# Ex-BF erects billboard claiming ex-GF aborted their baby. His free speech vs her privacy rights **URL:** \ **Category:** Great Debates\ **Created:** [June 7, 2011, 4:30am UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595 "2011-06-07T04:30:52Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 7, 2011, 6:21pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/81 "2011-06-07T18:21:56Z")
> [@Magiver](#): > > She has the legal right to kill her child but she can’t possibly expect to hold the father of the child to some kind of invisible gag order. Yes, she can. As outlined above, publicly broadcasting private information that is non-newsworthy and offensive is subject to a civil suit. It’s no different than if he put up a billboard saying she had a hysterectomy or was lousy in bed (or, hell, that she slept with him in the first place, all things considered - I’d certainly be offended if that were revealed). The only defenses I can see him putting up to that particular claim are that (a) she wasn’t named, so he was only revealing personal information about himself and (b) an abortion does not rise to the level of “highly offensive to a reasonable person”. The second seems pretty unlikely, as I think most jurors would agree that having that information made public would be offensive. (a) is his strongest defense, IMO. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 7, 2011, 6:21pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/82 "2011-06-07T18:21:59Z")
If I had just seen that sign by the side of the road, my first instinct would be that it wasn’t even necessarily a real case. Just some pro-life group hiring some guy to pose as the Father. As regards a “Public disclosure of private facts” suit, does the defendant’s connection to the matter not weigh at all? If I was talking about that time I had sex on the altar after Sunday service, I’m not allowed to mention it was with Sister Mary? ---
**Author:** ![DianaG](https://avatars.discourse-cdn.com/v4/letter/d/7ab992/32.png) [@DianaG](https://boards.straightdope.com/u/DianaG)\ **Post date:** [June 7, 2011, 6:23pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/83 "2011-06-07T18:23:51Z")
Well you’re allowed, but it’s not very gentlemanly. ---
**Author:** ![Jackknifed\_Juggernaut](https://avatars.discourse-cdn.com/v4/letter/j/9de053/32.png) [@Jackknifed\_Juggernaut](https://boards.straightdope.com/u/Jackknifed_Juggernaut)\ **Post date:** [June 7, 2011, 6:24pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/84 "2011-06-07T18:24:32Z")
Hmmm, who would’ve thought that an abortion debate would break out in _this_ of all threads? And how coincidental that every single one of these debates ends in a disagreement about what abortion really is. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 7, 2011, 6:28pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/85 "2011-06-07T18:28:59Z")
> [@Whack-a-Mole](#): > > It is my understanding that public figures have less expectation of privacy than non-public people. > > Further, parody is a protected form of speech. > > Further still the claim by Flynt is so over the top as to be unbelievable by most on the face of it. > > None of that applies in this case. Your reasoning is faulty here. The difference between a public figure and a non-public figure in American defamation law is: 1. A public figure must prove that a false, statement of fact tending to harm his or her reputation was made _with actual malice (actual knowledge that the statement was false) or with reckless disregard for the truth_. 2. A non-public figure is not obligated to show that there was actual malice or reckless disregard for the truth. Falwell did not lose because of this difference. He did not lose merely because parody is protected as free speech. He lost because the court found that the statement in question did not harm his reputation because no one would believe it was true. This principle would apply regardless of whether the plaintiff was a public figure. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 7, 2011, 6:34pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/86 "2011-06-07T18:34:11Z")
> [@Jas09](#): > > Yes, she can. As outlined above, publicly broadcasting private information that is non-newsworthy and offensive is subject to a civil suit. . He didn’t broadcast anything. She was not mentioned. It could have been anybody. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [June 7, 2011, 6:35pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/87 "2011-06-07T18:35:22Z")
> [@Maggie\_the\_Ocelot](#): > > Oh please. There is NOTHING MORALLY WRONG with having an abortion. uh huh. ---
**Author:** ![Maggie\_the\_Ocelot](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@Maggie\_the\_Ocelot](https://boards.straightdope.com/u/Maggie_the_Ocelot)\ **Post date:** [June 7, 2011, 6:35pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/88 "2011-06-07T18:35:32Z")
> [@Jackknifed\_Juggernaut](#): > > Hmmm, who would’ve thought that an abortion debate would break out in _this_ of all threads? And how coincidental that every single one of these debates ends in a disagreement about what abortion really is. Sorry. That whole bit just really ticked me off for some reason. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 7, 2011, 6:35pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/89 "2011-06-07T18:35:32Z")
> [@Magiver](#): > > He didn’t broadcast anything. She was not mentioned. It could have been anybody. Well, as we say in the law, that is merely a question of fact. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 7, 2011, 6:39pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/90 "2011-06-07T18:39:48Z")
