STEINBUCH v. CUTLER

Filing 7

Memorandum in opposition to motion re 5 / Memorandum in Opposition to Defendant's "Motion to Dismiss", filed by ROBERT STEINBUCH. (Rosen, Jonathan)

STEINBUCH v. CUTLER

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ STEINBUCH ) ) Plaintiff, ) ) CASE No. 01:05-CV-00970 (PLF) v. ) CUTLER ) ) Defendant. ) __________________________________________) MEMORANDUM IN OPPOSITION TO DEFENDANT'S "MOTION TO DISMISS" INTRODUCTORY STATEMENT Plaintiff and Defendant met in the Winter of 2004 and entered into a relationship in the Spring of that same year. From the inception of that relationship, unbeknownst to Plaintiff, Cutler revealed and disseminated personal, private, intimate facts about Plaintiff through her Internet website, or weblog (also knows as a "blog"), on the World Wide Web for anyone to read. Cutler also made false claims about Plaintiff in her public blog, painting Plaintiff in a false light. Cutler identified Plaintiff in various ways, including by using his name ­ for the ready identification by people who know Plaintiff, and people who don't know him. Cutler sought and received notoriety through her public blog. Cutler went on television and radio, further publicizing her invasion of Plaintiff's privacy, and Cutler republished her privacy-invading public blog in the Guardian newspaper and in book form. Cutler's outrageous and tortious actions subjected Plaintiff to pain and suffering beyond that which any reasonable person should be expected to bear. Plaintiff filed his Complaint in May of 2005. Without providing any discovery, including that required by Fed. R. Civ. P. 26, Cutler filed a motion to dismiss the Complaint.

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FACTS1 Plaintiff was a resident of Maryland and a counsel for the United States Senate Committee on the Judiciary, with an office in the Dirksen Senate Office Building. Plaintiff has never been married and has no children. Defendant was a resident of Washington, D.C., employed by a Senator, working in a different building than Plaintiff. Complaint ¶¶ 2-3. Plaintiff and Defendant met in the Winter of 2004 and entered into a relationship in the Spring of that same year. Upon the inception of the relationship, Cutler published, without Plaintiff's knowledge or consent, Plaintiff's personal, private, intimate facts on an Internet website, also known as a "weblog" or "blog," And, Cutler made false claims about Plaintiff in her public blog, painting Plaintiff in a false light. Complaint ¶ 10, ¶ 31. Cutler admits that she deliberately declined to password protect her blog, thus intentionally making it publicly available to anybody on the Internet. Cutler created a captioned title for her public blog -- the "Washingtonienne." Id. Cutler maintains ongoing conversations with strangers in her public blog. Moreover, the public blog has a catchy commercial title ­ "Washingtonienne" (which she also used as the title of her book.) Complaint Appendix A. Cutler's public blog described in graphic detail her ongoing sexual relationships with Plaintiff and other men. Plaintiff did not know that Cutler was disclosing Plaintiff's private, intimate facts on the Internet and was engaged in sexual relationships with other men. Complaint ¶ 11. Plaintiff was clearly identifiable to a substantial segment of the community in Cutler's her public blog. Cutler used the following identifiers for Plaintiff: his first name (Rob), his initials (RS), his religion (Jewish), his job (Committee Counsel to the Senate Committee on the

1

These facts are taken from the Complaint, and must be accepted as true for the purposes of a motion to

dismiss.

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Judiciary), his specific place of residence (Bethesda, MD), the fact that he has a twin; his appearance; his resemblance to a commonly-known individual; and the one specific and identifiable detail of Plaintiff that Cutler apparently had previously disclosed to colleagues and co-workers without Plaintiff's permission or knowledge. Complaint ¶¶12-13.2 Cutler's public blog contained the following passages of and concerning Plaintiff (Complaint ¶ 13): Item! A new contender for my fair hand. He works in one of the Committee offices. We will call him RS. . . . I put the moves on HIM. That is, I brought him back to MY place, I was the one who jumped on HIM. . . . To answer The Question, no, RS and I did not fuck. . . . RS looks just like George Clooney when he takes off his glasses. I am serious. [He] Has a great ass. Number of ejaculations: 2. He likes spanking. (Both giving and receiving.) . . . I told my coworkers about the spanking over lunch, but left out the nasty parts. (We were eating.) So they were shocked. Not sure I should have told them. . . . One of them told me that RS wore a purple turtleneck with a bright blue fleece over it at a recent staff retreat. Now I wonder if he's crazy or what. . . . [A colleague] mentioned that RS is very discrete, so I am taking that as a hint to keep quiet. . . . RS [and I] stopped and talked in the hall and he asked me out for a drink tonight. (Except he doesn't drink?) . . . Went out w/ RS after work yesterday. [Afterwards] we fucked every which way. THEN he tells me that he heard I've been spreading the spanking rumor around the office! He's not mad, but I am so ashamed of my behavior: I have such a big mouth. It got around and now EVERYBODY knows. But last night was fun. He's very up-front about sex. He likes talking dirty and stuff, and he told me that he likes submissive women. Good, now I can take it easy in bed. Just lay back and watch him do freaky shit. . . . By popular demand, I have finally created a key to keeping my sex life straight. . . . . . RS=My new office bf with whom I am embroiled in an office sex scandal. The current favorite.

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Defendant falsely claims that the public blog only refers to Plaintiff by his initials. As seen above, that is simply false. See Complaint ¶¶12-13 (quoting the blog).

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. . . RS just called again. Bad news: the rumor [that I spread about spanking] has spread to other offices. This is bad. . . . We went to his house after dinner, a four bedroom in Bethesda. . .. So it turns out that RS cannot finish with a condom on. He can barely stay hard. So he ends up taking it off and humping away at me. . . . I also learned that he was a cop, so he has scary police shit like handcuffs in his closet. He implied that we would be using tem next time, which is intiguing, but I know I'm going to get scared and panicky. (Which would probably turn him on.) . . . . I like this crazy hair-pulling, ass-smacking dude who wants to use handcuffs on me. Shit. . . . I called RS and told him to come over so AS could get a look at him. This morning she says (via IM), "He does look like George Clooney, but he's totally Woody Allen." She also said, "He will do anything to make you happy." . . . Then AS went home and RS took me back to his place for the second night in a row. . . .So I called RS [the next day] . . . . I ended up sleeping over in Bethesda for the third night in a row. He wants us to get tested together so we can stop using condoms. . . So I don't know if it's getting serious or what. We're seeing each other every day now. I like him very much and he likes me. But can it go anywhere, i.e. marriage? I don't know. He's Jewish, I'm not. And we have nasty sex like animals, not man and wife. But we work together, so there is an incentive to stay together and avoid an awkward breakup. And after a few months, people around the office will start "hearing wedding bells." I really just want to be a Jewish housewife with a big rock on my finger. . . . Oh, I forgot: I learned that RS has a twin! (Unf, nobody finds this as fascinating as I do.) . . . So Rob and I went upstairs and got ready for bed.. . . Then we fucked missionary. And he came. With a condom on. Then he was like, "Who the hell comes missionary anymore?!"

