12/28/2006 10:15 am ET Updated May 25, 2011

Sex, Bloggers & Privacy: Let The Lawsuits Begin

It all started back in 2004 when Robert Steinbuch, former legal counsel for now-displaced Republican senator Mike DeWine, started an affair with a young woman in his office. The woman, of course, was intern-cum-celebrity blogger Jessica Cutler, who had been detailing their sexual encounters, including tidbits like Steinbuch's spanking habits and dislike of condoms, in her now-infamous (and defunct) blog, Washingtonienne. Wonkette made Cutler famous, she lost her job, and Steinbuch, who was never revealed by name in Cutler's writings, left D.C. in disgrace and eventually sued to the tune of $20 million. Now, as the Guardian (via the AP) reports, both sides are gearing up for a precedent-setting trial that could affect every blogger who's ever mentioned that clingy ex-boyfriend or flirtatious co-worker on a MySpace or Blogspot page.

Plenty is at stake in this case, and legal minds such as Georgetown Law professor Marc Rotenberg are following it with great interest, according to the AP. Thus far, federal law has been interpreted to protect bloggers like Cutler, albeit under different circumstances. The California Supreme Court joined other states by ruling in November that bloggers and participants in Internet bulletin board groups cannot be sued for posting defamatory statements made by other parties on their websites. The case, watched closely by First Amendment groups, involved Ilena Rosenthal, a women's health activist, who created an e-mail list and website to discuss issues related to breast implants. She then posted letters written by a reader that criticized San Francisco-area doctors Stephen Barrett and Terry Polevoy. The men sued for libel, Rosenthal argued that the federal Communications Decency Act (passed by Congress in 1966) protects Internet service providers and their users from lawsuits, and the court agreed, noting that ruling for the defendants could chill free speech online. Internet heavyweights like Google, eBay, Yahoo and AOL, all of whom filed amicus briefs in support of the defendant, breathed sighs of relief, as did Tasha Joseph, owner of Dontdatehimgirl, a website in which women post warnings about men they consider rotten dates. Joseph is currently being sued in Pennsylvania by Todd Hollis, a Pittsburgh defense lawyer, over postings on her site that accused him of having a venereal disease. If the Pennsylvania court follows California's decision as expected, she'll walk away without paying Hollis a cent.

Still, the right to privacy remains a key factor, and, as Rotenberg was quoted by the AP as saying, "Anybody who wants to reveal their own private life has a right to do that. It's a different question when you reveal someone else's private life." Cutler's case is unique in that libel is not an issue; necessarily (and somewhat astonishingly) the plaintiff admits the truth of every salacious detail she wrote about him. But the same First Amendment concerns raised by Rosenthal's case still apply, and a decision against Cutler could have a massive chilling effect for all online postings. The extent of Steinbuch's proveable damages could hurt Cutler; the scandal forced him to leave his job, flee D.C. and start over in Arkansas. Still, the federal court is no doubt aware that a decision for the plaintiff will open the floodgates for any jilted party who finds him/herself the subject of a blog or website. Perhaps the most heartening news for Cutler is presiding Judge Paul Friedman's statement to both sides: "I don't know why we're here in federal court to begin with...I don't know why this guy thought it was smart to file a lawsuit and lay out all of his private, intimate details." Though loss of your job, demolition of your reputation and the smell of $20 million in damages might make testifying about your spanking habits a little more appealing.