Posted by Bruce Johnson

The word “gossip” comes from a Middle English word meaning kinsman or family member. Thus, several hundred years ago, a “god sib” (the word “sib” is still preserved in our language as “sibling” ) was similar to a Godparent. The composition of the word itself, and its evolution, acknowledges how chatty we are among those we know.

What happens when gossip goes beyond the kinship group, or beyond a group of friends – and ends up on the World Wide Web?

The strict legal question, to be decided by a federal court in Washington, D.C., in the next week or so is: Can a blogger’s blow-by-blow description of consensual sex give rise to an invasion of privacy claim, given that her partner also shared in the office discussions about those activities?

And, if it is not dismissed, the case will present other factual issues of interest to us human beings, such as what do the terms “freaky shit”, “fucked every which way”, “talking dirty”, “crazy”, “nasty sex like animals”, and “submissive women” actually mean? Can use of these words – in describing a typical Capitol Hill fling – be deemed to result in liability for false light invasion of privacy or disclosure of private facts?

The legal issue is the subject of oral argument in the case of Steinbach v. Cutler, and a motion to dismiss argument that is scheduled to take place before United States District Court Judge Paul L. Friedman in Washington, DC, next Wednesday, April 5, 2006, at 2:00 p.m.

The lawsuit had its origins in a first date – which both participants evidently enjoyed.

On May 6, 2004, Jessica Cutler, who was a staffer for Ohio Senator Michael DeWine, met Robert Steinbuch, Senator DeWine’s counsel on the Senate Judiciary Committee, at a bar at Union Station, near the Capitol. They apparently hit it off. A few hours later, Cutler and Steinbuch went to her apartment and enjoyed sexual activities – though, as she immediately recounted on her personal blogsite, this initial date did not include intercourse. “Has a great ass,” she blogged. “He likes spanking. (Both giving and receiving.)”

The next day, Cutler disclosed to her office friends details of the sexual encounter with Steinbuch. That day and during the next several days, she also posted these details – identifying Steinbuch as “RS” and noting other information, such as the fact that he was Jewish, that he was a Senate staff lawyer, that he had a twin, and that he had a home in Bethesda – on her personal blog (Washingtonienne), which was accessed by several of Cutler’s friends. The Washingtonienne site, however, was theoretically accessible to all – there were no password protections – but Steinbuch was apparently unaware of it.

Steinbuch, however, was aware of the office discussions about their activities and did not object. Indeed, according to the court papers submitted by Cutler, he joked about the encounters with several co-workers and participated in these discussions.

During the next twelve days, Cutler and Steinbuch continued their sexual encounters, and Cutler continued to disclose the details of the trysts to her friends and to readers of her blog.

Then, on May 18, 2004, the Washington internet gossip site Wonkette picked up the contents of Cutler’s personal blog and the entire world quickly learned about Cutler’s affair with RS. Cutler immediately discontinued her blogging activities, and shut down the site. She and Steinbuch also discontinued their sexual activities. [Note: Wonkette blog entries pertaining to Cutler and her site can be found here; you’ll need to scroll to the end to see the initial posts.]

Soon, assisted by the blogosphere’s research efforts, Washingtonians guessed that RS was Steinbuch. Cutler’s blogsite had provided other choice tidbits, which gossip-mongerers have continued to nibble on, by offering details of her affairs with six other local men, including a Georgetown lawyer who paid her $400 for sex, a staffer in Sen. Lieberman’s office, and the Chief of Staff at a government agency who had been appointed by President Bush.

As result of her blogging activities, of course, Cutler has since become famous. She was the subject of a 2005 Playboy interview and a pictorial – and her photographs have been distributed by other bloggers. She also received extensive coverage by the Washington Post, with a lengthy magazine story which recounted the horror she felt when Cutler learned that Wonkette was publicizing her personal blog diary.

In the Post article, Cutler described that day with horror, as she recalled sitting at her desk, having just deleted her blog entries and confirmed their deletion, and still hopeful that “[m]aybe nobody on Capitol Hill had read or copied her blog before she’d deleted it”:

Just then, Jessica says, the office door swung open. Framed in the doorway was the man she’d chronicled on the blog as her latest and favorite paramour — a serious committee staffer more likely to be featured in some wonk newsletter than an online sex diary. He didn’t look happy. He asked her to step into the hallway, Jessica says. He was clutching a printout of her blog. “I have nothing to say to you about this,” Jessica recalls him saying before he walked away.
“Okay, bye,” Jessica said. She slunk back to her desk thinking, “Boy, am I getting off easy.”