At the same time that Cutler was posting her public blog, she was also writing on her Senate computer a journal on how to exploit men for financial and materialistic gain. She did not post this on the Internet. Complaint ¶ 14. Cutler hyperlinked her public blog to another public blog called the "Wonkette," by Anna Marie Cox. On May 18, 2004, Cox hyperlinked back to the Defendant's public blog. Complaint

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¶¶ 16-17; Defendant's Brief at 9.3 That is, Cox did not copy or repeat Cutler's public blog into her own blog, Cox merely hyperlinked to Cutler's own public blog. Cutler immediately contacted Cox and identified herself for Cox's blog as the source of the Washingtonienne public blog. Only after Cutler's identified herself did Cox publish Cutler's identity ­ giving her the notoriety she was seeking. Cutler went out on a late-night drinking spree with Cox, posed for suggestive photos with Cox that Cox put on -- and later removed from -- her own website, and spent the night at Cox's house in Arlington, VA. Complaint ¶¶ 20-21. As a result of Defendant's actions, her public blog became notorious throughout Washington, D.C. and the nation. Complaint ¶¶ 17-18. The contents of Cutler's public blog, and the identification of Plaintiff by his full name, was repeated through other Internet sites, numerous newspapers and tabloid publications published in the United States and abroad, and various broadcast and cable television media, including The Washington Post, The New York Times, CNN, Fox News, The Scotsman, The Guardian, The India Times, The New York Post,

3

This was Wonkette's only original reference in her own blog to Cutler's public blog: "We realize that some of you who follow this link [bold added] will never come back: Compared to our humble blog, Washingtonienne [hyperlink] has half the politics and twice the ass-fucking. And she apparently gets paid for it. The ass-fucking, we mean. (Wish we'd thought of that.) But how could we not introduce you to her? She's like a Hill-based Belle de Jour and is full of, uhm, good advice, like, "A man who tries to fuck you in the ass when you are sober does not love you." (Good thing we're rarely sober!) She gives the serious inside scoop, too: Most of my living expenses are thankfully subsidized by a few generous older gentlemen. I'm sure I am not the only one who makes money on the side this way: how can anybody live on $25K/year??" http://www.wonkette.com/archives/a-girl-after-our-own-heart-shes-so-getting-a-book-deal-out-of-this004148.php Indeed, most of Cox's Wonkette blog follows this format ­ i.e., comprised of hyperlinks and Cox's, well, "clever" introductory comments. And the very same day, Cox referred to Cutler's public blog as just that: "Here she [Cutler] was, just keeping a public blog." http://www.wonkette.com/archives/where-is-washingtonienne-004154.php (emphasis added).

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The National Enquirer, and The Star. Complaint ¶ 19. Plaintiff was contacted directly by, among many others, the National Enquirer, the Hill and the Washington Post. Cox hired Cutler to write for her website; Cutler and Cox went on television together; Cutler and Cox discussed posing jointly for Playboy Magazine. Complaint ¶¶ 20-21. Cutler sought widespread public attention and publicity for herself; she further disseminated the contents of the public blog through the channels of mass media; she granted numerous interviews, capitalizing on her newfound fame and attention, and Cutler, herself, republished the entire public blog on June 2, 2004, in an article she wrote for the Guardian Newspaper (online version). http://www.guardian.co.uk/usa/story/0,12271,1229806,00.html Cutler, but not Cox, posed for a nude photo spread in Playboy Magazine, capitalizing on the publicity generated by her public blog and her relationship with Plaintiff. Complaint ¶¶ 2526. Cutler signed a book deal, receiving a $300,000 advance, with Hyperion-Disney Press, to write, as described by the publisher, "a thinly disguised novel," in which the contents of her public blog, including her relationship with Plaintiff, are described in graphic detail. According to Hyperion-Disney, Cutler writes an "utterly unrepentant roman a clef exposing the scandalous truth. . . . Now, in The Washingtonienne, Cutler's real-life experiences in the capital become fodder for a sexy, semi-autobiographical novel that is sure to initiate a new Washington parlor game of Who's Who. In a witty, unapologetic voice, the novel's narrator Jackie tells the story of . . . the staff counsel whose taste for spanking she `accidentally' leaks to the office."4 HyperionDisney Advertisement for Cutler's book (reproduced on numerous sites including Amazon.com). Cutler commented in the press that she feels sorry for those people that write blogs for years and never obtain a book deal. Complaint ¶¶ 27-28.
4

Individuals "own the right to exploit their names and likenesses for commercial gain." Michaels v. IEG, 5 F. Supp. 2d 823, 836 (C.D. Ca. 1998). Here, Defendant has misappropriated Plaintiff's likeness for her own commercial gain.

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Finally, Cutler lied about Plaintiff and scandalized private and personal facts to attract more attention, placing Plaintiff in a false light to all who read Cutler's public blog. Cutler falsely claimed , inter alia, that Plaintiff: 1. liked to "do freaky shit" with Cutler, 2. "fucked [Cutler] every which way," 3. "likes talking dirty [to Cutler]" 4. is "crazy," 5. "implied that [Plaintiff and Cutler] would be using [handcuffs] next time," 6. would be "turned on" by Cutler getting "scared and panicky," 7. and "[Cutler] have nasty sex like animals," and 8. "told [Cutler] that he likes submissive women." Complaint ¶ 31 & Appendix A. These disclosures were not made for the dissemination of news or material published in the public interest. These disclosures were a cruel and malicious exposure of the most intimate details of Plaintiff's life. Complaint ¶¶ 31-32. Plaintiff suffered severe emotional distress, humiliation, embarrassment, and anguish. Complaint ¶¶ 33-34. DISCUSSION I. Standards for Motion to Dismiss To survive . . . a [12(b)(6)] motion, the complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established . . . to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." . . . [T]he . . . court must draw all reasonable inferences in favor of the plaintiff, and must not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.

