by Daniel J. Solove
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LET'S TALK ABOUT SEX
Robert was an attorney employed by a U.S. senator. He had a slight crush on Jessica Cutler, a twenty-five-year-old staff assistant to the senator who had begun working there in February 2004. Robert had briefly met Jessica early on when Jessica began working, bur he rarely had contact with her since he worked in a different part of the office.
Jessica had recently moved to Washington from New York. Slender and attractive, Jessica was part Korean, part Caucasian. When she moved to D.C., she first lived with her boyfriend, but she grew bored with him and began to cheat on him. They broke up, and she moved our into her own apartment. 
On Thursday, May 6, a coworker told Jessica that Robert liked her and invited them both out for drinks at Union Station after work. Unbeknownst to Robert, Jessica had created a blog the day before, called The Washingtonienne, which was written in the style of a Washington "Sex and the City" column. The blog began like this:
WEDNESDAY, MAY 05, 2004
I have a "glamour job" on the Hill. That is, I could not care less about gov or politics, but working for a Senator looks good on my resume. And these marble hallways are such great places for meeting boys and showing off my outfits.
POSTED BY THE WASHINGTONIENNE AT 5:32 PM
According to Jessica, she created her blog to keep a few of her friends informed about her escapades. She didn't set up the blog so that only people with a password could read it because she thought it would be "too much trouble for my friends to have to type in a password."  She stated that she believed that her blog would be a needle in the electronic haystack of cyberspace.
On her blog, Jessica described the daily adventures in her life, which consisted of a lot of partying with various men. One of them was her ex-boyfriend, with whom she continued to have sex occasionally. Another was a staffer at a senator's office where she interned before getting her current job. Jessica was also sleeping with a man she described as a "sugar daddy who wants nothing but anal." And she was also involved with a married man, the chief of staff at a government agency who was paying her for sex. 
Before she left for drinks with Robert and their coworker on Thursday evening, Jessica dashed off a post to her blog. She wrote that Robert was a "new contender for my fair hand" and referred to him by his real initials. Jessica didn't seem all that excited about the evening, noting that it would be "full of awkward moments." But apparently the evening went better than Jessica had expected. In a post the next morning, she wrote about their sexual encounters that evening, including the fact that Robert was into spanking.
Robert began a relationship with Jessica. Things were moving fast. They were sleeping together and began seeing each other frequently. Robert wasn't aware of Jessica's other sexual exploits, and he had no idea that as their relationship began to develop, Jessica was blogging the intimate details. In one post, Jessica wrote that she and Robert went out for drinks after work and then went back to her place to have sex "every which way." That evening, Robert reported having heard that she had told a few friends in the office about his interest in spanking. Jessica confessed that she had told a few people, and Robert forgave her but told her to stop talking about it. But although Jessica stopped gossiping about it in the office, she continued to blog about her sex life with Robert. After writing about the fact that he "likes submissive women," Jessica quipped: "Good, now I can take it easy in bed. Just lay back and watch him do freaky shit."
Jessica blogged about Robert's difficulty using a condom. "I also learned that he was a cop," she wrote, "so he has scary police shit like handcuffs in his closet. He implied that we would be using them next time, which is intriguing." Jessica also recounted that they were beginning to like each other and mused about the future of their relationship, which was about a week old at the time. She wondered whether there was a future: "But can it go anywhere, i.e., marriage? 1don't know. He's Jewish, I'm not. And we have nasty sex like animals, not man and wife."
May 18 was the last day of their relationship. From Jessica's post that morning, it appeared that everything was progressing satisfactorily in her relationship with Robert. They had plans to go out that evening and continue celebrating Jessica's birthday.
But Jessica's blog was about to send everything into a tailspin. That day, the popular blog Wonkette linked to Jessica's blog. Wonkette is an inside-the-beltway gossip blog started by Ana Marie Cox, "a 31-year-old self-described failed journalist."  Wonkette is akin to a digital tabloid. The Village Voice declared that Wonkette "swims in the libidinal current of American politics." The New York Times called it "gossipy, raunchy, potty-mouthed." The conservative pundit Michelle Malkin called Cox "profanity-laced and sex-obsessed ... [a] vain, young, trash-mouthed skank." Wonkette's website proudly displayed these quotations and more. It received tens of thousands of visitors each day. 
