When Facts About Another’s Life Are Also Facts About Your Life

Greg A. Fultz put up a billboard showing himself holding what appears to be empty space, with the words “This Would Have Been A Picture Of My 2-month Old Baby If The Mother Had Decided To Not KILL Our Child!” and some endorsements (apparently later removed) from pro-life groups, including the words “PRO LIFE” and “RIGHT TO LIFE.” The billboard didn’t identify the man’s ex-girlfriend, but presumably some people who knew him and her would figure it out. (The billboard did at first say “Created for N.A.N.I. – National Association of Needed Information,” though that was later removed, and Nani is the ex-girlfriend’s name; but I take it that no-one would identify the girlfriend from that, unless they had already figured out her identity because they knew who the man was.)

Then, as the Alamogordo News reported on June 3:

An Otero County Domestic Violence Court hearing commissioner recommended … an order of protection be granted to Nani Lawrence because Greg A. Fultz displayed a pro-life billboard about their relationship, which violated Lawrence’s right to privacy … [and] recommended the billboard be taken down by 8:15 a.m. on June 16.

Twelfth Judicial District Judge James W. Counts is expected (today) to sign the order of protection and an order to remove the billboard located on White Sands Boulevard between First and Second streets. [Later press accounts say the order was indeed entered, though I've also heard a claim that the District Judge has not yet decided. -EV]

There are many interesting First Amendment questions, and factual questions, here. Factually, Fultz now says he doesn’t really know whether the ex-girlfriend had had an abortion or a miscarriage, because the girlfriend hadn’t told him; at the same time, press accounts suggest she was just arguing invasion of privacy and not libel, so perhaps his allegation is accurate after all. Legally, I suspect that a restraining order command the removal of a billboard — entered without a full trial on the merits — would be an unconstitutional prior restraint, even if the speech could be the subject of civil damages liability after the fact. I’ve also argued that the disclosure of private facts tort is generally unconstitutional, though that’s a minority view; and there’s also the question whether such statements about someone’s abortion are outside the disclosure tort because they’re a matter “of legitimate concern to the public,” since they are connected to the hotly debated topic of abortion. (That might seem to be a stretch, though for a case holding that the identification of a rape victim, based on the public concern about reports of crime, is a matter of legitimate public concern under the First Amendment, see Florida Star v. B.J.F.) And I don’t know whether substantive New Mexico restraining order law authorizes anti-”harassment” orders that bar speech about the complainant, rather than speech to the complainant.

But let me set all these aside, and focus on a different, and less obvious, matter: While the fact pattern here is highly unusual (who buys billboards for such personal matters?), there are closely analogous patterns that are quite routine.

To begin with, note that whether an ex-lover has aborted what would have been your child is just one of many highly personal matters about a relationship. If it’s covered by the disclosure of private facts tort, then so would be quite a few other facts: whether your ex cheated on you, whether you and your ex had had sex, whether you found your ex to be sexually satisfying, whether your ex was impotent, whether your ex left you because he or she is actually gay (or, if you’re gay, because he or she is actually straight), whether your ex has cancer, whether your ex gave you a sexually transmitted disease, and so on. Some of these might be seen as marginally less “private” than the question whether your ex had had an abortion, but I don’t think there’d be any real constitutional difference between the two, or difference with respect to the common-law boundaries of the disclosure tort (or of state law relating to protection orders).

And note also that people often discuss these things when discussing their own lives. People who write their autobiographies often talk about why their marriages or relationships broke up, why they were depressed for a particular period of their lives, how their exes’ behavior affected their own later personality and behavior, and more. And of course these days lots more people are “writing their autobiographies”: They’re just called Facebook pages, blogs, Twitter feeds, and the like. “Dumped my girlfriend ’cause I caught her cheating with my best friend.” “I have to tell the truth about this: I have HIV, because my ex-husband gave it to me.” “I’m crushed: My boyfriend, who I thought was going to ask me to marry me, told me he’s gay.” (The disclosure tort is generally seen as not applying to communications to “a single person or even to a small group of persons,” so perhaps if you have just a few Facebook friends, a Facebook post wouldn’t be potentially covered by the disclosure tort. But if you have hundreds of Facebook friends, the tort would likely apply, as it would if you’re publishing things on an open blog or similarly open social-media system.)

So what should the law be in these situations? Should it protect the privacy of your exes (or your former friends, your family members, your former coworkers, and whoever else you’re talking about), even if that means that you can’t tell your life story, either in a traditional autobiography or in its modern running equivalents? Should the law allow you to discuss your personal life, even if in the process people will learn personal details about the lives of others, and will learn them even if you omit the others’ names (as in the billboard incident)? Or should the law focus on your supposed motive, and distinguish supposedly good-faith attempts to tell your life story, either in retrospect or as it happens, from supposed attempts to humiliate people you think have wronged you — and, if so, how can the law reliably and predictably do this, whether with the traditional autobiography or with Facebook or blog posts?

I’m inclined to say that you should indeed have the right to discuss your life, even if you reveal information about others in the process; but, as I mentioned, I generally disapprove of the disclosure tort, so that’s an easy matter for me. I raise the autobiography / Facebook running autobiography examples because I think they might be interesting for people who are more open to the disclosure tort, but who also are open to people’s rights to talk about their own lives.