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Barnes v. District of Columbia, 2005 U.S. Dist. LEXIS 10435 at *3-*4 (D.D.C. July 18, 2005) (citations omitted) (brackets in original); Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 30-31 (D.D.C. 1999) ("Dismissal is appropriate `only if "it is clear that no relief can be granted under any set of facts that could be proven consistent with the allegations."'") Motions to dismiss under Rule 12(b)(6) are guided by Rule 8(a), which merely requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Schlagel v. Learning Tree Int'l, 1998 U.S. Dist. LEXIS 20306, at *5 (C.D. Cal. Dec. 23, 1998); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). Pursuant thereto, the motion must be denied if any legal theory supporting the complaint could be successful. Id at *5-6 (citing Haddock v. Board of Dental Examiners, 777 F 2d. 462, 464 (9th Cir. 1985). Questions of proof, not pleading, and are simply not the province of 12(b)(6) challenges. See, e.g., Jiricko v. Moser and Marsalek, P.C., 184 F.R.D. 611, 614 (E.D. Mo. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). II. Defendant Fails to Apply the Standard for a Motion to Dismiss by Contesting the Truthfulness of the Complaint and by Attempting to Introduce Material from Outside the Complaint Defendant fails to apply the proper standard for a motion to dismiss. A defendant is required to rely on the facts contained in the Complaint and accept them as true. Instead, Defendant here asserts "facts" wholly outside the Complaint and contends that they should be accepted as dispositive. 5 The source of Defendant's "factual" assertions are three-fold ­ and none of them constitute the only available source of facts for a motions to dismiss, i.e., the Complaint: First, in an action that itself demonstrates that a motion to dismiss is inapposite,
5

Absolutely no discovery has taken place in this case yet.

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Defendant attached an affidavit to her motion to dismiss. Defendant's Exhibit 1. Second, Defendant relies on her public blog that is a subject of this case for the truth of the matters asserted therein. Of course, attaching Defendant's public blog as an exhibit to the Complaint does not transform the statements contained therein into undisputed facts. As the Complaint makes perfectly clear, many of the statements contained in Defendant's public blog are false and give rise to a cause of action for false light. Complaint ¶ 31; Gill v. Curtis Pub. Co., 239 P.2d 630, 635-36 (CA 1952) ("[t]he published article and likeness are attached to the complaint [and set forth claims for invasion-of-privacy based on the false assertions therein]). Otherwise, by Defendant's logic, a complaint for false light that appropriately attached the false comments would be instantly self-defeating ­ as the alleged tortfeasor would simply assert that statements were now true by virtue of their attachment. Third, Defendant relies on the anonymous hearsay statements found on a random Internet site from "a man identified only as `Kevin at Wizbang.'" Defendant's Brief at 5. Indeed, Defendant does not even attach a printout of this alleged web-site ­ perhaps recognizing that each time she brings attention to the fact that she is relying on material outside the Complaint, it confirms the inapplicability of a motion to dismiss. The assertions that Defendant relies upon from her affidavit, her public blog, and the statements from the unidentified "Kevin at Wizbang" are simply not in the Complaint, and the evidence at trial will show them all to be false or immaterial. Defendant's reliance on the abovestated material defeats her Motion to Dismiss. III. Defendant Tortiously Invaded Plaintiff's Privacy Cutler's action constituted an invasion of Plaintiff's privacy. "Invasion of privacy is not one tort, but a complex of four, each with distinct elements and each describing a separate interest capable of being invaded. The four constituent torts are (1) intrusion upon one's solitude 9

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or seclusion; (2) public disclosure of private facts; (3) publicity that places one in a false light in the public eye; and (4) appropriating one's name or likeness for another's benefit." Wolf v. Regardie, 553 A.2d 1213, 1216-17 (D.C. 1989). "[I]t is `possible and not infrequent' for a particular act to constitute more than one of the four types of privacy torts." McSurely v. McClellan, 753 F. 2d 88, 113 (D.C. Cir. 1985) (citing Restatement (Second) of Torts § 652A). Defendant has disclosed private facts of Plaintiff and placed him in a false light.6 A. Defendant Publicly Disclosed Plaintiff's Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. The tort is generally considered as having five constituent elements: (1) publicity, (2) absent any waiver or privilege, (3) given to private facts (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities. Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989). Cutler caused widespread publication of private intimate facts concerning Plaintiff in a manner that would be deemed outrageous and highly offensive to an ordinary reasonable person of average sensibilities, subjecting Plaintiff to severe emotional distress, humiliation, embarrassment, and anguish; the private facts revealed include the number of times Plaintiff ejaculated, his difficulty in maintaining an erection while wearing a particular condom, spanking and hair pulling during sexual activity with Cutler (conveniently leaving out Cutler's request of both), Plaintiff's intimate personal conversations with Cutler during sexual activity and the course of their relationship, physical descriptions of Plaintiff's naked body, the physical details of the sexual positions Plaintiff assumed during sexual activity, Plaintiff's suggestion that he and

6

Defendant's attempts to disingenuously limit Plaintiff's claims are unavailing. Plaintiff's claims are not only clear, but even if they were not, they would satisfy the pleading requirements of the Federal Rules of Civil Procedure. Perkins v. School Bd. of Pinellas County, 152 F.R.D. 227, 229 (M.D. Fla. 1993); see Gilbert v. Medical Economics Co., 665 F.2d 305, 310 (10th Cir. 1981).

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Cutler be tested for sexually transmitted diseases so that they would not have to make use of a condom, and statements made by Plaintiff regarding sexual positions. Complaint ¶¶ 30-31.7 Defendant's actions constitute an improper public disclosure of private facts. See, e.g., McSurely v. McClellan, 753 F. 2d 88, 112 (D.C. Cir. 1985) (disclosure of intimate, sexual facts constitutes invasion of privacy); Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 840 (C.D. Cal 1998) (disclosure of private facts in explicit internet video satisfies elements of tort). B. Defendant Placed Plaintiff in a False Light

To prevail on a false light claim . . . [a party] must show that (a) the published material places appellant in a false light which "would be highly offensive to a reasonable person," and (b) "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001). Cutler published material that places Plaintiff in a false light that would be highly offensive to a reasonable person, and Cutler knew or acted recklessly as to the falsity of the material and how it placed Plaintiff in a false light. Cutler falsely claimed , inter alia, that Plaintiff: 1. liked to "do freaky shit" with Cutler, 2. "fucked [Cutler] every which way," 3. "likes talking dirty [to Cutler]" 4. is "crazy,"

Defendant argues that because Plaintiff and Defendant were not married, Plaintiff had no reasonable expectation of privacy in his relationship with Defendant. Defendant is mistaken. Unmarried individuals have a right to privacy. "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person . . . ." Lawrence v. Texas, 539 U.S. 558, 565 (2003) (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)) (italics in original, underline added). Moreover, in the public blog itself, Cutler speaks in depth about marrying Plaintiff. Cutler's public blog says: "[C]an it go anywhere, i.e.[,] marriage? I don't know. He's Jewish. . . . After a few months, people around the office will start `hearing wedding bells.' I really just want to be a Jewish housewife with a big rock on my finger." Complaint ¶ 13.