A few minutes later, she noticed one of the senator’s senior aides standing a few feet away, glaring. This was the woman Jessica says set her up on her first date with the committee staffer. In her blog, Jessica breezily referred to her as a pimp. Now, the senior aide Jessica had called a pimp looked as if she wanted to rip Jessica’s head off. “You are the sorriest excuse for a human being,” Jessica remembers the woman shouting. “You are worthless.”

The Steinbuch v. Cutler lawsuit, however, is the subject of this legal blog, so we should turn our attention to that important, and legally pressing, case. Steinbuch’s May 2005 complaint asserted that these “cruel and malicious exposures” entitled him to substantial compensatory and punitive damages under two invasion of privacy liability theories (false light and disclosure of private facts) and on grounds of intentional infliction of emotional distress. He also asserted that “[n]o reasonable person would want the intimate physical, verbal, emotional, and psychological details of his or her sexual life . . . exposed . . . on the Internet for all the world to read. It is one thing to be manipulated and used by a lover, it is another thing to be cruelly exposed to the world.”

The case presents some interesting legal issues for bloggers and the underlying factual issue (where is the dividing line between what is public and what is private) suggests that the lawsuit may be exploring new areas of liability. Indeed, the viability of these claims was analyzed in June 2005 by Washington, DC, lawyer Julie Hilden, who notes the ironic fact that ” the very reason Steinbuch may have been identifiable, may have been that this information was no longer truly private ” and thus that “his proof of this element of the claim, may negate his ability to prove the てrivate facts ‘ element” of his tort claim. Furthermore, “when it comes to the てdentifies 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.”

In July 2005, Cutler filed a motion to dismiss the complaint. In her motion, she has argued (1) that Steinbuch ratified the disclosure of details about their sexual relationship in office discussions (and that her blog was simply an extension of that discussion); (2) that plaintiff had no reasonable expectation of privacy in a 12-day “sexual tryst”, by citing Justice O’Connor’s statement in FW/PBS, Inc. v. City of Dallas, in which she rejected a challenge to a city ordinance requiring certain motels to be licensed as sexually-oriented businesses (she said that “[a]ny てersonal bonds’ that are formed from the use of a motel room for fewer than 10 hours are not those that have てlayed a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs'”); (3) that disclosure on a personal blog, without more, is not publicity and is little more than “writing on a bathroom wall”; (4) that Steinbuch had waived any privacy expectations by joining in or allowing office gossip about the intimate details of their encounters; and (5) that Cutler had a First Amendment right – and that it was newsworthy for her – to share her personal viewpoints about the pressing public issue of “the interplay between sex and power in the Nation’s capital.” (One of the cases that she relies on – Bonome v. Kaysen — was a 2004 Massachusetts case handled by my New York partner Liz McNamara involving a book written by the author of Girl, Interrupted. The case was dismissed by the trial court because of the legitimate public interest in the private facts that were discussed by the author.) Finally, Cutler also cited Washington’s one-year statute of limitations for defamation and privacy lawsuits, arguing that plaintiff’s claims involving all but her last blog entry (which was posted less than a year before the lawsuit was filed) were time-barred.

Steinbuch disputes these arguments, noting in his opposition to her motion to dismiss that Cutler had “deliberately declined to password-protect her blog, making it publicly available to anybody on the Internet.” Indeed, according to Steinbuch, Cutler sought publicity for her blog discussions when she hyperlinked her personal blog to Wonkette’s, who hyperlinked back. As Steinbuch further observed, in her blog, Cutler gave “widespread publication” to very intimate facts about their affair, including “the number of times Plaintiff ejaculated, his difficulty in maintaining an erection while wearing a particular condom, spanking and hair pulling during sexual activity (conveniently leaving out Cutler’s request of both), . . . physical descriptions of Plaintiff’s naked body, the physical details of the sexual positions Plaintiff assumed during sexual activity,” and other highly embarrassing and confidential facts about their sexual activities.

After the official pornography of the Starr Report, which American taxpayers subsidized with many millions of dollars, Cutler’s intimate discussions of her own “inside the Beltway” activities may not come as a surprise. As Cutler noted in her reply brief requesting dismissal: “[t]he Blog reflected Cutler’s attempt to express to her friends how unsavory and power-driven Washington, D.C., can be and how she was navigating the environment.” But the case touches on significant privacy issues, and will be of special interest to bloggers. Next week’s oral argument will likely attract a lot of publicity, wonted and unwanted, for both litigants.

By the way, where is Jessica Cutler these days? This is America, so of course she has an HBO sitcom on its way and still has her own (new) blog