Washingtonienne Gets All Up in her Torts

An actual lawyer or two have written to comment on the merits of the Washingtonienne suit. Surprise: It has some. Wonkette's privacy tort operative says that the tort at issue is known as the "publication of private facts." Yow! We're wriggling around already. Wait, it gets better:

The elements of that tort are that the defendant publicized (the threshhold for which is pretty low, even communication to one other person might meet the standard) facts about the plaintiff that would cause a reasonable person extreme embarrassment or mental anguish.  Given the nature of what was published, I don't think he'll have much trouble showing that a reasonable person would be mortified. 

Continued after the jump.

The real question will be whether the information she provided was specific enough to identify him.  She may have named him only "RS," but she did mention other details about him -- e.g. that he was a lawyer, Jewish, and so on.  He will claim that given the smallish size of the Hill community, these details aggregated into an identification.  People did figure out who he was, after all.  That's prima facie evidence that she identified him.  There will also be the question of whether he knew she was writing about him in her blog.  If so, she might have a defense that he waived his rights by acquiescence.


All torts are defined by state-level common law, i.e. case precedent.  Accordingly, the actual strength of the case will depend on the jurisdiction in which the suit was filed and the existing case law in that jurisdiction. 


One funny part that got missed here is that he doesn't appear to be asserting defamation.  Why?  Probably because truth is an absolute defense and he doesn't want the substance of what she wrote about him being proved in court.

Yeah, the guy apparently has enough performance anxiety (from the brief): "The private facts revealed include ... his difficulty in maintaining an erection while wearing a particular condom." You think a condom's bad, try open court.

Washingtonienne Brief [Wonkette]


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