On Monday, a California appeals court offered up a lengthy discussion of boxing champion Floyd Mayweather Jr.'s social media posts about how he broke up with his ex-girlfriend, Shantel Jackson, because she had an abortion. The ruling, which favored the boxer but not completely, dealt with a particularly hot area of privacy law: whether the First Amendment protects the publication of truthful information.
The relationship between Mayweather and Jackson appears to have been a highly stormy one, to say the least. The appellate opinion (read here) goes into the nitty gritty, but the most relevant summation of the factual allegations begins when the boxer is told of Jackson's terminated pregnancy in January 2014. A few months later, Jackson attended a basketball game with the rapper Nelly, and Mayweather threatened to post nude images of her if she didn't remove her social media posts about Nelly. She rejected the demand, and he posted on Facebook and Instagram, "the real reason me and Shantel Christine Jackson @MissJackson broke up was because she got an abortion, and I'm totally against killing babies. She killed our twin babies. #ShantelJackson #Floyd Mayweather #TheMoneyTeam #TMT."
Mayweather also posted a copy of the sonogram of the twin fetuses, and after TMZ republished, he went on the radio to discuss this and also made some comments about her cosmetic surgery history.
In the opinion, California appellate justice Dennis Perluss first examines for purposes of California's anti-SLAPP statute whether Jackson's claims arise from protected activity on an issue of public interest. This means ample talk about how everyone is obsessed with celebrities. In fact, Perluss writes that it's not necessary to figure out whether statements about "killing babies" contributes to the public debate on women's reproductive rights because Jackson and Mayweather "are both high profile individuals who were subject to extensive media scrutiny. As such, Mayweather's postings and comments concerning his relationship with Jackson, as well as Jackson's pregnancy, its termination and her cosmetic surgery, were 'celebrity gossip' properly considered, under established case law, as statements in connection with an issue of public interest."
So the appeals court next probes Jackson's probability of prevailing on her various claims.
Let's start with where Jackson succeeds - and it's a notable zone for anybody who followed Hulk Hogan's lawsuit against Gawker.
Jackson claimed a public disclosure of private facts, which leads Perluss into analyzing the exception for newsworthiness, weighing the public's right to know versus a a morbid and sensational prying into private lives for its own sake.
"Jackson's pregnancy, the subsequent termination of that pregnancy - whether by abortion (which she has neither admitted nor denied) or otherwise - and her use of cosmetic surgery to enhance her appearance would, under many circumstances, be considered intensely private information; and its unwanted disclosure might well be offensive to a reasonable person," writes the appellate justice. "Nonetheless, at a time when entertainment news and celebrity gossip often seem to matter more than serious policy discussions, given Jackson's high profile and voluntary disclosure on social media of many aspects of her personal life, the publication of those otherwise intimate facts must necessarily be considered newsworthy under the broad definition of that term developed and applied by the Supreme Court and courts of appeal."
While that would seem to be a victory for Mayweather, Perluss continues by then concluding that the posting of the sonogram "served no legitimate public purpose, even when one includes entertainment news within the zone of protection" and that it was "outside the protection afforded a newsworthy report."
Perluss compares the images of the fetus to other salacious events that kicked up a legal fuss including a sex tape between Pamela Anderson and Bret Michaels. In a footnote, the justice waves off Mayweather's suggestion that the First Amendment protects publication of lawfully acquired, truthful information, noting "that the issue of newsworthiness had not been given extensive consideration by the United States Supreme Court," especially in privacy cases that go beyond public records.
So Mayweather fails to fully dispense with this claim, but otherwise, he gets the upper hand by getting the appellate court to reverse the trial judge with respect to claims of defamation andlight.
The appellate court does think the reasons why Mayweather ended the relationship is something that's capable of being proven true or .
"But more is required," continues the opinion. "Given that Jackson has not contested the truth of Mayweather's declaration that she had an abortion, the statement that Mayweather ended his relationship with Jackson for that reason does not appear to be defamatory. On its face, the allegedlypart of the posts (the cause of the breakup) did not expose Jackson to contempt, ridicule or other reputational injury. Indeed, the evidence Jackson presented of negative public reaction and the emotional distress she suffered as a result of Mayweather's May 1, 2014 posts focused on the abortion of the twin fetuses, not Mayweather's role in, or reasons for, ending the couple's relationship."
As for Mayweather's discussion of his ex's cosmetic surgery, Perluss walks through "minor inaccuracies" ("It is certainly conceivable that surgical enhancement of the face is different for the reputation of an actress or model from the augmentation or sculpting of other parts of her body. But...") while crediting the boxer with substantial truth.
Thus, the claims dealing with Jackson's reputation falter.