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.