> [@CarnalK](#): > > As regards a “Public disclosure of private facts” suit, does the defendant’s connection to the matter not weigh at all? If I was talking about that time I had sex on the altar after Sunday service, I’m not allowed to mention it was with Sister Mary? As I noted in post #68 it seems like disclosure of private facts is her best route. If you are talking to your friend and mention you had sex with Sister Mary is different than you taking out a 40 -foot billboard to advertise you had sex with Sister Mary. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2011, 6:43pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/91 "2011-06-07T18:43:41Z")
> [@Whack-a-Mole](#): > > Maybe not libel but how about this: > > Seems a case could be made under this. I don’t think so, although I welcome correction from someone more familiar with the tort than I. The Restatement (Second) of Torts § 652D comment [a], provides _in pari materia_: > [@](#): > > The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. “Publicity,” as it is used in this Section, differs from “publication,” as that term is used in § 577 in connection with liability for defamation. “Publication,” in that sense, is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. > Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. There would be no problem with this element if the billboard identified the woman, but since it does not name her or show her picture, it seems to me that the woman is identified only to that group who knows that this is her boyfriend and knows that it is to their relationship that the billboard refers. There don’t appear to be cases directly on point. But in _Fernandez-Wells v. Beauvais_, 983 P. 2d 1006 (NM Ct App 1999), the court found no publicity from a letter to the New Mexico Secretary of State: > [@](#): > > Even the most inclusive common-law definitions of “publicity,” however, were not met in this case. Disclosure by letter to the Secretary of State’s office does not constitute widespread publicity. Plaintiff makes no allegation that Defendant could have expected public disclosure to arise from Defendant’s mailing a letter to the Secretary of State, as would be the case, for example, if the document became a public record available to the press and others. On the other hand, in Michigan: > [@Beaumont v. Brown](#): > > An invasion of a plaintiff’s right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure, or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person were not a public figure. So at least one jurisdiction (but not New Mexico) finds that “public” can be more limited than the general public. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 7, 2011, 6:47pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/92 "2011-06-07T18:47:31Z")
> [@CarnalK](#): > > As regards a “Public disclosure of private facts” suit, does the defendant’s connection to the matter not weigh at all? If I was talking about that time I had sex on the altar after Sunday service, I’m not allowed to mention it was with Sister Mary? No, your degree of closeness to the person or events is irrelevant. The elements of a claim for public disclosure of private facts are: 1. The disclosure is to the public. 2. The facts would otherwise not be generally known to the public. 3. Publication of these kinds of facts about a reasonable person of ordinary sensibilities would be offensive to such a person. 4. The facts are not of legitimate public concern. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 7, 2011, 6:47pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/93 "2011-06-07T18:47:45Z")
> [@Bricker](#): > > > [@](#): > > > > Even the most inclusive common-law definitions of “publicity,” however, were not met in this case. Disclosure by letter to the Secretary of State’s office does not constitute widespread publicity. Plaintiff makes no allegation that Defendant could have expected public disclosure to arise from Defendant’s mailing a letter to the Secretary of State, as would be the case, for example, if the document became a public record available to the press and others. That seems a critical difference here. There is a distinct difference between a letter sent to the Secretary of State that (sounds like) was not even public record and a freaking 40-foot billboard. Further, while the only people who might know immediately who the woman is are people who knew the couple it is not amiss to think they’d talk about it to others. (Afterall he is identifiable…if he wanted to make a point about abortion the person pictured could have been a model or a drawing or a silhouette…this guy wanted her publicly outted on this and merely put the thinnest veil to not identify her directly). Hell, it has become a story in numerous papers. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 7, 2011, 6:48pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/94 "2011-06-07T18:48:28Z")
> [@Magiver](#): > > He didn’t broadcast anything. She was not mentioned. It could have been anybody. > [@Acsenray](#): > > Well, as we say in the law, that is merely a question of fact. Yup. That’s what will be decided at trial (if it gets that far). As **Bricker** points out, it depends on how large of a group is being made aware of the information, and their relationship to the person in question - if her entire circle of friends, her employer and her co-workers, and her church members (just as assumptions here) are all made aware of this private action then I could easily see a jury finding in her favor. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2011, 6:52pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/95 "2011-06-07T18:52:40Z")
