All posts tagged Washingtonienne

The Washingtonienne Case and the Still-Very-Much-Alive Public Disclosure Tort

Daniel Solove
Founder of TeachPrivacy

Washingtonienne Case

Earlier this summer, I blogged about the Washingtonienne case. Recently law professor Andrew McClurg wrote a piece for the Washington Post about the case. He writes:

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). It recounted, entertainingly and in considerable — sometimes embarrassing — detail, her ongoing relationships with six men, including [the] plaintiff. . . .

Although McClurg notes that the plaintiff “suffered a genuine wrong,” he also states that the law “appears to be against him” because he “does not allege that any of the statements about him are untrue.” McClurg notes that the plaintiff is suing under the public disclosure of private facts tort, which “provides a remedy when one publicizes private, embarrassing, non-newsworthy facts about a person in a manner that reasonable people would find highly offensive.” McClurg notes that “while Cutler’s actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.” McClurg continues:

In 1989 the court tossed out a lawsuit against a newspaper for publishing a rape victim’s name in 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.

Not so. Time after time the Supreme Court has explicitly carved out space for the public disclosure tort to exist. In the series of cases involving the First Amendment and privacy restrictions on true speech, the Court has always confined the First Amendment to speech about matters “of public significance.” The Court did this in Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) as well as its most recent case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), where the Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 534.

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Blogging Can Get You Sued: Privacy Tort Suit Against Washingtonienne Blog

Daniel Solove
Founder of TeachPrivacy

Washingtonienne - Jessica Cutler Washington Post Magazine Cover

Back in the summer of 2004, a clerk on Capitol Hill blogged about her sexual exploits on a blog called Washingtonienne.  A very interesting article in the Washington Post Magazine describes what happened:

The instant message blinked on the computer at Jessica Cutler’s desk in the Russell Senate Office Building. “Oh my God, you’re famous.” Before she could form the thought — “famous, cool” — or puzzle how she, a lowly mail clerk, had escaped obscurity, a second instant message popped up on her screen. Startled, Jessica recalls, she began to curse.

“Your blog is on Wonkette,” the message said.

Jessica’s blog (short for “Web log”) was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator’s staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked.

Wonkette is a popular online gossip column that was read by lots of Jessica’s friends and Capitol Hill co-workers, including some of the men in her blog.

The messages warning Jessica that her private little joke had just gone very public came from a girlfriend over on the House side. . . .

Typing and clicking her mouse at a desperate pace, Jessica logged on to blogger.com, the electronic bulletin board where she’d posted her sexploits under the pseudonym Washingtonienne, and deleted her blog, hoping she’d blown her diary into oblivion.

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