Are Accounts of Consensual Sex a Violation of Privacy Rights? The Lawsuit Against the Blogger "Washingtonienne"

By JULIE HILDEN
julhil@aol.com
----
Tuesday, Jun. 21, 2005

Jessica Cutler - better known as "Washingtonienne" -- achieved notoriety with a web log ("blog") about her sexual exploits, written while she was a staffer for U.S. Senator Michael DeWine of Ohio. When her identity became known, Cutler was fired - but also got what was reportedly a six-figure contract to write a novel, and an offer to pose for Playboy.

The novel, The Washingtonienne, is out now, and Cutler is doing readings. But her life isn't entirely carefree: Cutler still faces an invasion-of-privacy lawsuit, filed last month by Robert Steinbuch, a staff attorney for DeWine.

In his complaint, Steinbuch says that what Cutler wrote about him, which included specific and doubtless embarrassing details about their sex life, caused him "humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society." (For the numerous comments by Cutler upon which Steinbuch bases his claim, please see the complaint.)

The law recognizes several privacy torts. Steinbuch, however, invokes just one: Public dissemination of private facts. (He also brings a claim for intentional infliction of emotional distress, but such claims are notoriously hard to prove.)

Could Steinbuch win his case? In this column, I will consider how he may - and should - fare under the relevant law.

The Applicable Law, and Steinbuch's Interesting Choice of Which Court to File In

Steinbuch says in his complaint that he is a Maryland resident. Often, privacy torts are litigated under the law of the state of the plaintiff's residency, because that is where the alleged injury is felt.

But this is an unusual case: Steinbuch claims that he suffered injury primarily in Washington, D.C., where he works, not Maryland, where he lives.

Perhaps in part for this reason, Steinbuch opted to sue in the District of Columbia.

What law will the D.C. court apply? D.C. courts may still choose to apply Maryland law here, because that is the state of Steinbuch's residency. But they may also choose, instead, to apply the law of the District. Since the laws of the two jurisdictions on this issue are quite similar, I will offer a single, combined discussion that ought to be accurate regardless of which jurisdiction's law the D.C. federal court chooses to apply.

But first, let me add a note on the court where Steinbuch chose to file his suit.

Although Steinbuch might have sued in D.C. Superior Court, he filed his complaint in U.S. District Court in D.C. instead. This case alleges exclusively state law claims. Readers may thus wonder: Why is it in federal court?

Technically, the answer is that federal jurisdiction can be based on what the law calls "diversity" of citizenship: Cutler (a D.C. resident) and Steinbuch (a Maryland resident) are "diverse" in that they do not reside in the same state. Also, Steinbuch alleges - as is required for diversity jurisdiction - that he suffered over $75,000 worth of damages.

The real reason for Steinbuch's choosing federal court, however, is most likely the generally high quality of federal judges: Steinbuch can probably expect more careful consideration of his claim because he filed it in federal court. Of course, some Maryland and D.C. Superior Court judges are excellent, but as a general rule, federal judges are reputed to be more thoughtful than state judges - in part because they are often less overworked. (Also, the court is probably convenient for Steinbuch - who may end up acting as his own co-counsel, or local counsel, in conjunction with the Florida attorney who signed his complaint.)

The Elements of the Tort

Now that he's chosen his court, can Steinbuch prove his case? To answer that question, it's useful to look at the elements of the tort he claims - each of which he would need to prove to win his case.

When addressing claims like Steinbuch's, both Maryland and D.C. rely on the Restatement of Torts - a summary of the common law tort principles developed by judges over time - to define the tort of "public disclosure of private facts."

Also, both jurisdictions agree that media entities are not immune from such tort claims. So whether or not bloggers count as part of the media (an issue I wrote about in an earlier column), probably won't make much of a difference in the Steinbuch/Cutler case.

(Nor, therefore, will this case be likely to raise the sub-issue of whether all - or only some - bloggers should be treated as journalists, and thus be entitled to the journalist's privilege. That's good news for Cutler, and for the more hard-news bloggers who hope to seek protection. Cutler's blog resembled an open diary more than anything else. Its style and content would make it a very poor test case for resolving the question of whether bloggers are journalists; my sense is that a judge would only very reluctantly treat this particular blog with the respect accorded to a journalist's reportage. )

The elements of the tort of public disclosure of private facts are as follows: The disclosure must be public. The facts must be private. The plaintiff must be identified. The publication must be "highly offensive." And there must be an "absence of legitimate concern to the public" with respect to the publication.

(Notably, even if these elements are proven, some defenses and privileges - including one deriving from the First Amendment - may be invoked. But for space reasons, I will limit this column to a consideration of whether Steinbuch can prove his case in the first place.)

Public Disclosure: Disclosure to An Individual or a Small Group Doesn't Count

One of the tort's elements is clearly satisfied: Many would consider Cutler's disclosures about Steinbuch's sexual proclivities "highly offensive" (see his complaint for examples), and I think a judge would agree.

But what about the other elements? Let's go through them in turn.

First, let's look at the "public disclosure" element. This one might look like a no-brainer - according to Steinbuch, all of D.C. now knows about his sex life -- but it turns out it's not.

