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Fortunately, most indiscreet paramours limit their blabbing to a few confidants. Not Jessica Cutler.
Text | digital media law project
In Mayshe spilled out the graphic details of her sexual exploits on Steibbuch Hill on a blog accessible to hundreds of millions of Internet users. Now a federal lawsuit by one of her past lovers has set up a potentially high-stakes battle between privacy and speech rights and could give new meaning to the idea of safe sex in a wired world.
Cutler's blog, written under the pseudonym Washingtonienne, was a daily diary of her sex life while working as a staffer for Sen. Mike DeWine, R-Ohio. Although Cutler never used his full name, and usually referred to the plaintiff by his initials, Steinbuch alleges the blog revealed sufficient information, including his first name, physical description and where he worked, to identify him.
The Internet gossip site Wonkette published excerpts from Cutler's blog, touching off a media "feeding frenzy" in which Steinbuch was repeatedly identified by his full name. Cutler capitalized on the publicity. Steinbuch's argument is compelling. By any normative standard, he suffered a genuine wrong.
As he asserts in his complaint, "It is one thing to be manipulated and used by a lover, it is another thing to be cruelly exposed to the world. This is because Steinbuch does not allege that any of the statements about him are untrue.
False statements that damage one's reputation can be actionable as defamation. Steinbuch's case hinges on a century-old privacy tort claim known as "public disclosure of private facts. But while Cutler's actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.
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The Supreme Court has never upheld punishment, based on a privacy theory, for the publication of true information. In the court tossed out a lawsuit against a newspaper for publishing a rape victim's name hext violation of Florida law.
While it stopped short of ruling that a state may never punish true speech, the test it adopted for when that can be done without violating the First Amendment is so stringent Justice Byron White lamented in dissent that the court had "obliterate d " the public disclosure tort. One might think the non-newsworthiness of Steinbuch's sex life would save his privacy claim from a free-speech defense.
It could, but newsworthiness has proved to be a broad and elusive legal test in privacy lawsuits.
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The rape victim's name in the Florida case was vree to be sufficiently related to the public's interest in crime to doom her claim. Steinbuch's case spotlights the inadequacy of privacy law, developed back when gossip mostly traveled across backyard fences, for responding to the challenges of the Internet age. All it takes is a computer and Internet access.
And blogs are just the tip of the iceberg. In May an Oregon woman sued Yahoo after her ex-boyfriend posted nude pictures of her on the site and Yahoo failed to remove them. Expect more litigation.
While we wait to see if old law can adapt to steinbufh realities, don't forget the C-word when making safe-sex inquiries. No, not condoms or contraceptives. Ask potential partners if they own a computer. Special to the Washington Post.