The proposition has faced bipartisan opposition due to its sweeping language but it is expected to pass. After the Dobbs decision, each state may establish its own laws on abortion services.
In an open letter Petty objects that the widely disseminated video depicts her as collapsed in sorrow in June over the overturning of Roe v. Wade. Superimposed over her image was the word “sad,” implying that Petty’s reaction was one of devastation instead of joy.
In her letter and tweet, Petty says “Hey Hillary, I’m the girl crying in this video. I am pro-life and those are HAPPY tears because I just witnessed a MIRACLE!”
As part of a deeply pro-life and religious family, Petty expressed “outrage” in an interview with The Christian Post. After her objections, her image was removed though the original video is still accessible on social media.
The question is whether such a false portrayal is actionable. In her letter, Petty alleged the footage “portrayed me in an evil light and distorted my emotions as part of your political games.”
Defamation
Petty has clearly alleged that her reputation has been harmed by the portrayal in the ad, which is being used to push a constitutional amendment that she vehemently opposes.
For the purposes of defamation, Petty is presumably a non-public figure.
In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The standard was later extended to public figures. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.”
A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
I do not see why participating in a protest would make Petty even “a limited public figure”, though it is not clear if she gave public statements or served in a more public organizational role.
The statement that Petty was “sad” about the ruling is clearly false and strongly suggests that she supports the right to abortion.
False Light
In objecting to the portrayal in “an evil light,” Petty may have a case for “false light.”
The case raises a classic “false light” claim as opposed to a conventional defamation claim. While some states have rejected false light claims in favor of using defamation actions exclusively, California recognizes both claims. (Many judges resist both claims going to a jury since they are based on different underlying claims of a false statement as opposed to a false implication. Courts will often dismiss one claim in favor of the other before trial).
Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.
California produced an important case that is particularly illustrative in this circumstance. In Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.
Petty does have a basis for claiming the elements of the offense. Here are the elements in the standard California jury instruction:
1. That [name of defendant] publicly disclosed information or material that showed [name of plaintiff] in a false light;2. That the false light created by the disclosure would be highly offensive to a reasonable person in [name of plaintiff]’s position;3. [That there is clear and convincing evidence that [name of defendant] knew the disclosure would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;][or][That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its disclosure;]4. [That [name of plaintiff] was harmed; and][or][That [name of plaintiff] sustained harm to [his/her/nonbinary pronoun] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
Petty could show falsehood in the portrayal of being pro-choice and supporting Roe v. Wade. In Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found false light in the use of an actor’s photo on the cover of Playgirl magazine. In combination with the headlines, the plaintiffs argued that the magazine created the false impression that nude photos of the actor were featured inside the magazine.
Petty can also argue that the implication is highly offensive to her on political and religious grounds. Indeed, she notes that her family has long been active in the pro-life movement and it is in her “DNA.” While many would argue that being considered pro-choice is not harmful to a reputation, Petty insists that she views the position as immoral and the image also suggests a degree of hypocrisy given her past advocacy.
She can also show that she is sufficiently identified in the video and that the video was publicly disclosed and disseminated.
She can also make a compelling claim of fault that there was no effort to confirm if she was one of many of the pro-life protesters outside of the Court. There were large groups on both sides and many were crying from joy or regret.
The fact that the video is used for political purposes does not make it opinion or otherwise protected in my view. This is not a case where defenses of opinion or parody would be compelling.
Petty would need to show harm. Her objections were publicly made and covered by national media outlets like the New York Post and Fox News. Her image was then taken down from the video. A jury or court could find the actual harm or damages to be de minimus. However, that is generally a matter left to discovery and the trial in terms of the scope of harm.
It is not clear if Petty wants to sue. The most obvious defendants are the makers of the video and the California Democratic Party. It could be more of a challenge to pursue Clinton and Newsom who retweeted and distributed the video. It is not clear if they continued to distribute the video after knowing the false implication of that one image. As a video used in the midst of an important political debate, courts may be leery of imposing tort damages that might chill political speech.
Petty has one year to decide whether to file for defamation under California’s statute of limitations.