What do we mean when we talk about a tension in the law between speech and privacy?
Privacy is a fairly squishy legal concept—springing, as it does, from somewhere deep within the greatest hits of the First, Third, Fourth, Fifth, and Ninth Amendments. To which former Supreme Court Justice William O. Douglas, back in a landmark 1965 case, helpfully contributed a backbeat of "penumbras" and "emanations" from the Constitution. When we talk about our "right to privacy"—whether it be freedom from government wiretapping or freedom to control our bodies—we sometimes forget that this right exists largely in the quiet spaces between other, more concrete rights and freedoms.
Courts attempting to patrol these boundaries make some wonky judgments. The police can search your trash cans, but they cannot use a thermal imaging device to see what's in your home. I may publish parodies of Jerry Falwell but not of my next-door neighbor. Decisions about my body are wholly private, until they are not.
One of the first articulations of a legally protected "right to be let alone" came in an influential law-review article written by Samuel Warren and Louis Brandeis in 1890. They were anxious that "[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.' " That quaint 19th-century concern about photographers and tabloids presaged today's uneasy fear that the most intimate details of our personal lives—our trips, gaffes, and lingering kisses—are just a mouse click away from entertaining the planet.
And that's where Robert Steinbuch and Jessica Cutler come in.
Steinbuch was counsel to Sen. Mike DeWine when he started sleeping with staff assistant Cutler in May 2004. What he didn't know was that the young woman was "blogging"—detailing on her Web log, Washingtonienne—every detail of their encounters. She regaled her friends with tales of his intimate sexual behaviors (as well as those of the five other men with whom she was sleeping) in a semiprivate Web diary that exposes Capitol Hill as a sad cross between seventh grade and Melrose Place.
Cutler identified Steinbuch only as RS. But when her blog was picked up by Wonkette—an Internet gossip behemoth read by everyone who was anyone inside the Beltway—Cutler joyfully nabbed her 15 minutes' worth of limelight, including a $300,000 publishing deal, an HBO contract, and a feature in Playboy. Aided by the Internet, readers quickly deduced the identity of RS. And Steinbuch, according to a complaint filed in a 2005 civil suit against Cutler, was subjected to "humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society."
In the short term, Steinbuch's suit has only added buttercream frosting to the cake of humiliation Cutler baked him. It's hard to fathom how his privacy interests are being protected by a pleading that recycles every salacious detail from her blog. But he is clearly angry and embarrassed and in search of some justice, and he has thus sued her for the tort of "public disclosure of private facts."
To prevail at trial, Steinbuch must prove Cutler's disclosure was "public" and the facts "private." He must show that the publication was "highly offensive" with no "legitimate concern to the public." The specific legal questions will include whether it matters that Cutler's blog was intended to be private—in a later motion Cutler describes what she did as little more than "writing on a bathroom wall." She claims someone else allegedly passed her Web site along to Wonkette, who was recently joined to the suit. There is also the matter of whether Steinbuch's claim is waived by his earlier water-cooler admissions to his colleagues that yes, he was sleeping with the staff assistant.
But layered over all this legal wrangling, a vital question remains: Is this lurid Internet dishing important free speech, or a cruel invasion of privacy? Is there something about the Internet, or this speaker, or this subject that raises the legal stakes? Most of us can probably agree that Cutler's revelations were both private and "offensive." But how on earth can we know when a revelation is "of no legitimate concern to the public"?
I know what you're thinking: Sex with an intern is never of any legitimate concern to the public. But Wonkette's traffic (not to mention the Starr Report) certainly suggest otherwise. If free speech is best analogized to a "marketplace of ideas," isn't proof that Washington powerbrokers still think of young female interns as the dessert cart an important idea? My Findlaw colleague Julie Hilden urges quite persuasively that sexual imbalances between powerless female interns and powerful male lawyers in Washington, D.C., are a matter of serious political concern.
Arguing that judges should not be in the business of drawing lines between matters of "public" and "private" concern in the first place, First Amendment wizard Eugene Volokh opposes most privacy information regulation on free-speech grounds. Judge Richard Posner similarly says the law shouldn't protect against even the dissemination of sordid information, since we need it to form accurate judgments about others.
Law professor Daniel Solove disagrees: He writes that without privacy, we cannot truly develop political or intellectual selves. We can't be free unless we can protect some tiny piece of ourselves from the judgments of others.
Changes in technology and the explosion of the mass media make the resolution of this question about the contours of a right to privacy even more urgent. Because if Brandeis was horrified by the paparazzi at a society wedding, what would he make of men who can snap photographs up unsuspecting women's skirts and download them on the Internet for all to see?
Maybe the core privacy principles are truly unchanged since Brandeis' day. Perhaps the marketplace of ideas still works best when its shelves are stocked with plentiful, fresh, and unfiltered information. Perhaps the costs of protecting our privacy—intrusive courts, limited free speech—are simply too high to warrant greater regulation. It would almost certainly make for a better—if less interesting—world if we all simply behaved as though our most intimate act or comment could be disseminated worldwide by our enemies at any moment.
But it seems to me that the world has suddenly become too small to allow all our Jessica Cutlers to loom so large. If privacy means anything, it must mean that our lives are more than the sum of our single greatest mistake.
A version of this piece appears in the Washington Post Outlook section.