Wednesday, June 08, 2011

Privacy Versus Speech in small-town New Mexico

By Mike Dorf


A recent AP story reports that in Alamogordo, New Mexico, a billboard ad shows one Greg Fultz holding the outline of an infant and the caption "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child!"  The story goes on to relate that Fultz's ex-girlfriend contends she had a miscarriage, not an abortion, but would want the billboard taken down regardless, and a "domestic court official" agrees.  (Presumably the domestic court official is a magistrate or judge of some sort, rather than, say, the cashier n the courthouse cafeteria.)  Let's see whether that's the right result.



(1) I'm not an expert in New Mexico tort law, but in a couple of minutes of research I was able to ascertain that New Mexico does not appear to be especially idiosyncratic with respect to the relevant causes of action: Defamation; false-light publicity; publicity given to private life; and intentional infliction of emotional distress (IIED).  My admittedly minimal research shows that New Mexico follows the Restatement (2d) of Torts, or at least that any differences are not especially relevant here.  The key issues, in other words, are not likely to be whether Fultz can be enjoined pursuant to state tort law but whether the First Amendment permits state tort law to enjoin Fultz's billboard.



(2) If the ex-girlfriend did have a  miscarriage rather than an abortion, then the sign could be deemed defamatory or false-light publicity.  The ex-girlfriend is presumably not a "public official" or a "public figure" as those terms are used in the relevant Supreme Court cases, so the falsehood alone would be grounds for a conclusion of defamation--and certainly enough for injunctive relief rather than for damages.   The same is true for a false-light publicity claim.  The more interesting question is whether Fultz can be ordered to take down the billboard even assuming that the ex-girlfriend did have an abortion. 


(3) In Hustler v. Falwell (a case with preposterous facts, as I'll let the reader verify for himself or herself), the Supreme Court held that the same limitations the First Amendment applies to defamation law apply to IIED claims.  However, the principal limitation the Hustler case applies is the protection from the New York Times v. Sullivan line of cases--which provides heightened protection for speech regarding public officials and public figures.  As noted in (2), that's not relevant here.  Moreover, Hustler did not say that the First Amendment forbids all tort actions for invasion of privacy.  For example, in Zacchini v. Scripps-Howard, the Court allowed that state tort law can protect a private party's effort to monopolize the commercial exploitation of his appearance or performance (there, a human cannonball!).  Likewise, in this Term's decision in Snyder v. Phelps, the Court did not say that a state could offer no protection for privacy at funerals, only that under the facts as presented, the Westboro Baptists could not be held liable for IIED or intrusion upon seclusion.


(4)  Still, much of what is said in Snyder is helpful to Fultz. Most importantly, the Court said: "Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case." I don't think it would be sensible for the result in this case to turn on the question of whether Fultz subjectively intended primarily to make a point about abortion or to expose his ex-girlfriend's conduct and/or cause her emotional distress. Rather, the question under Snyder ought to be whether, viewed objectively, what he did is best understood as primarily about expressing a message about a public or private matter.


(5) On its face, it looks like this is primarily a public matter. Individual abortions are of course intensely private but the questions of whether women legally ought to be permitted to have abortions and whether, if so, they ought to be permitted to do so without the consent of the pregnancy's father, are matters of public concern.  So it looks like the Snyder language supports a First Amendment right here.


(6) I'm quite uncomfortable with that result, however, because the ex-girlfriend is identifiable.  Alamogordo has a population of under 40,000 people.  As a small-town resident myself, I think it's fair to say that a great many people in Alamogordo will recognize Fultz in the billboard and therefore know who the ex-girlfriend is.  And of course, the people who will most surely figure out who the ex-girlfriend is are the people that she may have the strongest interest in maintaining her privacy against: friends, family, co-workers, and the like.


(7) Accordingly, I would prefer that--at least with respect to people who are not public officials or public figures and in a case alleging the tort of publicity given to private life--Snyder be read narrowly.  To my mind,  the presence of an objective purpose of discussing a public matter should be deemed insufficient to provide First Amendment protection in such a case, at least where the speaker can make the same point effectively without the invasion of privacy.  Here, I think that could have been done quite readily.  For example, Fultz could have been shown with his face turned away or in silhouette, so that he--and therefore the ex-girlfriend--would not be identifiable.


(8) I realize that this focus on alternative means by which the speaker can make the same point is closer in spirit to Justice Alito's Snyder dissent than to the majority opinion, so perhaps the result I favor is not consistent with Snyder.  But perhaps Snyder could be distinguished on the ground that the case did not deal with a case of publicity given to private life.  It seems to me that unless the First Amendment is going to wipe away such torts entirely, a speaker should not be able to escape liability by gratuitously including private facts about a person in the course of speech about a matter of public concern.  In Snyder, the Court said that there was no reason to think that the Westboro Baptists had some pre-existing gripe with the Snyder family and were simply using their anti-gay, anti-Catholic messages as a means of shielding the private vendetta.  In the Fultz case, that inference is much more plausible, based on the objective circumstances.  Or at least that's how I'd argue it if I were representing the ex-girlfriend.