> [@Whack-a-Mole](#): > > That seems a critical difference here. > > There is a distinct difference between a letter sent to the Secretary of State that (sounds like) was not even public record and a freaking 40-foot billboard. Yes. The letter unambiguously names the person it defames; the billboard contains no name or image of the person it supposedly defames. > [@](#): > > Further, while the only people who might know immediately who the woman is are people who knew the couple it is not amiss to think they’d talk about it to others. Not relevant. The question is who you publish it to, not what those people do with it. > [@](#): > > Hell, it has become a story in numerous papers. Yes. But did this happen because she sued him, voluntarily identifying herself, or because of the billboard? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2011, 6:54pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/96 "2011-06-07T18:54:56Z")
> [@Jas09](#): > > Yup. That’s what will be decided at trial (if it gets that far). As **Bricker** points out, it depends on how large of a group is being made aware of the information, and their relationship to the person in question - if her entire circle of friends, her employer and her co-workers, and her church members (just as assumptions here) are all made aware of this private action then I could easily see a jury finding in her favor. Actually, this is why I hoped someone more familiar with tort law would step in and do some research on whether New Mexico has adopted the Michigan standard I quoted. Right now, it seems like New Mexico does not care if the small group is your prayer circle or not, but I have little talent for sifting through annotated civil cases. There was a reason I chose criminal law: it makes sense. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [June 7, 2011, 6:56pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/97 "2011-06-07T18:56:32Z")
> [@Bricker](#): > > There would be no problem with this element if the billboard identified the woman, but since it does not name her or show her picture, it seems to me that the woman is identified only to that group who knows that this is her boyfriend and knows that it is to their relationship that the billboard refers. I see nothing in comment (a) that requires the subject of the publicity to be referred to by name. I do see that “publicity” is defined as “communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” I think posting information, particularly information of an inflammatory nature, on a billboard certainly counts as “communicating it to the public at large,” and indeed, in such a way that the mother’s identity is “substantially certain to become . . . public knowledge” by foreseeable gossip—which, after all, is precisely why the comment allows disclosure to a large enough group to operate as a proxy for disclosure to the general public. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2011, 7:02pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/98 "2011-06-07T19:02:14Z")
> [@Kimmy\_Gibbler](#): > > I see nothing in comment (a) that requires the subject of the publicity to be referred to by name. I do see that “publicity” is defined as “communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” I think posting information, particularly information of an inflammatory nature, on a billboard certainly counts as “communicating it to the public at large,” and indeed, in such a way that the mother’s identity is “substantially certain to become . . . public knowledge” by foreseeable gossip—which, after all, is precisely why the comment allows disclosure to a large enough group to operate as a proxy for disclosure to the general public. You wouldn’t have better luck than I in finding any caselaw, by chance? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 7, 2011, 7:21pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/99 "2011-06-07T19:21:35Z")
> [@Kimmy\_Gibbler](#): > > I see nothing in comment (a) that requires the subject of the publicity to be referred to by name. I think it’s pretty well established in defamation law that the allegedly defamed party must be identified in some way, even if not by name. If no one knows it’s about you, how can your reputation be harmed? ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [June 7, 2011, 7:31pm UTC](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595/100 "2011-06-07T19:31:23Z")
> [@Bricker](#): > > You wouldn’t have better luck than I in finding any caselaw, by chance? My Google Scholar search of NM case law mainly turned up the cases you cited. I will note that the NM court apparently acknowledged the Michigan rule you cited above (that publicity may apply to a less-than-general-public group if that smaller group has a special relationship with the subject of the publicity, as say, family members, close friends, business associates) without averring on whether that was the rule in NM or not. **Acsenray** , my point is that objecting that the billboard does not name the mother is, in my opinion, not conclusive. We agree that there are ways to identify a person without naming them. “Greg Fultz’s girlfriend” could very well be one such way. Were they married and the billboard had a picture of Greg Fultz and text reading “My wife had an abortion,” I don’t think anyone would say, “Well, I guess it’s OK because her name isn’t used.” Now marriage is a matter of public record, but I don’t think being a matter of public record is the essential predicate to finding that a no-name billboard has nevertheless identified a person. [Previous page](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595.md?page=4) [Next page](https://boards.straightdope.com/t/ex-bf-erects-billboard-claiming-ex-gf-aborted-their-baby-his-free-speech-vs-her-privacy-rights/584595.md?page=6)