There is an interesting free speech case out of Otero County, New Mexico. Hearing commissioner Darrell Brantley of the Otero County Domestic Violence Court has recommended an order of protection for Nani Lawrence against Greg A. Fultz after Fultz paid for a pro-life billboard criticizing the abortion of their alleged child. Brantley also wants the billboard taken down as a violation of Lawrence’s right of privacy.
It now goes to Twelfth Judicial District Judge James W. Counts, who is expected who is expected to sign the order of protection and an order the removal of the billboard.
The billboard shows Fultz, 35, holding what appears to the outline of a baby in his arms with the statement, “This Would Have Been A Picture Of My 2-month Old Baby If The Mother Had Decided To Not KILL Our Child!” Notably, the billboard does not name Nani Lawrence. However, in a rather transparent reference, Fultz displays the endorsement of an organization he created called National Association of Needed Information. That’s right N.A.N.I.
Fultz later removed the endorsement of N.A.N.I. from the billboard.
Lawrence’s attorney Ellen Jessen said the order of protection was recommended under the Family Violence Protection Act.
The issue was closer when N.A.N.I. appeared on the sign, but it becomes a serious question of free speech if it is a statement from a father opposed to the abortion of the child. This is personal information for both the father and mother. Presumably, either part has a right to discuss his or her own experience with abortion. If true, it is not defamation. The right to privacy includes the tort of intrusion against seclusion and the public disclosure of embarrassing private facts.
The intrusion tort doesn’t fit because this is the disclosure of a fact disclosed to the father. The public disclosure tort runs into the same problem as a disclosed fact without any agreement to keep the information confidential. More importantly, this is a claimed injury or harm to the father coupled with a strong philosophical or religious view that he wishes to discuss publicly. Just as the original Jane Doe has discussed her abortion (and later opposition to abortion), a father should have the same right to publicly discuss his own experience. His use of the name was unnecessary and problematic. However, I am not sure that he could not reveal the name as long as he is speaking truthfully under the common law. The question is the obligation of a former boyfriend to keep the fact of the abortion secret.
There is also the question of balancing the remedy against the right now that the woman’s name is public. Does this mean that Fultz cannot discuss his views and alleged harm in public for the rest of time?
What do you think?
Source: Alamogordo News as first seen on Reddit.