Finally, here are three relatively recent cases on the subject (for a case that reaches the opposite result, but before modern First Amendment law developed, see Cason v. Baskin (Fla. 1944)).

1. Campbell v. Seabury Press (5th Cir. 1980): “The autobiography, ‘Brother to a Dragonfly,’ concerns the life of a contemporary religious and civil rights leader. It develops as a major theme the fraternal affection between the author and his older brother, Joseph. The book demonstrates the major role Joseph played both in the author’s religious maturation and his involvement in civil rights activities. The challenged disclosures regarding the plaintiff’s homelife and marriage to Joseph are included in the autobiography in the context of her relationship with Joseph and the impact of that relationship on the author….

“In this action, the plaintiff argues that the defendants tortiously invaded her privacy by including in the autobiography private facts relating to her homelife and marriage with the author’s brother, Joseph Campbell. On appeal, the plaintiff does not allege that the private facts as presented in the book are untrue. Neither does she contend that the book is without legitimate public interest. Rather she argues that no logical nexus exists between the matters of legitimate public interest and her homelife and marriage to Joseph Campbell to justify the inclusion of the challenged material in ‘Brother to a Dragonfly.’ A review of the record in this action clearly shows the requisite logical nexus. An account of the author’s close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection. Accordingly, the district court properly granted the defendants’ motions for summary judgment on the invasion of privacy claim.”

2. For a case that involves autobiographical information about someone who wasn’t at all a well-known figure (though should people’s rights to tell their own life stories really turn on whether they are already famous?), see Anonsen v. Donahue (Tex. Ct. App. 2003): “Miriam (Mickey) Booher appeared as a guest on the Phil Donahue Show, the subject matter of which was pregnancies resulting from incest or rape. Booher told a nationwide audience the story of her husband’s rape of her daughter from a previous marriage [Anonsen] when the child was 11 years old. Booher also revealed that she had never reported the rape to authorities; that she had remained married to her husband for some 16 to 17 years after the incident; and that her 16-year-old adopted son, who had been raised as her daughter’s adopted half-brother, was actually her daughter’s biological child. Although the names of Booher’s husband, daughter, and grandson were not disclosed on the air, Booher used her own full name…. [Plaintiffs'] complaint is that by disclosing her own identity, Booher effectively disclosed their identities as well, thus exposing the incestuous rape of Anonsen and the circumstances of her child’s birth to a nationwide audience.”

The court concluded that Booher’s speech was constitutionally protected. “Booher, like her daughter and grandson, is herself one of the victims of the family tragedy of incest. Her reactions to that tragedy, the impact on her life of her daughter’s rape, the birth of the child of that rape, whom she adopted and raised as her own, and her eventual discovery of the truth about her husband — all comprise her story as well as that of the other family members. Therefore, we are unable to agree with appellants’ contention that a jury should be allowed to determine whether Booher’s voluntary, undisguised appearance on the Donahue show was [legally actionable].”

3. Bonome v. Kaysen, 17 Mass. L. Rptr. 695 (Mass. Super. Ct. 2004): “In the early 1990s, … Kaysen was an author living in Cambridge. She had gained success and notoriety for her book Girl, Interrupted which was made into what has been described to be a critically acclaimed film. In 1994, Bonome met Kaysen and the two began having an affair, including a physical relationship. Kaysen pressured Bonome to leave his wife, and Bonome ultimately succumbed to that pressure. Bonome divorced his wife in 1996 and shortly thereafter moved into Kaysen’s home, where they continued the relationship.

“Within six months or a year into the relationship, Kaysen began to experience severe vaginal pain. She began to regularly see doctors for her problem, but over the course of several years was unable to receive sufficient curative treatment. During this time period, she began working on a new book, which book is the subject of this case….

“In 2001, Random House published the book. The book only refers to Bonome as Kaysen’s ‘boyfriend’ and alters details about his life — such as where he was from, and his occupation [though people who knew he had been involved with Kaysen eventually recognized him -EV]. The book is an autobiographical memoir chronicling the effects of Kaysen’s seemingly undiagnosable vaginal pain in a series of ruminations about the condition’s effects on many aspects of her life, including her overall physical and emotional state, friendships, and her relationship with her boyfriend. It details her intense pain and discomfort and her many fruitless attempts to obtain an accurate medical diagnosis and effective treatment.

“One of the central themes of the book concerns the impact of her chronic pain on the emotional and physical relationship with Kaysen’s boyfriend. To that end, the book details, graphically on a few occasions, several sexual encounters between them. It portrays the boyfriend as becoming increasingly frustrated and impatient with Kaysen’s condition and her reluctance and/or refusal to engage in physical intimacy. The boyfriend is described as ‘always bugging [her] for sex’ and ‘whining and pleading’ for sex, as well as being ignorant and insensitive to her emotional and physical state. In this vein, it attributes many aggressive and overtly offensive sexual quotes to him. Ultimately, the development of this theme culminates in a scene where the boyfriend is physically forceful in an attempt to engage her in sex. This scene is followed by ruminations about whether the relationship had exceeded the bounds of consensual sexual relations into the realm of coerced non-consensual sex.”

The court concluded, among other things, that “Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.”