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5. "implied that [Plaintiff and Cutler] would be using [handcuffs] next time," 6. would be "turned on" by Cutler getting "scared and panicky," 7. and "[Cutler] have nasty sex like animals," and 8. "told [Cutler] that he likes submissive women." Complaint ¶ 31 & Appendix A. These assertions constitue false light. Gill v. Curtis Pub. Co., 239 P.2d 630, 634-36 (CA 1952) (depiction of "persons engaged in the so-called 'wrong kind of love'" constitutes false light); cf. Geisler v. Petrocelli, 616 F.2d 636, 637-39 (2d Cir. 1980) (valid claim for false depiction of "untoward sexual conduct which is graphically portrayed [in allegedly fictional book]"). Cutler intentionally distorted and sensationalized Plaintiff's statements and activities. Notwithstanding Cutler's comments to the contrary, Plaintiff didn't do "freaky shit [to Cutler]," Plaintiff and Cutler didn't have sex "every which way," Plaintiff didn't "like to talk dirty [to Cutler]," Plaintiff isn't "crazy," Plaintiff never "implied that [Plaintiff and Cutler] would be using [handcuffs] next time," Plaintiff wouldn't be "turned on" by Cutler getting "scared and panicky," Plaintiff and Cutler didn't "have nasty sex like animals," and Plaintiff never "told [Cutler] that he likes submissive women." Compliant ¶ 31. When the public blog is "read as a whole and in context," Defendant's Brief at 26, Cutler's characterizions about Plaintiff's sexual activities with her, including calling them "freaky," gave the false and offensive impression that the Plaintiff demonstrated highly unusual sexual behavior with Cutler. In fact, Plaintiff's sexual activities with Cutler were rather conventional, particularly when compared to what Cutler was doing with her other sex partners. Cutler furthered the false and offensive impression of Plaintiff in her book, Complaint ¶ 31, falsely suggesting, inter alia, that Plaintiff was an alcoholic. See Smith v. Huntington 12

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Publishing Co., 410 F. Supp. 1270, 1273-74 (D. Ohio 1975) ("The test is neither the intent of the author, nor the recognition by the plaintiff that the article might be about him. The test is whether a reasonable person could reasonably believe that the article referred to the plaintiff. . . . Viewed as an invasion of privacy case, the identification v. fictional problem is the same."); Cf. Geisler v. Petrocelli, 616 F.2d 636, 637-39 (2d Cir. 1980) (valid claim for false depiction "untoward sexual conduct which is graphically portrayed [in allegedly fictional book]"). All of this clearly constitutes false light. C. Defendant Publicized Her Public Blog 1. Defendant Has Admitted That She Intentionally Publicized Her Public Blog Cutler has admitted satisfying the publicity element of the tort of Invasion of Privacy. In a cover-story interview in the Washington Post Magazine, Cutler said: "I was the one writing on the bathroom wall." April Witt, Blog Interrupted, Washington Post Magazine, Aug. 15, 2004, at W12. Cutler said: "With a blog, you can't expect your private life to be private anymore."8 As Cutler admitted "once Blog entries containing the aforementioned disclosures were posted, there was no guarantee that Cutler could remove them without third parties (even limited to the four people to whom she had given access to the Blog) having read them." Defendant's Brief at 37.9 Publicity was her goal. Cutler said: "Some people with blogs are never going to get famous, and they've been doing it for, like, over a year. I feel bad for them." Id. According to
8

http://www.playboy.com/sex/features/dc_intern/dcintern_pop.html

9

Cutler again admits publicity: "the Blog was not publicized (within the meaning of the caselaw defining the publicity element of the tort) until . . . May 18, 2004."9 Defendant's Brief at 21 (emphasis added). Cutler suggests that another blogger publicized Cutler's blog. However, as Cutler admits, May 18, 2004 is the date that another blogger hyperlinked to Cutler's public blog: "links to [Cutler's publicly available] Blog . . . were displayed on [Cox's] popular Washington, D.C.-centered gossip site." Defendant's Brief at 9. Cutler tries to confuse the issues by implying that Cox reproduced Cutler's statements; she did not. Cox merely hyperlinked to Cutler's own public blog. Cutler's argument is akin to arguing "I publicized the material on the radio or television, but I'm not responsible because somebody else advertised the program." This is unavailing.

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Cutler: "Everyone should have a blog. It's the most democratic thing ever." Id. 2. Defendant Publicized Her Blog by Placing it on the Internet Placing something on the Internet, without any limitations in access such as password, constitutes widespread publicity. The Internet is undoubtedly and indisputably a powerful medium for the widespread distribution of information. If placing data on the Internet doesn't constitute publicity, what does? This Court has ruled that the entire world has access to Internet cites, including Cutler's public blog, by virtue of it being published on the Internet. Blumenthal v. Drudge, 992 F. Supp. 44, 48 (D.D.C. 1998) ("The web is designed to be inherently accessible from every Internet site in the world."). This Court held: "Never before has it been so easy to circulate speech among so many people. . . . [O]nce the word is written, it is disseminated to a mass audience literally with the touch of a button." Id. at 48 n.7 (emphasis added). The facts of this case bear out the power of the Internet. In an instant, a blog can catch the interest of millions of readers. This is precisely what happened to Cutler's blog. Any other rule, especially one that attempts to guess as to the number of people who actually read something on the Internet is simply unworkable. In an attempt to suggest that her actions don't satisfy the publicity element of the tort, Defendant for the first time, with material from outside the Complaint, asserts that she could not find the settings to password protect her public blog. Cutler is stymied by the facts; Cutler told the Washington Post, "I thought that was, like, too much trouble for my friends to have to type in a password." April Witt, Blog Interrupted, Washington Post Magazine, Aug. 15, 2004, at W12.

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3.

Defendant's False Claim That She "Only" Shared the Existence of Her Public Blog with Several People, Even had it been True, Does Not Alter the Publicity of Her Public Blog

Defendant claims that to her "knowledge, information, and belief, [sic] only these four people had access to the Blog before May 18, 2004." Defendant's Brief at 9. Notwithstanding that this is a factual matter that cannot be decided on a motion to dismiss, Defendant admits that she does not know how many people were reading her public blog when she concedes that "apparently" one of them contacted Cox. Defendant's Brief at 22. Cutler isn't saying for sure that this is true. She could have easily asked her friends. Instead, she says "apparently." Indeed, Cutler does not and cannot dispute that Cox could have read Cutler's public blog by finding it on the web herself, or having yet another third-party who found it, mention it to Cox. Discovery of Ana Marie Cox will undoubtedly shed some light on this factual question. Moreover, the claim that "only these four people [may have] had access to the Blog" is silly. It was available to the world. If one broadcasts something on TV, but only 3 people tune in, it's still publicity. One doesn't look to the Neilsons or take a poll about how many people might have watched a show. Publicity doesn't hinge upon how many readers or listeners or watchers actually hear the message but upon the degree of the exposure. Thus, in all cases, courts have never required people whose information was broadcast on television, radio, or on a sign outside a store to bring in a parade of people to testify that they actually saw or heard it. Instead, it is assumed that if the defendant uses a medium that is capable of widespread dissemination, publicity is satisfied. That four or more people may have been explicitly informed about Cutler's public blog by Cutler, herself, or her friends, does not mean that only these people were reading it. In fact,

