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Thursday, November 17, 2005

Lawsuits are much more interesting to me now than they were in 1996

I'd have made a terrible lawyer, but some aspects of the law still fascinate me. Just got this July 26th filing by Jessica Cutler's lawyers via my Google news alert on "Robert Steinbuch" and found it fascinating, especially this part (bolding mine):

Steinbuch’s complaint comes too late as to all but the last blog entry concerning
him. Leaving aside the one-year statute of limitations, Steinbuch’s complaint fails to state a claim upon which relief can be granted because: (1) Steinbuch had no reasonable expectation of privacy in a sexual relationship he chose to have with Cutler; (2) Steinbuch waived whatever right of privacy he may initially have held in his sexual relationship with Cutler by consenting to Cutler’s disclosure of details of that relationship to their fellow co-workers; (3) most of the facts Cutler disclosed about Steinbuch in the blog were no longer private by the time they were described in the blog (the right of privacy with respect to the remainder having been waived); (4) the website Wonkette gained unauthorized access to Cutler’s personal blog and "publicized" its contents within the meaning of invasion of privacy caselaw; and (5) Cutler had a First Amendment privilege to discuss her own personal sexual experiences with Steinbuch, which have a logical nexus to the general topic of sex, money, and political power, matters of legitimate public interest, especially in Washington.

Steinbuch’s claim for intentional infliction of emotional distress suffers the same
infirmities with respect to the statute of limitations and the First Amendment privilege. Additionally, this claim is deficient as a matter of law because: (1) Cutler’s conduct was not so outrageous in character as to go beyond all possible bounds of decency and neither was it so atrocious and utterly intolerable in a civilized community; (2) Steinbuch’s allegations fail to satisfy the requisite level of intentionality or to establish causation; and (3) Steinbuch’s allegations of emotional distress are wholly devoid of particularity and are therefore legal conclusions masquerading as fact.

And finally, Steinbuch’s acquiescence to Cutler’s sharing of the intimate details
of his sexual relationship with her served to communicate to Cutler during the relevant period that he did not care who knew about such details. Steinbuch is thus now equitably estopped from complaining — more than a year later — about Cutler’s disclosures.


I got criticized by some S&M-ers for suggesting that privacy was a right created by the Supreme Court in 1973 in Roe v. Wade and that its value has been overrated and inflated to unreasonable levels. I was talking less in legal terms. I'm definitely pro-choice, but I think we've all seen that pinning reproductive freedom to such precarious legal grounds hasn't exactly been a surefire way to make it last. I'm certainly not a legal scholar, but I do think the right to privacy was established on shaky grounds, and, as has been argued by Catharine MacKinnon, is not necessarily a feminist victory for several reasons, which you can investigate on your own. So not only is the right to privacy not totally secure, but if we expand that out, how can we ever guarantee people total privacy? We can't, nor should we necessarily. Beyond that, we are living in an era when people are willing to give up all semblance of privacy for a shot at fame. Whether we like it or not, we live in a tabloid, gossip-fueled culture. The First Amendment protects our speech and expression about our public and private activities (see bolded part above). Additionally, the expectations for privacy as we go about our daily business have lessened as we as a society have opted for less privacy and more information. Tell-alls, talk shows, blogs and a general desire to report on everything we see and hear shows us this. How else to explain the rise of tabloid magazines and Gawker Stalker? To explain the differential treatment between JFK's affairs and Bill Clinton's? The rise of the roman a clef? To me, Bill Clinton is the prime example of that very thin line between the claim of sexual privacy and hypcorisy, and I recommend the anthology Our Monica, Ourselves for more about that. Steinbuch is claiming in many ways the same thing by admitting to the behavior in question and then asking for damages; he wants to have his pussy and beat it too.

The reason I don't condemn this is because privacy, in many ways, is a way for all of us to hide behind barricades, behind privilege, behind hypocrisy, especially when it comes to sex. With the New York magazine piece I see even more people clamoring to call Jessica names like "slutbag," and, as Girlynyc, said, Why hate on the easy girls? Even more so, it's easy to say those things from the guise of an anonymous or private setting, when we know nothing, or at least, not everything, about your sex life. I'm not saying that everyone needs to be as open as me or Jessica or any of the women interviewed, but that to expect privacy to stop at the bedroom door is foolish and, at this point, almost anti-American. We want our gossip, we want our scandals, we want our salaciousness. And I'm gonna be optimistic and choose the bright side of looking at this voraciousness: we want to know because we're curious about sex. We want sexual information in the forms of porn, books, columns, and media including gossip. We want the scoop, the dirty, the nasty, and to hide behind privacy while simultaneously calling people names, or to, say, be willing to indulge in things like spanking, brag about it around the office, and then sue for infliction of emotional distress is, to me, disgusting, hypocritical, and means that we've failed in creating a culture of real sexual choice.

All that being said, and perhaps this makes me slightly hypocritical, I'm actually not 100% exhibitonistic. I do enjoy and value my privacy, though the things I'm private about might be different than the things you are. I don't believe stating something like "I'm into spanking" really is so damaging, or that it even tells you anything much about me beyond that statement. It doesn't tell you what I'm like to hang out with, it doesn't tell you how I laugh, it doesn't tell you whether I can keep a secret or what kind of friend I am, in short, it doesn't really tell you all that much that matters to me about how I am as a person. We all have public and private sides, things we show and things we don't, and that's fine; but creating a culture that hypes sexual privacy does pave the way for sexual scandal, hypocrisy and name-calling. It makes examples out of some people while others are off doing the very same things without anyone being the wiser. Everyone wants to know "am I normal?" but we'll never know the answer and shouldn't care what everyone else is doing anyway, at least as a barometer for our own sexual desires. Instead of being so nosy about who everyone else is fucking, it would be nice if we all focused on our own sexual satisfaction. I'm not against the voyeurism, because I'm as nosy and voyeuristic as you get, but I also examine my own actions and motivations, and I try not to judge others, because at the end of the day, what you do in bed, unless I'm interested in or sleeping with you, really just doesn't affect what I do in bed.

Perhaps tangentially related: An editorial in favor of legalizing prostitution

Maybe it's time we stop feigning innocence and family values and open the legal doors to prostitution once more.

One need only look at the immense hypocrisy over sex work and adultery to see why "privacy" just isn't a cure-all. We seem to act like it's everybody else watching porn, hiring sex workers, working in the sex industry and committing adultery and yes, for some people, it is other people, but clearly not for everyone. At least some of us own up to what we're doing, and I will always admire a proud whore versus a cowardly lawyer. Just can't resist, via the last link to Bowen School of Law, bolding mine:

Professor Steinbuch joined the Bowen School of Law faculty in 2005 after several years in government and private practice. His government service includes clerking on the United States Court of Appeals and working at the United States Department of Justice. Most recently, he worked for the United States Senate Judiciary Committee. His academic and practice interests include: commercial law, ethics, law and economics, criminal law, law and government and evidence.

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