That's because, surprisingly, the initial disclosure - the one that caused much of the injury here - may not have been "public" under the law.

Steinbuch himself alleges in his complaint that Cutler was bandying the same facts around the office, that she had put in her blog. So the initial disclosure of the facts here may have been a disclosure to a small group of persons - and, under the law of this privacy tort, such a disclosure does not count as publication.

Put another way, water cooler gossip, though it can be damaging, is not a privacy tort. And it seems, from the complaint, that Cutler's revelations were initially, and widely, relayed and connected to Steinbuch through office gossip, not via the blog. It seems likely that the office gossip used Steinbuch's actual name, not the pseudonym R.S.

The legal rule that disclosure to a small group is not publication has, admittedly, let a lot of rogues off the hook. Under Maryland cases, sending evidence of adultery to an unwitting spouse is not public disclosure for this purpose. Nor is a boss's telling a whole department about the reasons why a worker was fired.

But even if this rule does let rogues prosper, it is the law, all the same - and for good reason: Allowing gossip to become fodder for lawsuits could crowd the courts with angry people looking for revenge on those who blabbed their secrets.

(Notably, the law of defamation and slander is different from privacy law on the "publication" issue - because there, lies, not true revelations, are at issue. Suppose that one introduces a false and damaging statement into office gossip, with the requisite state of mind -- usually meaning a subjective awareness that the statement is probably false. Depending on state law, that can be slander, even if the statement is made to a small group.

The bottom line: Telling damaging lies about your coworkers around the watercooler is typically more dangerous, from a legal standpoint, than revealing their embarrassing secrets there.)

Private Facts: They Aren't Private If They're Already Well-Known Gossip

Second, what about the "private facts" element?

Again, it's less of a no-brainer than one might think. Even if one believes sexual facts are always private - an issue I'll discuss later - it's possible that these sexual facts were no longer private at the time when blog readers (as opposed to officemates) connected them with Steinbuch, and saw past the "R.S." and "Robert" references. And remember, based on the analysis above, the office gossip that probably would have used Steinbuch's full name, was not itself a tort.

It seems likely this information would have spread quickly:

The world of low-level D.C. staffers is typically a very efficient gossip communication mechanism.

And indeed, Cutler's own blog - as quoted in Steinbuch's complaint - reflected as much: It noted, "The rumor has spread to other offices."

D.C. law and Maryland law both make clear that the act of revealing facts already known to the relevant public cannot be the basis for this kind of privacy suit. For instance, in Maryland, a newsletter sued by an employee for publishing his letter of reprimand, was let off the hook by the court because the letter had already been bandied about in his industry - showing up on bulletin boards and becoming the subject matter of office gossip.

Again, this legal rule doubtless lets rogues blab on without fear: A savvy speaker could even prepare to publish a truthful but possibly privacy-infringing publication by talking up a storm in the relevant community beforehand. The chatting wouldn't be publication, and thus wouldn't be tortious - but it would ensure that the facts chatted about were no longer private.

In this way, non-tortious behavior can undermine a later tort claim - by plan or by accident. Cutler, it seemed, hardly confined her gossip to her blog. For this reason, her very youthful indiscretion - this woman threw caution to the wind in every way - may save her in court.

(Once again, the law of defamation is quite different. A defamation suit can come on the heels of a slander suit, if the defendant decided to broadcast his false office gossip more widely; the two claims are entirely compatible. Or, put another way, repeating a libelous statement counts as republication, and is equally tortious--whereas, repetition of a true, public fact does not count as a privacy violation, even if that fact was once private.

In a defamation case, it's true that damages may end up being apportioned between the various remarks - depending on which statements caused which harms. But any and all of these statements can be the basis for suit.

So suppose you, a Hollywood insider, claim to your officemates - knowing it's false - that "Brad cheated on Jen." You're slandering Brad. Then, if a tabloid quotes you - also knowing it's false - they're defaming Brad, as well. You could both be sued - as co-defendants - and for you, both remarks would be at issue.)

Identifying the Plaintiff: The Question Here Is Not If, But When

The further requirement for a publication of private facts claim - that the publication "identify" the plaintiff -- is not a literal one: As with libel claims, a name is not a "magic word": Using details or initials may identify a person sufficiently clearly to fulfill the requirement.

The reason for this rule is plain: If one could use identifying details, but be safe as long as an actual name was omitted, evasion of the law would be simple. (Under the rule, for example, Katie Holmes could sue if she were referred to as "Tom Cruise's girlfriend" or "K." in the context of true revelations of intimate, private details of their life.).

Certainly, it seems clear that many Washingtonians by now have connected the blog's "R.S." and "Robert" with Steinbuch. (If they hadn't, he'd be very foolish to out himself with his lawsuit.)

But again, timing may be everything here. When Cutler talked about Steinbuch in her blog, she used initials - but when she talked about him around the office, again, she probably used his name. (After all, they were co-workers, so revealing his name would have increased the gossip-worthiness of Cutler's stories.)

Indeed, in his complaint, Steinbuch suggests that the very reason he would have been identifiable, in the blog, was that the blog's details jibed with details Cutler had already given - presumably, using his full name - to colleagues and co-workers.