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this proved to be false, countless people, including Plaintiff, read Cutler's actual public blog ­ not a copy or excerpts on another site. Cutler chose not to limit access to her blog. Futhermore, Cutler readily admits that she did not even know, and never had any contact with, at least one of the readers of the public blog. Defendant's Brief at 8. She never sought or received any assurances that this individual would keep the contents of her public blog confidential. This alone waives any claim that Cutler attempted to, or did, keep confidential her readily-accessible blog. If Defendant believed or treated the blog as private, why would she allow a perfect stranger to read it? Moreover, if, as Defendant contends, she just wanted to get the information only to three friends, why not just create an email list? Why create a blog -- and why expressly let others to read it? Indeed, Cutler admits that she sent out a "mass email" investigating whether there would be an audience for her public blog. Cutler told the Washington Post "So I sent a mass email out: `You guys, should I have my own blog or what?'". April Witt, Blog Interrupted, Washington Post Magazine, Aug. 15, 2004, at W12. The answer was "yes." Cutler could have continued communicating by "mass e-mail." She chose, consciously, to use a public blog instead. And, if only intended for friends, why give the public blog a catchy title and tagline (which was reused for the book).10 As Cutler said: "I was the one writing on the bathroom wall. . . . Some people with blogs are never going to get famous, and they've been doing it for, like, over a year. I feel bad for them." April Witt, Blog Interrupted, Washington Post Magazine, Aug.
Cutler again admits publicity in her brief: "the Blog was not publicized (within the meaning of the caselaw defining the publicity element of the tort) until . . . May 18, 2004."10 Defendant's Brief at 21 (emphasis added). As Cutler admits, this is the date that another blogger told her readers about the existence of Cutler's public blog: "links to [Cutler's public] Blog . . . were displayed on [Cox's] popular Washington, D.C.-centered gossip site." Defendant's Brief at 9. Cutler's defense seems to be that she didn't give permission to Cox (for whom Cutler later worked) to advertise Cutler's public blog, which Cox found on the internet herself, through another random reader, or through the assistance of one of the people that Cutler herself controlled. Id. Cutler's argument is akin to arguing "I publicized the material on the radio, but I'm not responsible because somebody else told potential listeners to listen to the program." This is unavailing.
10

16

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15, 2004, at W12.11 Cutler herself explicitly said: "With a blog, you can't expect your private life to be private anymore."12 Indeed, Courts have held that disclosures even more limited than what Defendant, herself, admits she made, satisfied the publicity element of the tort: [A] single communication to a single person [can] . . . constitute publicity. . . . [W]e agree with the trial court that the character and nature of the one person to whom the offending information was communicated . . . was a matter that had to be probed at a full trial. [The Court needed to determine whether the person to whom the Defendant disclosed Plaintiff's private facts] was "the biggest gossip in Muskego and West Allis Hospital" or whether "she had the stiffest upper lip of anyone in the state." Pachowitz v. LeDoux, 666 N.W.2d 88, 96-97 (WI Ct. App. 2003); McSurely v. McClellan, 753 F. 2d 88, 112 (D.C. Cir. 1985) ("`publication of the embarrassing facts to only one person alone was unlawful publication.'. . the size of the "public" was not relevant to whether a disclosure of embarrassing facts was tortious") (citations omitted).13 And, even under Defendant's set of facts, she asserts that one of her four recipients was a gossip who relayed the private information to Cox, who linked to Cutler's public blog. Defendant's Brief at 22. This, of course, is a factual issue that requires, inter alai, discovery of the four people.14 Cutler is trapped by her own "facts." Either (1) Cutler notified the Cox of the existence
11

Cutler's farfetched analogy to a fictional non-commercially available frequency that somehow required some fanciful special tuner to pick up, which, at the relevant time, only four people possessed, is misplaced. Anybody with a computer could have "picked up" her blog. There was no limitation to accessing Cutler's blog, whatsoever. She could have made it unavailable, but chose not to. Indeed, the analogy is so strained that it's unclear what special equipment her friends, her friend's unknown acquaintance, Cox, Plaintiff, and anybody else who read the public blog, needed to "pick it up." The appropriate analogy is that Cutler broadcast on an ordinary radio station. She thinks that because she only told a few friends of her radio broadcast that only they will be listening and everybody else ­ all of others with access ­ won't be tuning in. We know that did not happen. http://www.playboy.com/sex/features/dc_intern/dcintern_pop.html

12

13

"We discern no substantial disparity in the premises underlying privacy tort law in the two jurisdictions [of the District of Columbia and Kentucky]." McSurely v. McClellan, 753 F. 2d 88, 110 (D.C. Cir. 1985).

14

Cutler's assertion that Miss Robertson is the author of a blog called "Clueless" who communicates directly with Cutler in her publicly available bog is again outside the scope of the Complaint. The Complaint asserts that Cutler was communicating with other unknown bloggers on the Internet. Complaint ¶ 10.

17

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of her public blog, or (2) one of the people that she claims she controlled15 notified Cox of the public blog, or (3) people other than those that Cutler knew about were already reading the public blog. Under any of the alternatives, Cutler is responsible for the publication of her own public blog. Defendant's "third-party" cases are inapposite. In those cases, Defendants told a third party, and the third party repeated the private facts. Here, Cutler put the private information on the Internet. Cutler didn't tell one person ­ she told everyone and anyone who cared to read Cutler's public blog. Cutler admits that she doesn't know who was reading her public blog. Cutler's tortured claim is that although some unknown number of people were reading her public blog (including Cox), more people read the same actual public blog (not a copy on another site) after Cox mentioned the existence of Cutler's public blog. That's simply irrelevant. Cox did not repeat the private facts that Cutler placed on her public blog. Cox hyperlinked to Cutler's public blog. In essence, Cox said "look over there, see what private facts Cutler is actively disclosing." Now that more people "looked over there" to Cutler's public blog, Cutler blames her former employer Cox.16 Her attempts are unpersuasive. No court has ever held that placing data on the Internet is akin to hallway gossip. There is a big difference between whispering a secret to a friend versus putting it on the Internet for the world to see. 4. Cutler Herself Actually Sent Her Public Blog to Cox

Cutler tries to blame her friend and former employer for hyperlinking to her public blog

15

Cutler claims that her friend sought explicit permission from Cutler before alerting others to the public

blog.
16

Defendant now claims that it was "Cox who first telephoned Cutler after somehow securing Cutler's unlisted cellular telephone number. Cutler first spoke to Cox only upon her return of Cox's earlier call." Indeed, it is obviously a question of fact as to how Cox got Cutler's "unlisted" number -- on a phone not even owned by Cutler, but, rather, by one of her other sex partners. Moreover, even if Cutler's assertion is true, Cutler's return of an unanswered call not only demonstrates that she sought out Cox, but also shows that she was pursuing publicity.

