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.

Thursday, June 09, 2011

An Important Annoucement

When an RTS blog post goes up, it's kind of a big deal. Because yeah. We're that sexy.

Wednesday, June 08, 2011

For Harrogate

I hear he's feeling lonely....

I do not know what this means....

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.

An Ode to Oxymoron