Wednesday, December 27, 2006

The Senate sex-blog case.

When Robert Steinbuch discovered his girlfriend had discussed intimate details about their sex life in her online diary, the Capitol Hill staffer didn't just get mad. He got a lawyer.

Soon, though, the racy tidbits about the sex lives of the two Senate aides faded from the front pages and the gossip pages. Steinbuch accepted a teaching job in Arkansas, leaving Washington and Jessica Cutler's "Washingtonienne" Web log behind.

While sex scandals turn over quickly in this city, lawsuits do not. Steinbuch's case over the embarrassing, sexually charged blog appears headed for an embarrassing, sexually charged trial.

Lurid testimony about spanking, handcuffs and prostitution aside, the Washingtonienne case could help establish whether people who keep online diaries are obligated to protect the privacy of the people they interact with offline. (CNN)

Despite the authoritative terms in which Americans describe it, free speech really doesn't reach that far. There are all kinds of limits on what we can say publicly: obscenity, speech that poses a danger to others (yelling "Fire!" in a crowded theater), slander, libel, etc. are all off limit. However, people have been writing lurid tell-all books about others forever, and unless non-disclosure agreements were signed, those books have generally been protected. Here's a distinction that would work in favor of bloggers: with books, a person is making money by telling embarrassing secrets; with blogs, that's not necessarily the case.

Although it would be horribly embarrassing for someone to write about the details of your sex life online, I expect the court to side with the blogger. Freedom of speech, though it has its limits, is usually favored by the courts.

Lanny Davis, the former special counsel to President Clinton who now advises companies during times of crisis, tells clients to decide whether they want justice or simply to set the record straight and get a message across.

"If you're looking for justice, the court system is the only thing you have," Davis
said. "If you're looking to get the full story, good and bad, into one coherent narrative, the court system is perhaps the worst possible forum."

Better forums for getting "the full story:" a tell-all book or a blog. We'll see if the latter is protected under free speech.

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