I asked Prof. Sonja West (University of Georgia) whether she had some thoughts on the case, because she had written two articles that relate to the question: The Story of Me: The Underprotection of Autobiographical Speech and The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy. She was kind enough to pass along the following; I’m not sure I would entirely agree with the line she proposes — having constitutional protection turn on the speaker’s motive in this situation strikes me as too likely to lead to error, and to undue deterrence of speech — but I wanted to pass along her views in any event:
Eugene’s post about Greg A. Fultz’s billboard lashing out at his ex-girlfriend for allegedly having an abortion hits on an important conflict between free speech and privacy — what should happen when someone speaks about his own life and, in doing so, reveals private information about someone else.
Assuming that Fultz was telling the truth about the abortion (a matter that appears to be under some dispute), the question becomes whether it matters that Fultz was talking about something that happened to him personally. In other words, should there be heightened First Amendment protection for truthful autobiographical speech?
It is easy to tweak the scenario here to see the difference the autobiographical interest can make. Imagine that instead of Fultz, the speaker was some other third party — a friend, a community member or a co-worker — who somehow learned about the abortion and decided to broadcast the information publicly. This is the scenario our laws are equipped to handle. We ask whether the information is true; whether it was communicated to enough people; whether the disclosure would be highly offensive to a reasonable person; and whether it is a matter of public interest. But we do not look at whether the speaker was talking about his own life experiences.
Now we can add back in the autobiographical interest. In this version (and I’m taking some liberties with the Fultz case here), the speaker is profoundly affected by the abortion of his unborn child. It fills him with emotions and becomes a pivotal moment in his life. He wishes to speak about it publicly both to inform others and because he finds it cathartic. Are these two cases are different? Unlike the third-party speaker, Fultz is talking about his own life not someone else’s — should that matter?
I have written two articles arguing that the answer to that question is “yes.” The first piece, The Story of Me: The Underprotection of Autobiographical Speech, argues that courts should take into account the unique value of truthful autobiographical speech. Currently we give the autobiographical speaker the same amount of constitutional protection as the spreader of salacious gossip. If he can’t prove his speech involves a matter “of legitimate concern to the public,” then it is vulnerable to being censored or punished. My second article, The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy, attempts to address this emerging conflict between autobiographical speech and information privacy. I conclude that a number of courts have implicitly adopted the view that the “offensiveness” element of the public disclosure tort includes a look at the purpose for the disclosure. In other words, if another’s personal information is disclosed for a sufficient reason (and I argue autobiographical expression is a sufficient reason) it should be protected.
So where does all this leave us with Greg Fultz and his billboard? I would propose we examine the primary purpose behind his disclosure to determine if he spoke with an autobiographical intent. What would a reasonable person conclude was the motive behind his speech? Was he trying to harass his ex-girlfriend or cause her emotional harm? (If so, the case might be decided under harassment law or the tort of intentional infliction of emotional distress but not as an autobiographical speech issue.) Was he trying to make a political statement? (If so, his speech might be protected as commentary on a matter of public concern but not as an autobiographical speech issue.) Or was he simply trying to talk about his own life experiences?
I think Fultz could make a pretty strong argument that the primary purpose behind his billboard was to talk about the impact the abortion had on his life. The image of him smiling down at the empty outline of a baby is a powerful statement of the loss he supposedly feels, and the attack on the ex-girlfriend for allegedly deciding to “KILL our child!” clearly shows his resulting anger. As Eugene points out, moreover, it is the rare modern speaker who writes his autobiography in a single tome. Rather most autobiographical speakers today create an ongoing commentary about their lives on a blog or Facebook. Thus the fact that this billboard is not part of a larger autobiographical work is not decisive. Furthermore, the fact that Fultz did not identify his ex-girlfriend by name further suggests that his focus was more on his reaction to this event and less on shaming her.
If Fultz’s speech is deemed to be primarily autobiographical, then this case raises an important question about our free speech right to share our own life experiences. If Greg Fultz wishes to tell the story of his life by announcing to the world that “this is what happened to me,” it should be his right to do so.