: views from the Hill

Monday, July 31, 2006

Beware the bloggerwock, my son.

Private I's?: Should the law protect us from kiss-and-tell bloggers?
By Dahlia Lithwick
[SLATE] Posted Saturday, July 29, 2006, at 1:24 AM ET


And that's where Robert Steinbuch and Jessica Cutler come in.

Steinbuch was counsel to Sen. Mike DeWine when he started sleeping with staff assistant Cutler in May 2004. What he didn't know was that the young woman was "blogging"—detailing on her Web log, Washingtonienne—every detail of their encounters. She regaled her friends with tales of his intimate sexual behaviors (as well as those of the five other men with whom she was sleeping) in a semiprivate Web diary that exposes Capitol Hill as a sad cross between seventh grade and Melrose Place.

Cutler identified Steinbuch only as RS. But when her blog was picked up by Wonkette—an Internet gossip behemoth read by everyone who was anyone inside the Beltway—Cutler joyfully nabbed her 15 minutes' worth of limelight, including a $300,000 publishing deal, an HBO contract, and a feature in Playboy. Aided by the Internet, readers quickly deduced the identity of RS. And Steinbuch, according to a complaint filed in a 2005 civil suit against Cutler, was subjected to "humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society."


A Man Scorned: His private life was made shockingly public. So why does he want to go through it all again?

By T.R. Goldman
Legal Times
May 22, 2006

I don't know why we're in federal court to begin with. I don't know why this guy thought it was smart to file a lawsuit and lay out all of his private intimate details in an appendix to the complaint.
U.S. District Judge Paul Friedman — April 5, 2006

It's your worst dating nightmare. You meet someone, the attraction is immediate, the sex is scorching, and — hold on — you think you might be falling in love.


Privacy cases are notoriously fact specific, and in this case there are several elements to the privacy tort of "publicity given to private life" that Steinbuch must prove.

First he must show that Cutler's actions provided publicity to her blog. Cutler, who declined to comment for this story, has responded that she gave the URL of her blog to just three friends. She flatly denies giving the Web address to Cox.

"The key is to distinguish between the gossip you whisper to friends and something that's more indelible and more broad," says Daniel Solove, a George Washington University law professor. "When you put something on the Internet, it often changes the whole dynamic; it oftentimes won't go away, and it won't fade with memory."

"I haven't seen much about the publicity element for stuff on the Internet. That's not been fleshed out by the courts," Solove adds.

Steinbuch must also convince the court that his acknowledgment of his affair with Cutler to others in DeWine's office — which happened before the story broke on Wonkette — was not the sort of waiver that would nullify an invasion of privacy claim.

In addition, he must show that the facts in Cutler's blog are indeed private, despite joking about some of them in the office.

Steinbuch further must convince the court that Cutler's blog is not newsworthy, something Friedman has already explicitly agreed with.

And he must show that the contents of Cutler's blog are highly offensive to reasonable people.

Steinbuch is also suing under the so-called false-light invasion of privacy tort, which holds a person liable for publicly exposing false and humiliating information about someone else.

Friedman has already ruled that each of these torts has a one-year statute of limitation, which raises a particularly nettlesome question for both sides: At what point in a blog's life does the statute of limitations begin to run?

Steinbuch filed his lawsuit on May 16, 2005, and, according to Cutler's lawyer, Umana, that means actions relating to almost all of her blog, which began more than a year before, on May 4, 2004, are time-barred and off-limits.

"Only the May 18 posting in the blog is within the one year, and all that says is that they had sex in a missionary position," says Umana, a D.C. solo practitioner. "The fact that they were having an affair already was public knowledge; the plaintiff was joking about it."

Rosen, naturally, disagrees. "Every time you make an entry in a blog, you open the whole document," he says. "Each posting is a new document," he adds, that incorporates all of the previous postings on the blog. "We're going to have substantial expert testimony on that," he says.


So what's the scoop here? What gives above and beyond prurient interest?

I'd like to know what I can and can't write about on my blog. I've always been Ms Sweetness 'n' Discretion, but what if I weren't? If I'm writing the truth of my life, does someone have the right to tell me I can't?

Steinbuch is suing over invasion of privacy, despite the fact their fling wasn't a secret in the office. He's added "false-light invasion of privacy tort, which holds a person liable for publicly exposing false and humiliating information about someone else."

He says the stuff Cutler wrote about him was false.

Some of it, anyway.

Cutler claims she didn't mean the blog to be public, that she'd only given the URL to three friends and she'd made sure it wasn't a "public" blog on Blogger. She doesn't know who gave the URL to Wonkette.

Steinbuch's willing to drag all the blog bits that he claims were so damaging through public courts and rile up the bottom feeders and Web wonks again just to defend his reputation.


Depositions 'r' us.

The Steinbuch-Cutler mini tempest has turned into a perhaps career-busting hoohah. How did less than two weeks' (05May2004 - 18May2004) worth of blog posts warrant this?

Interesting times, and the click-clicks in the articles head off to interesting places. ...

[n.b. Cutler yanked the blog off the Web as soon as the fit hit the shan. Some kind soul archived the content of the original Washingtonienne so peepers could see what the rustle in the courts is about. ]

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