18

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and somehow suggests that this avoids liability for her. As discussed above, this premise is false. Moreover, Cutler herself notified Cox of her public blog. Cutler admits that she "had twice referred to [the Wonkette blog site] in [her Washingtonienne]" blog. Defendant's Brief at 9 (brackets in original). The reference in Cutler's publicy-available blog was a hyperlink to the Wonkette. This means that any reader of Cutler's publicy-available blog who clicked his/her cursor on this hyperlink in Cutler's blog would be immediately redirected to the Wonkette blog. Blumenthal v. Drudge, 992 F. Supp. 44, 47 (D.D.C, 1998) n.2 ("Through a `hyperlink,' a browser may connect to another web site by clicking on the specially highlighted text or images on the initial web site. After clicking on the highlighted text, the browser is then directly taken to that particular web site."). Moreover, once the reader of Cutler's blog linked to the Wonkette through Cutler's public blog, Cox was notified as to the identity and location of Cutler's blog through her "sitemeter" feature. See http://www.sitemeter.com/default.asp?action=stats&site=sm1wonkette (providing a log of the blogs that link to Wonkette). These are the facts, and they will readily be proven at trial. Indeed, there are myriad websites that describe the way a blogger can draw more attention to her blog. With near unanimity, they say that the blogger should seek "reciprocal linking" ­ where the blogger and another blogger or website link to each other; and, "it's courtesy to add their link to your site first." See http://www.firstwebbuilder.co.uk/getlinks.html. That is exactly what Cutler admits to doing. Cutler's admission of hyperlinking to Wonkette is alone an admission that she notified Wonkette as to the existence of her public blog, notwithstanding Cutler's other communications with Cox/Wonkette.17
17

Defendant misstates the clear language of the Complaint when she asserts that Plaintiff "further tacitly admits that Wonkette was not alerted to the existence of the Blog by Cutler." Paragraph 20 of the Complaint, clearly says that Cutler contacted the Wonkette to identify herself as the author of the blog. Moreover, if she wanted to keep the blog confidential, why would Cutler provide her identity? Her name, unlike Plaintiff's, was not public until she, herself, made it public through thevery blog (Wonkette) that she claims "coincidentally"

19

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D.

Defendant Has No Claim to "Waiver"

Cutler appears to be claiming that her own improper prior oral disclosure regarding "spanking" somehow prejudices and estoppes Plaintiff from asserting his privacy rights regarding that improper disclosure and all other private facts about him. And, Cutler seems assert that had Plaintiff not inquired into Cutler's background, which he did, she would have been free to tortiously invade his privacy. Such a legal "claims" are unprecedented.18 Cutler is wrong on the facts and the law. 1. Plaintiff Never Approved of Defendant's Improper Disclosures

Defendant has no basis in the Complaint or elsewhere for her false claim that Plaintiff knew about and retroactively consented to Cutler's disclosure of private facts about him. Plaintiff never condoned or ratified Cutler's spreading the spanking rumor. At trial, the evidence will show that Plaintiff asked Defendant about a rumor that he heard that Defendant told someone in the office that Plaintiff and she "had spanked each other." Defendant responded by: claiming that she told only one person in confidence; claiming that that person must have (contrary to Defendant's instructions) disclosed it to others;19 claiming that she was extremely sorry; and, promising it would never happen again. Plaintiff clearly stated that he was upset and counseled Cutler that rumors spread easily, so she should be particularly careful in what she says and should exercise better discretion in the future. Defendant readily agreed and again apologized. The facts indicate that Plaintiff clearly communicated to the Defendant that he wanted the intimate details of their relationship to remain private. Defendant in her own public
advertised the existence of her public blog.
18

Such overreaching by Defendant's counsel is unsurprising in light of his previous claim that he will use a "scorched earth" approach to this litigation and suggestion that he will make this litigation very uncomfortable for U.S. Senator Mike DeWine during his reelection.

19

Defendant conveniently uses the very same argument here to describe how the Wonkette found out about Cutler's blog.

20

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blog even acknowledges as being on notice that Plaintiff is "discreet" and that she should "keep [his private facts] quiet."20 Indeed, when Defendant announced that she was writing a book, Plaintiff requested not to be in her book. Notwithstanding that, Cutler made Plaintiff the centerpiece of that book. According to Cutler's publisher (and agent), Cutler writes a "semiautobiographical novel that is sure to initiate a new Washington parlor game of Who's Who. In a witty, unapologetic voice, the novel's narrator Jackie tells the story of . . . the staff counsel whose taste for spanking she `accidentally' leaks to the office." Hyperion/Disney Advertisement for Cutler's book (reproduced on numerous sites including Amazon.com). Moreover, Cutler continues to ignore Plaintiff's request for privacy, even in the face of litigation, by now selling her book to HBO for broadcast. 2. Even if Defendant's Assertions from Outside the Complaint Were True, Which They're Not, Cutler Cannot Make a Claim for Waiver

Even if Defendant's false claims of Plaintiff somehow retroactively consenting to Cutler's limited disclosures were true and were contained in the Complaint, both of which they are not, they would not act as a waiver of Plaintiff's right to privacy. "The Court is not prepared to conclude that public exposure of one sexual encounter forever removes a person's privacy interest in all subsequent and previous sexual encounters." Michaels v. IEG, 5 F. Supp 2d at 845; Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556, 561 (Cal. Ct. App. 1988) (plaintiff's right to privacy not diminished by telling "neighbors, friends, family members, and officials" the private facts); Y.G. v. Jewish Hospital, 795 S.W.2d 488 (Mo. Ct. App. 1990) (plaintiff's right to privacy not diminished after telling several people); Multimedia WMAZ, Inc.

20

Similarly, Cutler again relies on her own public blog as dispositive and falsely asserts that Plaintiff approved of her inappropriate office disclosure. Cutler further claims that this somehow would constitute "approval" of all other disclosures about which Plaintiff didn't know. Indeed, each time Plaintiff and Cutler discussed her inappropriate office disclosure, she apologized. Why would she apologize if she thought Plaintiff's actions constituted some curious form of after-the-fact consent to her previous actions?

