Steinbuch v. Cutler [1]

For two weeks in May 2004, Jessica Cutler, a blogger and aide to Ohio Senator Michael DeWine, posted details of her sex life on her blog, The Washingtonienne [2] (now defunct), including her relationship with Robert Steinbuch (using his initials, "RS"), Senator DeWine's counsel on the Senate Judiciary Committee.

Cutler's blog posts contained many intimate details about her relationship with RS, including mentioning that their initial date did not include intercourse, but that he "[h]as a great ass" and "likes spanking. (Both giving and receiving.)"  During the next twelve days, Cutler continued to disclose intimate details about their sexual encounters both to her friends and to readers of her blog.

On May 18, 2004, Anna Marie Cox posted a link from her popular Washington gossip blog, Wonkette [3], to Cutler's blog, which at the time had only a small number of readers. After that, Cutler's blog received widespread attention in the media and blogosphere.  After Cutler became aware of this, she discontinued her blogging activities and shut down the site.

Although Cutler didn't name "RS" on her blog, she posted personal information about him, such as the fact that he was Jewish, was a Senate staff lawyer, had a twin, and owned a home in Bethesda, Maryland.  This information was sufficient for others in the blogosphere to guess that RS was Steinbuch.  In fact, Cutler had blogged about her affairs with six other men as well, including a Georgetown lawyer who paid her $400 for sex, a staffer in Senator Lieberman's office, and the Chief of Staff at a government agency who had been appointed by President Bush.   All of which created a frenzy to identify the men she had blogged about.

In May 2005, Steinbuch sued [4] Cutler in federal court for publication of private facts, false light invasion of privacy, and intentional infliction of emotional distress.  In his complaint, he wrote 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." Steinbuch also contended that some of the information Cutler published was untrue and that her blog presented him in a falase and defamatory light.

In July 2005, Cutler filed a motion to dismiss [5], arguing that (1) 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) Steinbuch had no reasonable expectation of privacy in a 12-day "sexual tryst"; (3) disclosure on a personal blog, without more, is not publicity and is little more than "writing on a bathroom wall"; (4) Steinbuch had waived any privacy expectations by joining in or allowing office gossip about the intimate details of their encounters; and (5) 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."

In his opposition to her motion [6], Steinbuch rejected Cutler's legal arguments and asserted that she had sought "widespread publication" of the intimate facts of their relationship and "deliberately declined to password-protect her blog, making it publicly available to anybody on the Internet."  He also alleged that Cutler sought publicity for her blog when she hyperlinked her personal blog to Wonkette.

On April 5, 2006, the Court denied Cutler's motion to dismiss without a written opinion.

In October 2006, Steinbuch added Anna Marie Cox as a defendant in his First Amended Complaint [7].  Cox moved to dismiss [8] on January 26, 2007, arguing, inter alia, that she was immune under section 230 of the Communications Decency Act [9].  The court dismissed [10] the claims against Cox in May 2007.

Update:

5/30/06 - Steinbuch filed a complaint in the Eastern District of Arkansas (4:06-cv-00620-WRW) against Cutler, Hyperion Books, Disney Publishing Worldwide, HBO, and Time Warner.

6/1/07 - D.C. court stayed the case following Cutler's filing of  Chapter 7 bankruptcy in the United States Bankruptcy Court in the Northern District of New York.