Outside Counsel

Dahlia Lithwick on the suit brought by Robert Steinbuch against Jessica Cutler for blogging about their affair. Steinbuch was counsel to Sen. Mike DeWine when he started sleeping with staff assistant Cutler in May 2004. She wrote about the fling detailing on her weblog, Washingtonienne and now he has brought suit alleging the novel tort of "public disclosure of private facts."

Lithwick: "To prevail at trial, Steinbuch must prove Cutler's disclosure was "public" and the facts "private." He must show that the publication was "highly offensive" with no "legitimate concern to the public." The specific legal questions will include whether it matters that Cutler's blog was intended to be private—in a later motion Cutler describes what she did as little more than "writing on a bathroom wall." She claims someone else allegedly passed her Web site along to Wonkette, who was recently joined to the suit. There is also the matter of whether Steinbuch's claim is waived by his earlier water-cooler admissions to his colleagues that yes, he was sleeping with the staff assistant.

"But layered over all this legal wrangling, a vital question remains: Is this lurid Internet dishing important free speech, or a cruel invasion of privacy? Is there something about the Internet, or this speaker, or this subject that raises the legal stakes? Most of us can probably agree that Cutler's revelations were both private and "offensive." But how on earth can we know when a revelation is "of no legitimate concern to the public"?"

I dunno the answer to Lithwick's question-- but I think it's a pretty squishy thing for courts to get involved in. I'm a First Amendment absolutist mostly, but that's not the same as saying I think the Big Gun should be brought into every battle. This speech was not defamitory, because it was true. It did not concern anything private, because Steinbuch waived whatever privacy expectation he might have had. I don't see that we really need to get into the question of whether the content was of "legitimate interest to the public" or not, and if I were the court I'd stay away from that question.

Hilariously, Steinbuch is making this a permanent part of the public record by bringing the action. Is he doing it to clean his reputation? Or is he doing it because Cutler has cashed in, and has assets that he thinks he can recover? I don't see this case surviving motion practice, but it would be fun to see the damages proof.