21

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v. Kubach, 443 S.E.2d 491 (Ga. 1994) (plaintiff's right to privacy not diminished after telling 60 people). Defendant cites Nobles v. Cartwright, 659 N.E.2d 1064, 1074 n.16 (Ind. Ct. App. 1995) for her novel "waiver" claim, but that case does not deal with waiver at all. The Court there found that the facts disclosed were a matter of public concern. The case simply does not stand for the proposition that Defendant suggests. Interestingly, however, the Court did state: [E]ven though a matter is of legitimate public concern, there may be details about a person involved in that matter which are too private to also be considered of legitimate public concern. . . .We are aware the disclosure of sexual and other such intimate information about even the most public of figures is often not considered newsworthy because it usually has nothing to do with that person's public life, and thus may not be considered of any legitimate concern to the public. Likewise, where involuntary public figures are involved, information of a sexual or intimate nature usually is unrelated to the general topic legitimately within the public's interest. Id. at 1077.21 Defendant next cites Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040, 1047 (Ct. App. 1984). That case supports Plaintiff, not Defendant. In Sipple, plaintiff sued certain publications for publishing that he was gay. Sipple himself, however, never considered this fact as private, as required by the tort. "In fact, [Sipple] quite candidly conceded that he did not make a secret of his being a homosexual and that if anyone would ask, he would frankly admit that he was gay." Id. at 1048. Moreover,

Defendant also cites Reuber v. Food Chemical News, Inc., 925 F.2d 703, 719 (4 Cir.) cert. denied, 501 U.S. 1212 (1991), for the proposition that the plaintiff waived his right to privacy. That case, too, supports Plaintiff's position here. In Reuber, the plaintiff sued the news company that published a reprimand letter about plaintiff that was obtained from an unknown source. The Court held that the news company could not be liable for the disclosure, as the news company was republishing what someone else had already illegally disclosed to it. Id. at 718-19. That case parallels this one, but Cutler is on the wrong side of the liability equation. Cutler is the one that made the initial disclosure, not Cox. Cutler is now trying to blame her former friend and employer, Cox, not even for republishing the contents of the blog, but merely for directing readers to Cutler's public blog on the Internet.21 Defendant's Brief at 9. While Cox may be liable for certain behavior, Reuber makes clear that Cutler is responsible for her original disclosure. Of course, if Cutler really believes Cox responsible, she should implead her here.

21

th

22

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The undisputed facts reveal that prior to the publication of the newspaper articles in question appellant's homosexual orientation and participation in gay community activities had been known by hundreds of people in a variety of cities, including New York, Dallas, Houston, San Diego, Los Angeles and San Francisco. Thus, appellant's deposition shows that prior to the assassination attempt appellant spent a lot of time in "Tenderloin" and "Castro," the well-known gay sections of San Francisco; that he frequented gay bars and other homosexual gatherings in both San Francisco and other cities; that he marched in gay parades on several occasions; that he supported the campaign of Mike Caringi for the election of "Emperor"; that he participated in the coronation of the "Emperor" and sat at Caringi's table on that occasion; that his friendship with Harvey Milk, another prominent gay, was well-known and publicized in gay newspapers; and that his homosexual association and name had been reported in gay magazines (such as Data Boy, Pacific Coast Times, Male Express, etc.) several times before the publications in question. Id. at 1047-48. Plaintiff here did not disclose any facts -- Defendant did.22 Thus, even under the facts that Defendant proffers from thin air, had Plaintiff (not the Defendant) disclosed the "spanking," (and done so sufficiently to constitute "publicity") Plaintiff certainly would be able to pursue his valid cause of action for all of the other disclosures in the public blog, which include, among others, comments about ejaculations, erections, physical descriptions of body parts, physical details of sexual positions, use and difficulty with a condom, hair pulling, and intimate personal conversations. Defendant's attempts to bootstrap all of her other tortious disclosures onto the one that she wrongfully disclosed is simply unavailing. None of the cases cited by Defendant support the proposition that had Plaintiff, contrary to the facts, actually consented to any disclosure, that he would have somehow waived his right to privacy regarding the many other private facts that Defendant disclosed. Indeed, the law is exactly the opposite. Michaels v. IEG, 5 F. Supp 2d at 845.

Defendant also cites Duran v. Detroit News, Inc., et al, 504 N.W.2d 715, 720 (Mich. Ct. App. 1993) , appeal denied, 512 N.W.2d 846 (Mich. 1994) and Cash v. Smith, 31 F.3d 1301, 1308 (11th Cir. 2000). Again, these cases neither support the propositions for which they were cited nor Defendant's position in general. In Duran, the plaintiffs sued for disclosure of where they lived. Duran at 720. The Court simply held that plaintiffs' address was already a matter of public record. Id. Here, Plaintiff' private information was in no way a matter of public record. In Cash, "Cash's deposition testimony, however, establishes that she did not treat her diabetes condition as a private matter herself." Cash at 1308. Plaintiff here always treated his private facts as private, and never disclosed them.

22

23

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3.

Plaintiff Inquired into Defendant's Sexual and Non-Sexual History and Defendant Lied to Plaintiff

Defendant makes false, post-litigation assertions ­ again not found in the Complaint -regarding what Plaintiff knew about Cutler's character, her attitude toward sexual relations, her relationships with others, and other factors by which he could assess Cutler.23 Defendant seems to be arguing that had Plaintiff not made inquiries of Defendant, Defendant somehow would be free to commit well-defined torts against Plaintiff. That's simply not the law, nor is it logical. At trial, the evidence will demonstrate that Plaintiff and Defendant did, in fact, discuss all of these topics: Defendant claimed, among other things, that she was not in a relationship,24 that she had never had a one-night stand, that her married parents were supplementing her income and subsidizing her rent, and that she didn't use drugs. Plaintiff did not know at the time that Defendant's statements were lies. Cutler affirmatively withheld the fact that she was having sex with five men, using drugs, and living in an apartment rented by, and in the name of, one of the other men with whom she was having sex.25 Even if Defendant's strained "waiver-of-privacyrights-through-insufficient-questioning" argument were a valid legal claim, under such a theory, Defendant's fraud itself could not serve to prejudice Plaintiff.26
23

Defendant's counsel baldly and incorrectly asserts that "For all intensive [sic] purposes, Cutler and [Plaintiff] knew nothing about each other." Defendant's Brief at 6. Indeed, Defendant specifically discussed previous relationships that had ended. In doing so, Defendant identified by name some of the people in her public blog. She went so far as to describe how and when those relationships ended. The description of those relationships as ending was fiction.

