If I publish an article that falsely claims that Gelf scribe David Goldenberg enjoys purchasing from vending machines underwear previously worn by Japanese schoolgirls (Snopes), Mr. Goldenberg can sue me for defamation. The gist of his cause of action is that (1) I communicated a harmful statement to a third party and (2) the statement is untrue. If my claims about Mr. Goldenberg are true, he cannot sue me for defamation. But can he sue me for something else?

Wikipedia Washingtonienne

Before you start publicizing your friends' most embarrassing secrets (psst…
Carl Bialik is a Mets fan), did you know that you can also be sued for broadcasting the truth? If Jessica Cutler had never heard of the tort "public disclosure of private facts," she certainly has now.

In May 2004, Cutler, a staffer for Senator Mike DeWine (R-Ohio), published online a daily diary of her sex life in Washington. In her blog, Washingtonienne, she published intimate details of several sexual relationships she was having with men in the Beltway. One man, a lawyer for DeWine (for privacy's sake, we'll call him Robert S…
wait that's too obvious—how about R. Steinbuch?), is suing Cutler for publishing several embarrassing facts about their relationship on her blog. As the Washington Post reported yesterday, "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 lawsuit is noteworthy because it positions itself perfectly in the middle of a battle between privacy and free speech. This problem is evident in the narrowness of any "public disclosure of private facts"
claim: There is no cause of action unless the disclosure would be highly offensive to a person of reasonable sensibilities and is of no legitimate public concern.

And there's the rub: At what point do intimate sexual details become "highly offensive" to a reasonable person? You're not a happy camper today if you're Steinbuch. The less humiliating the details of his relationship with Cutler, the less likely he is to succeed in his lawsuit. So in order for Steinbuch to win, Cutler's revelations about their relationship must be extremely embarrassing (they must be "highly offensive" to "reasonable" persons). Pick your poison: Someone publicizes your boring sex life and you can't do anything about it; or win a lucrative lawsuit, but have everyone know about your "highly offensive" sexcapades. You almost don't know what to prefer.

Because Gelf is unsure of the merit of Steinbuch's cause of action, we have chosen not to link to any archived versions of the Washingtonienne blog. Gelf is happy to tell you about all of its own sexual exploits, but will not publicize what may or may not be the "highly offensive private facts" of another's sex life.

Email this entry to:

Your email address:

Message (optional):