Cynthia Moreno hated the Central California town of Coalinga. She didn't hate it because it sounds rather like a sex act illegal in Arkansas. She hated it because she grew up there and found it stultifying and banal. So what did she do? Well, this is the new century. And Moreno — though a student at UC Berkeley — is a young person. So naturally she wrote a rant about Coalinga — creatively entitled "An Ode to Coalinga" — on her MySpace page, which apparently containing unflattering references to the fair city and its inhabitants.
There was a time when such a rant would have been issued verbally to teen friends, or written badly on ripped-out lined notebook paper. By necessity it would have had a limited audience. But as I mentioned, this is the new century. So Cynthia Moreno's Ode was accessible to anyone who read her MySpace page. One such person told another such person, and so on, and before you knew it, one Roger Campbell, the principal of Coalinga High School, had sent it to a friend who arranged for it to be printed on the editorial page of the Coalinga Record, which despite how it sounds is a newspaper and not a reference to a prior conviction. By then Moreno had taken down the Ode from her MySpace page, but it was too late — the Ode was published and attributed to her. Some of the inhabitants of Coalinga took offense and subjected Moreno's family to abuse and even death threats, forcing them to flee the city.
So what happened next? Oh, you know what happened next. Even if this is the new century, this is still America. The Moreno family sued the paper, the school district, and the principal, claiming (among other things) invasion of privacy.
But here's the thing — something posted on a publicly accessible page on the internet is, by definition, no longer private. You might feel that it's private, but your subjective feelings are irrelevant and, frankly, full of shit. As the Court of Appeal said in affirming the dismissal of Moreno's privacy cause of action,
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.
Exactly. The fact that the Moreno family was threatened is unacceptable, and any person caught threatening them should be prosecuted. But ultimately what happened to the Moreno family is no different than if Cynthia Moreno was mouthing off about Coalinga to a crowd downtown and someone wrote a story about it. Words have social consequences. Generally, those consequences have their root in other people's freedom of expression. If you don't want your opinion about something to be widely known and to reflect upon you, then don't shout it in the public square — or don't post it on an unprotected page on the internet, which is the functional equivalent. You may get lucky, and nobody may hear you. The square — both the physical one, and the digital one — is crowded and noisy, after all. But if someone does take notice, blame yourself, not them.
Edit: By the way, I should point out that in the unpublished portion of the Court's opinion, it reversed and remanded the case for Moreno's cause of action for intentional infliction of emotional distress, finding that the trial court should not have dismissed it. Looking into that angle now.
Further edit: No joy finding the unpublished opinion so far. Still looking.
Final edit: Eugene Volokh found the unpublished portion of the opinion, and has thoughts on why it is bad law.
Last 5 posts by Ken White
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