Ex-BF erects billboard claiming ex-GF aborted their baby. His free speech vs her privacy rights

[Acsenray]

@Merneith

1. I don’t think it’s defaming her to say that she had an abortion, unless of course she didn’t have an abortion.

Yes, that is the potential defamation. She claims she had a miscarriage.

2. I’m fuzzier on the whole right to privacy thing for individuals and gossip about them. I guess (from reading this thead) it’s against the law? I guess there’s a difference between just gossiping and taking out an ad. But my admittedly limited understanding on the constitutional right to privacy, such as it is, is a right to make personal decisions for oneself - not a right to avoid being talked about.

It’s not the constitutional right to privacy that’s at issue. It’s the common law right to privacy, which we’ve talked about quite a lot in this thread. Yes, under certain circumstances, you do have a right as a non-public person not to have your private business made public without your permission.

3. Saying that she killed his child is defamation, IMO, even if, in his sad little brain, that’s what he thinks happened. Abortion is a legal medical procedure. It’s not murder. Anti-abortionists shouldn’t be allowed to frame the discussion on their terms.

I don’t think this is defamation in a legal sense. It’s pretty clear what is meant. Defamation law takes in to account the likely understanding of the public. If people are likely to understand that the billboard is talking about abortion than literal murder, then there’s no issue here.

4. That said, if he hadn’t named her, I think he could plausibly claim he wasn’t talking about her, specifically.

Not necessarily. You don’t have to use someone’s name necessarily to identify them to the public. The point would be whether people who knew her understood that she was the one he was talking about.

5. If had kept her name out of it, she could have reasonably just shrugged off the news. She could just say, “What? Fultz? Oh I dumped him months ago. Feel bad for his current girlfriend.”

What would the public believe? That’s a key aspect of defamation and privacy law. The bare fact that she could possibly deny that it’s her that’s being talked about isn’t dispositive.

6. Even though he’s a schmuck, I do think freedom of speech is just as important as reproductive freedom, especially when I hate what’s being said. Calling a specific person a murder for undergoing a legal procedure is defamation and harassment, but if he’d phrased it something like, “I wish my girlfriend had kept our baby”, and kept her identity out of it, I think it would have rightfully passed muster.

Again you’re forgetting the common law right of privacy.

[Merneith]

@Acsenray

Yes, that is the potential defamation. She claims she had a miscarriage.

Well, that should be provable in a court of law. Not that she had a miscarriage, I mean, but if she had instead an abortion, there would be medical record of the fact. And medical privacy aside, if she sued him for defamation, I’m betting the judge would insist on allowing evidence that she did seek medical help for an abortion.

I don’t know if they’re proceeding with the defamation in light of the current billboard-removal order.

It’s not the constitutional right to privacy that’s at issue. It’s the common law right to privacy, which we’ve talked about quite a lot in this thread. Yes, under certain circumstances, you do have a right as a non-public person not to have your private business made public without your permission.

Yeah. And the question in this case, is, is this one of those certain circumstances. I’m not sure it’s a given that it is. But that’s why they have horse races and court cases.

I don’t think this is defamation in a legal sense. It’s pretty clear what is meant. Defamation law takes in to account the likely understanding of the public. If people are likely to understand that the billboard is talking about abortion than literal murder, then there’s no issue here.

Like Czarcasm posted upthread, I’m not sure that, on casual viewing as a person drives by, they would have time to read both the headline and all the right-to-life logos. That said, I’m not inclined to agree that calling a woman a murderer would be obviously not-defamatory.

Not necessarily. You don’t have to use someone’s name necessarily to identify them to the public. The point would be whether people who knew her understood that she was the one he was talking about.

What would the public believe? That’s a key aspect of defamation and privacy law. The bare fact that she could possibly deny that it’s her that’s being talked about isn’t dispositive.

The people who knew her enough to recognize that the billboard was talking about her would also know that she dumped this guy a while back.

Again you’re forgetting the common law right of privacy.

Yeah, but does the common law right to privacy trump the constitutional right to free speech? I’m guessing, most of the time, it doesn’t, and honestly, I wouldn’t want it to.

1. Is he lying?
2. Is he harassing her?

If the answer to both of those is “No” - then I think the billboard is a dick move but not illegal.

If he’s lying - then that’s defamation, and there a legal remedies for that.

If he doesn’t name her personally and just talks about it in generalities (and if it really happened) - then I don’t think that’s harassment. If it really happened, and I understand that’s an if, then it is a real event in his life and I don’t think he’s under any obligation to hide that fact.

I think the final decision about an abortion is up to the woman - but I don’t think that imposes some sort of cone of silence on anyone who learns of it.

If, hypothetically, he didn’t lie, and, hypothetically, he’d talked generally about something that happened in his life, I think he’d be on safe ground.