Cynthia Moreno clearly didn't expect anyone but a few friends to take note when she indulged in that time-honored pastime of college students: ranting about how much she hated her small hometown. Unfortunately, the local high school's principal, Roger Campbell, also spotted the "Ode to Coalinga" Moreno posted on her MySpace page—and forwarded it to the Coalinga Record, where it appeared as a letter to the editor under Moreno's name. The backlash was so severe—including death threats and even a gunshot at the family house—that Moreno's parents and sister had to leave town. Nevertheless, a California State appellate court ruled late last week that the publication of the letter didn't violate Moreno's privacy rights.
The then-Berkeley student's jeremiad—which began "the older I get, the more I realize how much I despise Coalinga," and reportedly went on to disparage the California town's residents over the span of about 700 words—only appeared on her MySpace page for six days before it was removed. By then, however, Campbell—principal at the same high school attended by Moreno's sister Araceli—had spotted it and forwarded it to his friend Pamela Pond, editor at the Coalinga Record. So extreme was the reaction of the residents that Moreno's father David shuttered his 20-year-old trucking business, Left Over Freight Transportation, and moved the family out of town.
The family sued both the paper (quickly dropped from the suit under state "anti-SLAPP" laws that discourage lawsuits against the press) and Campbell, claiming both invasion of privacy and infliction of emotional distress. On the privacy claim, Fifth District Court of Appeal Justice Bert Levy concluded that it was Moreno who had decided to make her rant public:
Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia’s affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.
While the published letter did add Moreno's full name—only her first name appeared on the MySpace page—she was so clearly identified by both circumstance and photographs that the court regarded it as too thin a basis to support an invasion of privacy tort.
The court did, however decide that a jury should be allowed to hear the infliction of emotional distress claim. Especially given Cambell's role as the principal of Moreno's sister, the opinion reasoned, people might conceivably differ on whether his actions were sufficiently "extreme and outrageous" to constitute a tort. Writing about the case earlier this week, UCLA law professor Eugene Volokh blasted that element of the decision, arguing that all Moreno's claims should have been tossed:
The speech here may have been merely anti-Coalinga, but under the First Amendment precisely the same logic should apply when someone publicizes another's postings that are (say) racist, anti-American, sexist, pro-drug-use, anti-gay, pro-crime, or or anti-religious in order to fault them for their views. If you find that someone from your community is expressing views that you believe repulsive, and you try to condemn the person by posting the statements to your blog — or circulating them on an e-mail list or publishing them in a newspaper — you could, given the logic of the case, face a ruinous lawsuit.
This case may seem like a no-brainer, but social networking sites could present some harder cases in the near future. Many such sites, after all, feature relatively fine-grained privacy controls, permitting users to determine precisely who will have access to different kinds of content that are "published" online. Moreover, the terms of service for those sites often expressly forbid the republication of user content elsewhere. So when is a particular post or photograph shared widely enough that it has crossed the line from private to public? No doubt we'll have fresh lawsuits to test that question soon enough.
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