Wonkette's posting on the morning of May 18 began like this:
A Girl After Our Own Heart (She's So Getting a Book Deal Out of This)
We realize that some of you who follow this link will never come back: Compared to our humble blog, Washingtonienne has half the politics and twice the ass-fucking.
Jessica's blog went primetime. When Jessica learned that Wonkette had linked to her blog, she quickly deleted it.  But it was too late. Tens of thousands of people had read it. Copies of it had already been archived. Robert came into Jessica's office with a printout of her blog, told her the relationship was over, and walked away. A few minutes later, the woman who had set Jessica up with Robert for drinks came into Jessica's office. The woman was furious. She told Jessica that she should leave. Jessica quickly slipped out of the office.
Three days after Wonkette had plugged Washingtonienne, on May 21, the senator's office put out a press release: "On May 18, 2004, our office became aware of allegations that an employee had been using Senate resources and work-time to post unsuitable and offensive material to an Internet Weblog .... The employee has been terminated."  Being fired was nothing new for Jessica. One of her friends said that "Jessica has been fired from more jobs than anyone I know."  The same day, Wonkette posted an interview with Jessica:
WASHINGTONIENNE SPEAKS!! WONKETTE EXCLUSIVE!! MUST CREDIT WONKETTE!! THE WASHINGTONIENNE INTERVIEW!!
Wonkette spoke to Washingtonienne. Her name is Jessica Cutler. ...
Washingtonienne: Hello? Wonkette? This is the Washingtonienne!
Wonkette: You certainly are in good spirits.
Washingtonienne: Oh, this whole thing is so two days ago for me....
Wonkette: ... Now, first of all, is there anything you want people to know?
Washingtonienne: Uhm ... I'm not naming names. I'm nor ashamed of anything I wrote in the blog. And people are sad if they're interested in such a low level sex scandal. I wrote the blog not to ruin people's lives. It was just for the amusement of me and my friends. 
The incident was written up in most major newspapers, including the Washington Post and the New York Times. CNN discussed the story too. And, of course, the tabloids got into the action.
Life was good for Jessica. She was an instant celebrity, and she relished the attention. She went out partying with Ana Marie Cox, and they posed suggestively together in photos which were posted on Wonkette. She did television interviews and posed nude for Playboy. In 2005 she wrote a novel, titled The Washingtonienne, for which she received a $300,000 advance. A blurb on the book boasted: "The Capitol Hill aide who scandalized Washington, D.C., with her blog has now written a sharp, steamy, utterly unrepentant novel set against the backdrop of the nation's capital." Her novel was based in part on events discussed in the blog. The only drawback to Jessica's fame was that she had some trouble finding a new job in D.C., so she moved back to New York City. She also started a new blog called Jessica Cutler Online, where she currently blogs about sex, clothes, and partying. Her blog accepts donations. "I need money for slutty clothes and drugs!" Jessica implores. 
Life was good for the author of Wonkette, too. Her blog traffic shot up more than threefold, to more than 1.5 million visits in the month of May 2004. MTV asked Ana Marie Cox to help cover the Democratic National Convention.  She later wrote a novel, Dog Days, and became a columnist for Time magazine and its website. 
For Robert, life was not so good. In May 2005 he filed a lawsuit against Jessica, stating:
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 ....
No reasonable person would want the intimate physical, verbal, emotional, and psychological details of his or her sexual life and romantic relationships life exposed against his or her will on the Internet for the entire world to read. It is one thing to be manipulated and used by a lover, it is another thing to be cruelly exposed to the world. 
The complaint was served on Jessica as she was giving a reading from her book at a Washington bookstore.
Playboy magazine asked Jessica: "What advice would you give to someone starting a blog?" Jessica replied: "With a blog, you can't expect your private life to be private anymore. You just never know. But, when you work on the Hill you find out the guy you've been sleeping with has told everyone in your office about it. So, what's the difference? It's writing on the bathroom wall." 
In another interview, Jessica said that she felt "really bad for the guys. They didn't deserve this." But she was enjoying her newfound fame: "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." According to Jessica: "Everyone should have a blog. It's the most democratic thing ever."