medical records on local websites, in total. Why should men who use prescriptions to help them with impotence have a right to "privacy"? Why someone diagnosed with HIV?

I am only about 1/4 kidding. It seems to me this is the logical and consistent consequence of how we define "information" and "speech" in America.

Here's something I'm totally serious about, though: I am not sure if there is a moere disingenous statement in our discourse than the following:

“The cure for bad speech is more speech, or better speech.”

This statement is willfully outside empirical reality and almost everyone who says it, knows it, when they say it. The truth is there is no cure for bad speech. Nearly all of our public speech is bad, bad is what sells. Cloaked as a defense of the First Amendment, what this statement really does is, offers up a Straw Man version of America where there is a real contest of ideas at work. It's, in a word, dumb.

Let's have the obligatory nazi reference here. I wonder if anyone ever responded to Eichmann's critics that "the cure for bad speech is more, or better speech." I'm sure they did. I'm sure many still would respond to Eichmann that way, while at the same time despising his rhetoric. Such is the sojourn of imaginationland.

Maybe France's speech laws make more sense than ours, for all the problems it presents.

Hmmm. But anyway. One of the conservative columnists I regularly read out of some self-flagellative impulse to scour terrible arguments, is a guy named John Hawkins. He's a blight of skin and teh context of the article is predictably callow, but the following sentence of his did catch my eye and cause contemplation:

"If the American people are no damn good, then no matter how well the Constitution is written, how well we're governed, or how much good fortune comes our way, we are doomed as a nation."

While he and I could not be more polar oppsosite, it seems, in terms of defining goodness, I have to say I agree with this sentiment entirely.

solon said...

In B/CS, an unknown person takes a photo/ writes down the license plate of every person that goes to Planned Parenthood. Somehow, maybe through a political connection the Buddy Wins office (Dept. of Transportation), that shadowy figure gets access to public information--- who has registered the car. Once that person has the address from the car registration, that person sends a postcard to the family saying, "your son or daughter went to Planned Parenthood to get information in an abortion."

This is a very loaded situation. It is completely anonymous. Yet, under Texas law, this the information in question is not "private."

It is not clear to what extent protesters could protest in front of someone's house. There is a space requirement-- but you could could do this for anyone or for any reason. If you want to protest Enron, of Goldman Sachs, or whomever you have the right (so long as they do not live in a gated community etc.) I do not think that you would protest that, right?

Second, i disagree with your comment "on the cure for bad speech is more speech." I just finished rereading Freeing the First Amendment. Most of the make the argument is that speech hurts individuals (without accounting for the recipients agency-- they are just passive cells that get offended in every context, but I digress) and that speech should not be allowed to hurt individuals and disrupt the community, etc. etc. etc.

Only one article argued that, well if you look at the history, Gay Rights developed quite well from an absolutist first amendment. Even when judges disliked like gays and gay activists, the judges sided with them on the legal merits (right to petition, right to protest, write to speak out, etc.)

After reading the book and thinking about this article in relation to the others, it seems that the problem is not speech but the power relations behind the speech, i.e. the absolutist protection of speech protects people from saying bad things about bad people and they do not get held accountable for their terrible attitudes. Is seems most of the people do not like something and what changes (institute a new set of power relations.)

Well, fine. But remember there are more places like the town in Tenn. that wanted to ban gay people. There are more states that have changed their constitutions to define marriage as being between a man and a woman then supported Civil Unions or SSM. And, this speech and action would be the norm under a system whereby majorities get to discern what is good and bad speech.

solon said...

In B/CS, an unknown person takes a photo/ writes down the license plate of every person that goes to Planned Parenthood. Somehow, maybe through a political connection the Buddy Wins office (Dept. of Transportation), that shadowy figure gets access to public information--- who has registered the car. Once that person has the address from the car registration, that person sends a postcard to the family saying, "your son or daughter went to Planned Parenthood to get information in an abortion."

This is a very loaded situation. It is completely anonymous. Yet, under Texas law, this the information in question is not "private."

It is not clear to what extent protesters could protest in front of someone's house. There is a space requirement-- but you could could do this for anyone or for any reason. If you want to protest Enron, of Goldman Sachs, or whomever you have the right (so long as they do not live in a gated community etc.) I do not think that you would protest that, right?

Second, i disagree with your comment "on the cure for bad speech is more speech." I just finished rereading Freeing the First Amendment. Most of the make the argument is that speech hurts individuals (without accounting for the recipients agency-- they are just passive cells that get offended in every context, but I digress) and that speech should not be allowed to hurt individuals and disrupt the community, etc. etc. etc.

Only one article argued that, well if you look at the history, Gay Rights developed quite well from an absolutist first amendment. Even when judges disliked like gays and gay activists, the judges sided with them on the legal merits (right to petition, right to protest, write to speak out, etc.)

After reading the book and thinking about this article in relation to the others, it seems that the problem is not speech but the power relations behind the speech, i.e. the absolutist protection of speech protects people from saying bad things about bad people and they do not get held accountable for their terrible attitudes. Is seems most of the people do not like something and what changes (institute a new set of power relations.)

Well, fine. But remember there are more places like the town in Tenn. that wanted to ban gay people. There are more states that have changed their constitutions to define marriage as being between a man and a woman then supported Civil Unions or SSM. And, this speech and action would be the norm under a system whereby majorities get to discern what is good and bad speech.

harrogate said...

I remember that B/CS camera well, drove past it everyday on my way home for like two years. And yeah, that's what I'm talking about--I think that we will see this persoanlized strategy more and more, as time goes by.

As for the Enron/etc. comparison. Sure, I see its validity in the abstract. What si the difference between picketing the home office of corporations that profit from a wrecked economy and war, on the one hand; and picketing people's homes to protest their medical decisions on the other? I cannot see the difference, myself.

Indeed. I am not sure if you saw the movie _Dodgeball_ or not, but there is a brief, interesting moment where the Ben Stiller character arrives at the female lead's house to "woo" her. When she, disgusted, asks how he found out where she lives, he cites the "Freedom of Information Act." What I am saying here is, since there is clearly no abstract, constitutionally articulable difference (and criticizing the constitution is not only futile but unpatriotic) between protesting Enron and picketing a woman's home because she has had an abortion. Then, given the lack of difference, if you read my comment carefully, I am saying we extend the Stiller character's understanding of the Freedom of Information Act, and

make entirely public, accessible via the Internet, EVERYONE's medical records. What a boon for the cable enws networks. Entire hour long shows can be developed whereby blowhards can identify five or six individuals a week, whose medical experiences/decisions need to be condemned by "the folks." Personally I love the idea.

As for your response to what may appear to be my attack on the First Amendment. Look, I understand, at least as well as you do, the mendacity of the general public. So yeah, your point is well taken.

But please understand that my attack is less on the First Amendment than on the idea thatthe First Amendment can save us from ourselves. Because it has been prove that it cannot.

harrogate said...

Also, I love your parenthetical comment:

"(so long as they do not live in a gated community etc.)"

The fact that it is in parentheses makes it that much more precious. Because, thank God the people who start our Wars and pillage our public sector, and wreck our economy, do not have more ability to insulate themselves from scrutiny than a working class woman who rents her dwelling.

And thank God, too, that thanks to the First Amendment, that same (hypothetical) working class woman's voice is just as much a part of the constitutionally-protected "marketplace of ideas" as that of your average CEO.

Parenthetical, indeed.