24

See, e.g., Susannah Breslin, The Washingtonienne: A Novel, Wired News, June 2, 2005 (In responding to what she has done with her new found wealth resulting from her lucrative book deal, Cutler says "I guess you can buy more drugs."); Cutler on-line letter to Ana Marie Cox of the Wonkette ("Even though I'm high right now as I write this"). Furthermore, Defendant contends, again without attribution to the Complaint, that she was at one point intoxicated, creates out of whole cloth further "facts" based thereon, and actually derides Plaintiff for being "stonecold" [sic] sober. The evidence at trail will show that Defendant was not intoxicated. Moreover, this does not bear on any issue in this case. Similarly, Defendant also falsely asserts that the colleague that she and Plaintiff met after work was Defendant's supervisor. This is a clearly testable assertion, and will be disproved at trial.
26

25

24

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Moreover, Defendant was an employee of two United States Senators, one from each party, and a Member of Congress, and Plaintiff reasonably relied upon the fact that Cutler underwent background checks for her Congressional positions. After all, Plaintiff did not meet Cutler on a street corner ­ although, perhaps, in retrospect, he could have. That the various House and Senate Offices in which Cutler worked were unable to discover her lies about graduating college (when she did not), her actual age (which she altered in her applications), her drug use (which she failed to disclose), only demonstrates that time did not expose her proclivity for prevarication. E. Defendant's Disclosure of Plaintiff's Private Facts is Not Protected as "Newsworthy"

Defendant's post-hoc claim of "newsworthiness" of Plaintiff's private facts is belied by the law and her own admissions. 1. Cutler Has Admitted that Plaintiff's Private Sexual Matters are Not Newsworthy

Cutler has consistently maintained ­ prior to this litigation, that is -- that she does not believe her the public blog to be newsworthy. In an interview with the Washington Post, Cutler said: "' If I were sleeping with a congressman, maybe [the public blog would be interesting], but I'm a nobody and the people I'm writing about are nobodies.'" Richard Leiby, Reliable Source, Washington Post, May 23, 2004. And, Cutler said on Cox's "Wonkette" blog: "I just think it's so silly. The blog is really about a bunch of nobodies fucking each other. I still can't believe people care. I mean, I thought it was pretty typical. Most people I know, that's a typical week." Wonkette blog found at http://www.wonkette.com/archives/washingtonienne-speaks-wonketteexclusive-must-credit-wonkette-the-washingtonienne-interview-009693.php Cutler told Playboy: "I wasn't doing anything that extraordinary . . . . None of these people [identified in the public blog] were elected officials, so they don't deserve the scrutiny. . . . [It's not like I 25

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dated Dick Cheney. If I had,] I would have tried to cash in on that earlier." Internal Affairs, Playboy (online), September 8, 2004. If Cutler now claims that her recitation of private facts "about a bunch of nobodies [having sex]" is newsworthy, then no bureaucrat or employee in Washington, D.C. ­ indeed no person anywhere in the Country ­ would have a right to privacy. 2. It is Hornbook Law that Sensational Prying into Private Sexual Matters is Not Newsworthy

While . . . the general criteria for determining newsworthiness are (a) the social value of the facts published; (b) the depth of the article's intrusion into ostensibly private affairs; and (c) the extent to which the individual voluntarily acceded to a position of public notoriety, the cases and authorities further explain that the paramount test of newsworthiness is whether the matter is of legitimate public interest which in turn must be determined according to the community mores. . . . The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.'" Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040, 1048-49 (italics in original, underline added, citation omitted).27 The right to privacy "is not merely balancing the individual's privacy interest against the public's interest in disclosure. The public, as evidenced by the enactment of [a right to privacy] has an equally important interest in safeguarding the individual's right to keep private aspects of his life private. . . . Privacy in [certain] matters is not only essential to the welfare of the individual, but also to the well-being of society." Bonome v. Kaysen, 17 Mass. L. Rep. 695, No. 03-2767, 2004 Mass. Super. LEXIS 172 (Super. Ct. 2004) at *9-*10 (emphasis added). It is hornbook law that "[s]exual relations . . . are normally entirely private matters . . . . [Even regarding a] public figure, . . . intimate details of . . . sexual relations are entitled to [be] ke[pt] [private]." Doe v. Mills, 212 Mich. App. 73, 82 (Mich. Ct. App. 1995).
27

Moreover, "[i]f there is room for differing views whether a publication would be newsworthy the question is one to be determined by the jury and not the court." Times-Mirror Co. v. Superior Court, 198 Cal. App. 3d 1420, 1428-1429 (Cal. Ct. App. 1988) (court found that witness' name in murder case is not newsworthy).

26

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3.

Plaintiff's Private Sexual Matters are Not Newsworthy

In her motion, Defendant doesn't even attempt to describe the "newsworthiness" of: the number of times Plaintiff ejaculated, his difficulty in maintaining an erection while wearing a particular condom, spanking and hair pulling during sexual activity with Cutler (conveniently leaving out Cutler's request of both), Plaintiff's intimate personal conversations with Cutler during sexual activity and the course of their relationship, physical descriptions of Plaintiff's naked body, the physical details of the sexual positions Plaintiff assumed during sexual activity, Plaintiff's suggestion that he and Cutler be tested for sexually transmitted diseases so that they would not have to make use of a condom, and statements made by Plaintiff regarding sexual positions. Complaint ¶¶ 30-31. Here, "the publicity is so offensive as to constitute a morbid and sensational prying into private lives for its own sake, it serves no legitimate public interest and is not deserving of protection.'" Michaels v. IEG, 5 F. Supp. 2d at 840. In fact, Cutler admitted such, stating that "I wrote an X-rated blog." April Witt, Blog Interrupted, Washington Post Magazine, Aug. 15, 2004, at W12.28

28

In contrast to this case, in Bonome v. Kaysen, defendant wrote a book about her: seemingly undiagnosable vaginal pain in a series of ruminations about the condition's effects on many aspects of her life, including her overall physical and emotional state, friendships, and her relationship with her boyfriend. It details her intense pain and discomfort and her many fruitless attempts to obtain an accurate medical diagnosis and effective treatment. One of the central themes of the book concerns the impact of her chronic pain on the emotional and physical relationship with Kaysen's boyfriend. To that end, the book details, graphically on a few occasions, several sexual encounters between them. It portrays the boyfriend as becoming increasingly frustrated and impatient with Kaysen's condition and her reluctance and/or refusal to engage in physical intimacy. . . . Ultimately, the development of this theme culminates in a scene where the boyfriend is physically forceful in an attempt to engage her in sex. This scene is followed by ruminations about whether the relationship had exceeded the bounds of consensual sexual relations into the realm of coerced nonconsensual sex[, wherein Kaysen says:] "For a short time I indulged myself in this idea. He was trying to rape me."

Id. at *4-*5 (first bracket in original). A book about medical illness and possible rape is both newsworthy and wholly dissimilar to the instant case. Additionally, the defendant in Bonome took efforts to limit the plaintiff's exposure. Id. at 20. Quite the opposite is true here. Defendant's public blog is not about health, welfare, or crime, and Defendant made virtually every effort to exploit Plaintiff's identity.

27

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4.

"Newsworthiness" Requires the Statements at Issue to Be True; Many of the Statements in this Case are False ­ Precluding any "Newsworthiness" Claim

It is axiomatic that "newsworthiness" requires the statements at issue to be true. Bonome at *8. Cutler's claim to newsworthiness is based on the false premise that the public blog is entirely true. Plaintiff has already pointed out the numerous lies contained therein. For example, Cutler, inter alia, falsely asserted that Plaintiff: li