Steinbuch v. Cutler Update

By Eric Goldman

Steinbuch v. Cutler, 2006 WL 3060084 (D.D.C. Oct 30, 2006)

Steinbuch v. Cutler has the attributes of a modern cyberlaw classic–it’s got sex, power, politics, blogs, and sex. You may recall the story. Jessica Cutler was an intern on the Hill and engaged in multiple simultaneous relationships. She then commenced an affair with Robert Steinbuch, a staff counsel for the Senate Judiciary Committee. She documented some of the affair’s lurid details on a “private blog” that allegedly was just for a few of her closest friends. Although she never used Robert Steinbuch’s name in full, she relayed enough details that his identity was deducible by others. Then, the details on this “private blog” became very public when picked up by Wonkette, one of the largest blogs around. Ultimately, Steinbuch sued Cutler for invasion of privacy and emotional distress. My previous posts on the complaint and Cutler’s motion to dismiss (which was denied in April).

In yesterday’s ruling, Steinbuch sought to amend the complaint and to add Ana Marie Cox, the then-principal author of Wonkette, as a defendant. The court granted the motion, but with respect to adding Cox as a defendant, the court did so with reservations. The plaintiff’s key allegation is that Cutler and Cox were working together, but the details about their interaction matter a great deal. Generally, Cox’s behavior should be preempted by 47 USC 230 (a statute not cited by the court in this ruling). Pursuant to 47 USC 230, Cox cannot be liable for linking from Wonkette to Cutler’s blog, nor should Cox be liable for quoting the blog if the words were written by Cutler (see, e.g., Batzel v. Smith; D’Alonzo v. Truscello). As the court says, “The Court cautions, however, that plaintiff should seek to add defendants to this case only where he has a good faith belief that those persons are liable under the tort claims that he pleads and meet each element of those claims.” When the court dismisses the claims against Cox based on 47 USC 230, I hope the court will revisit this admonishment and make appropriate economic recompense.

In other news, Steinbuch has left DC and is now a law professor at Univ. of Arkansas, Little Rock (his school bio).

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