Is Anything Private Anymore?

Tales of intimacy: Former Hill staffer Jessica Cutler chronicled her exploits online. (By Ron Sachs -- Cnp Via New York Post)

What do we mean when we talk about a tension in the law between speech and privacy?

Privacy is a squishy legal concept -- springing as it does from somewhere deep within the greatest hits of the First, Third, Fourth, Fifth and Ninth Amendments. And to which former Supreme Court justice William O. Douglas, in a landmark 1965 case, helpfully contributed a backbeat of "penumbras" and "emanations" from the Constitution. When we squawk about our right to privacy -- whether it be freedom from government eavesdropping or freedom to control our bodies -- we sometimes forget that this right exists largely in the quiet spaces between other rights and freedoms.

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 worried 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 and gaffes and kisses -- are just a mouse click away from regaling the planet.

Enter Robert Steinbuch and Jessica Cutler.

Steinbuch was counsel to Sen. Mike DeWine (R-Ohio) when he started sleeping with staff assistant Cutler in May 2004. What he didn't know was that the young woman was blogging -- writing on her Web log, Washingtonienne -- about every detail of their encounters. She regaled her friends with tales of his intimate sexual behavior (as well as those of the five other men with whom she was sleeping) in a semi-private online diary that exposes Capitol Hill as a cross between the 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 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 claimed to be subjected to "humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society," as his 2005 lawsuit put it.

So far, Steinbuch's suit has only added buttercream frosting to the cake of humiliation Cutler baked him. It's hard to see how his privacy interests are 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 that 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 along her blog to Wonkette, which was recently added 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 he was sleeping with Cutler.

But layered over all this legal wrangling, a vital question remains: Does this lurid Internet dishing constitute important free speech, or a cruel invasion of privacy? Is there something about the Internet, or this speaker, or this subject that changes 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 a junior aide is never of legitimate concern to the public. But Wonkette's traffic (not to mention the Starr Report) certainly suggests otherwise. If free speech is best analogized to a "marketplace of ideas," isn't the idea that Washington powerbrokers still think of young female employees as the dessert cart an important one? My FindLaw colleague Julie Hilden has written persuasively that sexual imbalances between powerless female aides and powerful male lawyers in Washington should be 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, First Amendment wizard Eugene Volokh opposes most regulation of privacy information on free speech grounds. Judge Richard A. Posner similarly says the law shouldn't protect against the dissemination of even sordid information, since we need it to form accurate judgments about others.

Not so, writes Daniel Solove , an associate law professor at George Washington University. He argues that 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 even more urgent. If Brandeis was horrified by the paparazzi at a society wedding, what would he make of men who can snap photographs beneath the skirts of unsuspecting women and then upload them onto the Internet for all to see?

Maybe the core privacy principles are truly unchanged since Brandeis's 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 too high to warrant greater regulation. 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.

dahlia.lithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.