Slate columnist Dahlia Lithwick has published a piece dusting off the lawsuit against Washingtonienne blogger Jessica Cutler by one her sexual partners who featured prominently (covered by an ineffective pseudonym) in the blog. You may remember that Cutler was a junior aide to Senator Mike DeWine whose semi-private blog included salacious gossip about her active sex life, including the affair with the plaintiff, then a committee counsel to Senator DeWine. The blog was publicized by the Denton Media blog Wonkette, allegedly without Cutler’s permission, and after much steamy Beltway gossip Cutler ended up with a book deal and a Playboy pictorial (I am not linking to that! But Slate does…).
It’s not up to Lithwick’s usual standard — it might have been chopped up in the editing process. She sets up law professors (and bloggers) Eugene Volokh and Daniel Solove (of Volokh Conspiracy and Concurring Opinions respectively) in their familiar roles opposing and supporting greater privacy protection for subjects of public reports. They made some of the same points in greater detail on a panel at the Berkman Center’s Bloggership conference last spring.
But Lithwick ends up with a sort of unresolved on-the-one-hand-but-on-the-other discussion, particularly at the end:
It would almost certainly make for a better — though less interesting — world if we all behaved as though our most intimate acts could be disseminated worldwide at any moment.
But it seems to me that the world has suddenly become too small to allow the Jessica Cutlers in all our lives to loom so large. If privacy means anything, it must mean that we are more than the sum of our greatest mistakes.
There are a lot of misfires in the article. The first is captured in the quote above. Would it really be an “almost certainly” better world if all of us acted as if we were always in full public view? Solove certainly disagrees. His argument rests on the obvious-to-me proposition that we all need breathing room in which to say and do foolish things, to experiment, and to think out loud, without being accountable to everyone in the world throughout all time who might be curious about us. (This is why typical blogging is a singularly poor space in which to do those things, as Cutler no doubt learned and as many current college students will discover shortly).
The article also breezes quickly past some of the features of existing privacy law that help avoid some of the thorniest issues, such as:
- The information has to be truly private: the plaintiff’s own revelations of his affair with Cutler could destroy his claim;
- Cutler apparently took some (woefully ineffective) steps to conceal private facts, like the pseudonym and her claim that she did not publicize the blog (though she also did not password-protect it), which may defeat any cause of action for privacy invasion;
- There is a good argument that a Judiciary Committee counsel having a sexual affair with his boss’s very junior staff assistant might be a matter of public interest such that the privacy tort, as currently constituted, does not apply.
Nevertheless, the story does circle around a very difficult conflict at the core of this dispute: how can we balance a free press with a reasonable degree of personal privacy? The balance in this country has tilted extremely heavily toward free rein for the press in the past. If you think bloggers are precisely like journalists, you may see no trouble extending that rule into the future.
Like Lithwick, I tend toward the belief that “the world has suddenly become too small” for that rule to persist completely unchanged. More of our lives become reportable all the time. Other people have put pictures of me on Flickr that I don’t remember being taken; my students will probably rate me at online sites built for the purpose; and of course Google indexes it all. In that situation, there is a qualitative difference in the kind of personal information that becomes accessible and retreivable to the entire world.
What do we do about it? How do we change the rule? Like Lithwick, I don’t really know. I see points on the one hand and on the other. But I expect to spend a lot of time thinking about it…