Blog sex scandal trial could spank protagonists

WASHINGTON – 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.

Cutler, a former aide to Sen. Mike DeWine, R-Ohio, says she created the blog in 2004 to keep a few friends up to date on her social life. Like a digital version of the sex-themed banter from a "Sex and the City" episode, Cutler described the thrill and tribulations of juggling sexual relationships with six men.

One of those men was Steinbuch, a counsel to DeWine on the Judiciary Committee. Cutler called him the "current favorite" and said he resembled George Clooney, liked spanking and disliked condoms.

"He's very upfront about sex," she wrote. "He likes talking dirty and stuff, and he told me that he likes submissive women."

When Ana Marie Cox, then the editor of the popular gossip Web site Wonkette.com, discovered and linked to Cutler's blog, the story spun out of control. Cutler was fired and Steinbuch says he was publicly humiliated. He went to court seeking more than $20 million in damages.

The case is embroiled in thorny pretrial issues, with each side demanding personal information from the other. Steinbuch wants to know how much money Cutler received from the man she called her "sugar daddy." Cutler demanded Steinbuch's student evaluations from the University of Arkansas at Little Rock Law School, where he teaches.

Steinbuch also recently added Cox as a defendant in the case, though he has not served her with court papers. A trial date has not been set, but Matthew Billips, Cutler's attorney, said there are no settlement talks that might head off a trial.

"I have no idea what he wants," Billips said. "He's never said, 'This is what I think should be done."'

Neither Steinbuch nor his attorney returned phone calls seeking comment. In court, attorney Jonathan Rosen said Steinbuch wants to restore his good name. Students in his legal ethics class all search the Internet and learn about the blog, Rosen said.

"It's not funny and it's damaging," Rosen told a judge. "It's horrible, absolutely horrible."

To win, Steinbuch will have to prove that the details of their sexual relationship were private and publishing them was highly offensive. Billips argues that Cutler never intended to make the blog public but, in the information age, data is easily copied and distributed beyond its intended audience.

If the case goes to trial, its outcome will be important both to bloggers and to people who chronicle their lives on social-networking sites such as MySpace and Facebook. Marc Rotenberg, director of the Electronic Privacy Information Center, said he may teach the Washingtonienne case this spring during his class at Georgetown Law School.

"Anybody who wants to reveal their own private life has a right to do that. It's a different question when you reveal someone else's private life," he said, adding that simply calling something a diary doesn't make it one. "It's not sitting in a nice, leather-bound book under a pillow. It's online where a million people can find it."

Rotenberg asked, what if Cutler had secretly videotaped the encounters and sold the videos without Steinbuch's consent? There has to be a line somewhere, he said.

Since being fired, Cutler moved back to New York, wrote a novel based on the scandal, posed nude for Playboy and started a new Web site, where she solicits donations "for slutty clothes and drugs."

She wouldn't discuss the case but said she's amazed by what has happened.

"The fact that anyone was interested in the first place was a surprise," she said. "The fact that there was a lawsuit in the first place was a surprise. That it's still going on is a surprise."

U.S. District Judge Paul Friedman was surprised, too.

"I don't know why we're here in federal court to begin with," Friedman told attorneys for both sides in April. "I don't know why this guy thought it was smart to file a lawsuit and lay out all of his private, intimate details."

In that sense, the Washingtonienne lawsuit has become a study into when to make a federal case out of something and when to just let it go away. It's a question lawyers wrestle with all the time.

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."