Reasonable person, my ass!

Yesterday, Wonkette linked to a Legal Times article about law professor Robert Steinbuch, who is suing Jessica Cutler, as well as to my reading series, In The Flesh, where Jessica read about a gross yet highly entertaining story about a tampon.

The most interesting part of this recent article is that, contrary to anything in the original lawsuit, Steinbuch is now claiming not only humiliation and invasion of privacy, but factual error. As a friend said, who is going to testify, people he’s slept with? How could it possibly be proved that Cutler was or was not telling the truth? I'm not a lawyer, but applying those old LSAT reading comprehension skills, this seems like the biggest difference between his strategy then and now:

It’s hard to know why anyone would care to set the record straight about whether he is able to ejaculate with or without a condom or whether he likes to spank or be spanked. But Rosen says that’s exactly what Steinbuch intends to do.

“There are graphic and intimate details which are not true,” he said in a telephone interview. “Those are facts that are going to be litigated.”

Furthermore, and what I’ve been trying to get at all along (see last year's Village Voice column "Spanking Jessica Cutler"), is that spanking, per se, is not "unreasonable." For that matter, premature ejaculation is quite common as well.

And he must show that the contents of Cutler’s blog are highly offensive to reasonable people.

If, as a society, we are going to claim that the allegation that someone likes to spank and be spanked is “highly offensive,” I think we have a long way to go toward acknowledging the diversity of sexual expression. It's not that he should have wanted her to post these things, but is the worst part that she posted them, or that they were happening? Read carefully and the word "scorned" comes up in various articles, along with a sense of betrayal, hurt and anger. All perfectly valid emotions, but enough to warrant a successful lawsuit? I hope not.

Now, several people have asked me, “Well, wouldn’t you be offended/upset if someone posted such items about you on a blog?” But that is really not the question here. It’s not that Steinbuch could have been expected to jump for joy at reading Cutler’s blog, it’s whether Cutler has a right to post about her own life (and, by extension, I would ask that of all the sex bloggers and other bloggers out there posting personal accounts of their lives). I would recommend taking a gander at Tucker Max’s legal wranglings with Miss Vermont, Katy Johnson. If Tucker won the right to name names, I do not see why Jessica should be retroactively punished for using initials.

I see this as both a cultural issue, in terms of people's comfort level with their sexuality (a little tip: if you're going to do something you would absolutely die of shame if people found out about, don't do it - for instance, I could tell you about the person I had unprotected sex with who I read about at In The Flesh, and a few people know who that is, but I haven't done so here. I don't know what the legal consequences of naming him would be, but at the end of the day, it happened, and if you really don't want anyone to know, don't do it.) as well as a First Amendment issue. I think every blogger should be very concerned about this case as well (read the Legal Times piece for the bit about how when you post on your blog you are "publishing" your entire blog again, not just that specific entry, which is what Steinbuch is claiming, thereby affecting the statute of limitations). Reading both the article and the original suit, it seems clear that it was Cutler’s actions that offended him the most. Here's Steinbuch's lawyer, with extra emphasis for absurdity (have you ever been on MySpace, Livejournal, Blogger, etc.?):

“People’s behavior is only based on actions that are enforced,” Rosen says. “That’s what defines right and wrong. The whole point of this case is to maintain Rob’s privacy, but not just for him, for everybody — that you can’t just start dating some girl and suddenly it’s on the Internet.”

If she had only been sleeping with him, I don’t think this lawsuit would be happening—then again, the entire “scandal” stems from the multiple partners and the cash angle. As Wonkette hints at, if she had said what a huge stud he was, with a great cock who made her come a million times, I doubt this case would be proceeding.

Going back to the fact vs. falsehood angle:

The private facts include . . . spanking and hair pulling during their sexual activity (but conveniently leave out Cutler’s request of both) . . .

So if it’s false, why was this included? Something can’t be both a private “fact” and a falsehood. The original cause of action talks about “emotional distress,” “outrageous conduct,” and the defendant acting “reckless.” These are highly different claims than that the allegations are false. So which is it? Because if suddenly what was on her blog is "false," that to me would indicate he should be suing her for slander. I know I'm not a lawyer, but this distinction just screams out at me and wasn't really addressed in the Legal Times article.

Also, hadn’t picked up on this before. Item 22 of the original suit: “Cox hired Cutler to write for her website.” Is that true?