11 comments:

Paul Scott said...

It seems here, other than (possibly reasonable) speculation, the ex-gf self-identified. The billboard does not mention her at all. It states merely that "the mother" of a child of which he presumes he was the sperm donor, had an abortion.

You have to know a great deal about Greg Fultz to know that the child to which he is referring is this ex-gf (she is not even identified in the AP story).

I don't know the facts, the AP story doesn't relate any relevant details. But it seems that forbidding someone to self-identify (as Fultz does) and tell something about his life just because some other people might draw connections is too much.

Would, for example, it be IIED or defamation, for an author to collect stories from various would-be fathers across the nation and publish those stories in a collection called "almost a father" if those fathers chose to identify themselves (but not the aborting mother)? I hope that is an easy question to answer (though being far from an expert on such matters, it may be that it is not) and if it is, the only thing this turns on is that it is a single instance happening in a small town. That does not seem sufficient reason for me to side against speech.

Michael C. Dorf said...

Paul, in the example you give and the real case, there's probably no valid IIED claim. But invasion of privacy via the tort of publicity given to private life is much closer. Here's the definition from the 2nd Restatement of Torts:

652D. Publicity Given to Private Life

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public."

I think it's fair to say that publicizing the fact that some woman had an abortion qualifies. Note that the case law says to "publicize" need not mean to tell the world in a way that everyone knows: Telling just a few people some intensely private fact about another person can be tortious. So I think that both as a matter of tort law, and what the First Amendment ought to allow of tort law, it's fair to require that when people make statements that make somebody else's intensely private life knowable, even if not for the purpose of exposing that person, the speaker can be held liable--at least absent some way of making the point effectively without revealing someone else's private life.
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Nate W. said...

It seems here, other than (possibly reasonable) speculation, the ex-gf self-identified. The billboard does not mention her at all. It states merely that "the mother" of a child of which he presumes he was the sperm donor, had an abortion.

The billboard originally stated that it was "Created for N.A.N.I. — National Association of Needed Information." Nani happens to be the woman's first name.

You have to know a great deal about Greg Fultz to know that the child to which he is referring is this ex-gf.

And since it was posted in a prominent place in the community where both Fultz and the Plaintiff, along with their neighbors, friends and acquaintances, live, it's reasonable to assume that the audience did know a great deal about Greg Fultz.

The problem here is that the facts strongly suggest that the publication was done with malicious intent. If his primary intent was just arguing against abortion, he could have chosen a different venue, would not have hidden her name in the ad, would not have done it so close in time to the event, and his statements after the fact would not be so transparently dissembling. Of course, that's an issue for the finder of fact, but there's a world of difference between speech motivated by a good-faith desire to tell their story and speech motivated to harm the target.

Nate W. said...

Prof. Dorf:

To my mind, the presence of an objective purpose of discussing a public matter should be deemed insufficient to provide First Amendment protection in such a case, at least where the speaker can make the same point effectively without the invasion of privacy.

I think that Snyder sort of backs you up on this, but I think the key is malice, not alternate means. That is to say, I think that the Court would rule that the First Amendment protects the intentional but non-malicious broadcast of private facts about a person when the broadcaster's purpose was to highlight a matter of public concern, but the broadcast of the private facts was not necessary to highlight the matter of public concern.

In pages 6-9 of the slip opinion, the Court discusses the public concern test and seems to lay out two standards. First, the "overall thrust and dominant theme" of the speech must be about an issue of public concern. Second, the airing of a public concern cannot be used "to mask an attack...over a private matter." It appears that the Court is looking for malicious intent against the Snyders personally, and (correctly, IMO) concluding that there was none.

As I mentioned in my previous comment, I think that alternate means is a relevant factor in determining whether malice existed. I just think that alternate means as a standard would just be too prohibitive.

Of course, since the Court has reaffirmed that the public concern test is a balancing test, it may be that non-malicious publication of private facts that have very little nexus to the public issue or that are aired in a grossly inappropriate venue might be actionable without a showing of malice. However, I think that those kinds of "gross stupidity or douchiness" cases would be vanishingly rare.

Michael C. Dorf said...

Nate W: Nice points. A colleague of mine also thought that my bottom line is consistent with Snyder for roughly the reasons you state. The key, I think, would be to define "malice" to mean something like "objective malice" rather than subjective malice--and so, as you say, gratuitousness would play a large role in figuring out whether the words connote malice.

Laura said...

Quick question- New Mexico's privacy law prohibits the public disclosure of private facts for certain medical procedures (http://www.peacocklaw.com/seminar/privacy.pdf pg 11). Isn't abortion a medical procedure in New Mexico?
And as far as the rights of the father being part of public debate, couldn't this debate continue without disclosing personal information of women who have had abortions? There is nothing new added to the discourse except the identity of a woman who has had an abortion- the only purpose of it would seem to be opening her up to personal attack.

Laura said...

Ah yeah, above posters covered my second point under 'malicious intent'.

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