There has always been a constant struggle drawing line between free speech protected by the First Amendment and unprotected defamatory speech.

Recently Greg Fultz, 35, decided to traverse this fine line when he put an anti-abortion billboard on a major New Mexico thoroughfare. The billboard depicts Fultz holding an outline of an infant. The photo is accompanied by text that reads, “This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided Not To KILL Our Child!

Friends of the “would be mother” contend that she had a miscarriage and did not abort the child. Consequently, she has brought an action for harassment and violation of her privacy rights.

Is the Use of the Billboard Defamatory?

Defamation is an actionable tort that generally prohibits a party from making false publications that are injurious to the reputation of another. Whether the billboard used by Fultz is defamatory or not hinges on whether the baby was aborted or lost its life as a result of a miscarriage. Therefore, the ability to prove the falsity of the billboard’s message is essential to the woman’s chance at a successful defamation claim.

Fultz’s attorney relies on the recent Westboro Baptist Church case, where the Supreme Court allowed church members to protest outside of gay military funerals as a valid exercise of free speech. This case is unlikely to be beneficial to Fultz because the church members were directing their beliefs at homosexual members of the military in general. Additionally, there is no factual inquiry that could suggest the falsity of their anti-homosexual public messages. By contrast, Fultz’s claim if proven false was a malicious attack poignantly aimed at his ex-girlfriend. Consequently, a factual inquiry will be necessary to determine whether the woman has a meritorious defamation claim.

What do you think? Is the billboard defamatory? Is the billboard protected by the First Amendment?