Thus, the very reason Steinbuch may have been identifiable, may have been that this information was no longer truly private. So his proof of this element of the claim, may negate his ability to prove the "private facts" element.

Thus, when it comes to the "identifies the plaintiff" element, once again - but in a different way - the prior presence of prior office gossip may end up decisively crippling Steinbuch's invasion of privacy claim.

An "Absence of Legitimate Public Concern"? A Very Controversial Question

Finally, is it the case that there was "no legitimate public concern" with respect to the material about which Cutler blogged?

Case law in Maryland and D.C. does not offer much guidance, so this question is very much open to debate - and the answer will probably fall within the discretion of the assigned judge at the federal district court in which Steinbuch filed his case.

This question, I think, is likely to divide readers deeply. And that divide might be based, in part, on gender lines: Are women perhaps somewhat more likely to think the personal is political - and therefore of public interest?

Certainly, women (myself included) have written many memoirs on very personal topics. Men have, perhaps, been somewhat less personal - though Augusten Burroughs, J.T. Leroy, and Jonathan Ames are exceptions to the rule. So is Larry Kramer, who has rightly insisted on making the personal, and the sexual, political when it comes to AIDS prevention, medication, and advocacy.

Still, gender may matter a bit. Consider, for example, the two most famous Prozac books: Peter Kramer wrote Listening to Prozac from his point of view as a psychologist. But Elizabeth Wurtzel wrote Prozac Nation from her point of view as a patient, offering personal details about her own depression. (Notably, William Styron also wrote a depression memoir, Darkness Visible, but he doesn't go into the personal, sexual detail that Wurtzel offers - and offered again in her later addiction memoir More, Now, Again.)

Cutler, Lewinsky, and the Limited Power of Young Women in D.C.

The divide among readers on the "public concern" element might also be based on residency: Are D.C. residents now more likely to see sex scandals as a part of political life - and thus, perhaps, a subject of genuine public interest - than, say, Midwesterners?

Of course, the Lewinsky scandal fused the personal and political - perhaps permanently. And certainly, that scandal at least contributed to the rapid shift of the public/private line in our society.

In particular, the Starr Report's notorious footnotes -- including copious, seemingly irrelevant sexual detail as to who allegedly did what to whom, when -- reflected the most expansive possible view of when the personal is political. These footnotes, in my opinion, were gratuitously humiliating to Lewinsky - who displayed what seems in retrospect to have been an eerily Cutler-like mix of nerve, blitheness, bravery, indiscretion, gross immaturity, and the boldness of youth.

After the Starr report was published, and some time had passed, Lewinsky published her own book. And surely, no one could have blamed Lewinsky for getting personal there, or later: The Independent Counsel had already made her body almost as public as if he had displayed her nude in the town square!

Oddly, Cutler's situation is a reversal of Lewinsky's: Cutler wrote before she was written about, and chose to chronicle her own sex acts - and even pose nude - rather than having them chronicled by someone else.

Also, unlike Lewinsky, Cutler wasn't pressed to publish by legal bills, or by the need to set the record straight. Instead, she has had money on her mind recently, and isn't apologetic about it.

Granted, Cutler's blog may have initially been a convenient way for Cutler to diary her thoughts and keep her friends up to date (much like Monica Lewinsky's emails to her friends! What if Lewinsky had had a blog?). But it turned into a money-making mechanism, partly through her own entrepreneurship

In the public mind, however, it seems that it's okay for the victimized, terrorized Lewinsky to feel compelled to write after others have written about her - but not for the more powerful, in-your-face Cutler to do so voluntarily, and make the first move.

Starr punished Lewinsky for her audacious sexuality; now Steinbuch is trying to do the same, in a way, to Cutler.

In the end, D.C. is still very much a man's world - despite the high-profile presence of a few prominent women. The sight of young beauties doing thankless errands for decrepit codgers is still common, and some lechery often attends the conjunction of heedless youth and jaded power.

So Cutler - like Lewinsky before her - may simply have grabbed for the power that seemed most readily available to her: sexual power. As much as this kind of power is touted, it's not a very powerful kind of power, especially in the long run. But young women may see it differently - and if this kind of power is chosen, even unwisely, by those to whom political power is largely inaccessible, then doesn't it, in a way, have a political dimension, too?

Cutler's blog, interestingly, isn't just "kiss and tell." Along the way, it reveals the double standard that still applies to, and confuses, so many women. Even as Cutler mulled whether she and Steinbuch might marry (he's Jewish; she isn't), she also worried that their "nasty sex" wasn't appropriate for a married couple. And meanwhile, she had been dating five other men, and taking money from at least one of them!

If the questions of what it means to be a wife, and what it means to be a whore, are political as well as personal questions - and I think they are -- then this blog definitely (if often inadvertently) had something political to say. That, too, may provide a defense Cutler can raise in Steinbuch's suit.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. (She was not, however, involved in the firm's representation of President Clinton with respect to impeachment proceedings or the Independent Counsel's Office.) Hilden's memoir, The Bad Daughter, was published in 1998, and her novel, 3, was published recently. Her website is www.juliehilden.com.