Posted on 11/30/2007 7:40:24 AM PST by ZGuy
When Philip Smith took to his blog to describe his (negative) experience of working with an eBay listing company, he did not expect that he would end up representing himself in a federal defamation and trademark dilution lawsuit or that he would have difficulty selling his condo after a lawyer for the plaintiffs clouded his title to the property. Now, after winning the case in spectacular fashion, Smith has emerged as an unlikely hero for bloggers everywhere who hope to be regarded as journalists.
No US court has yet weighed in with authority on the debate about whether bloggers count as journalists, but the recent federal decision from South Carolina does indicate that at least some bloggers are journalists. It's not about the title, it's about the content, said Judge Henry Hurlong, Jr.; a journalist turns out to be anyone who does journalism, and bloggers who do so have the same rights and privileges under federal law as the "real" journalists.
The case began when Smith blogged about his experience working with an eBay listing company called BidZirk. He had a less than satisfactory experience working with the company, and he used his article as a chance to talk about eBay listing services in general, then closed with a checklist that potential users of such services should consider.
In the course of the article, he did three things that galled BidZirk's owner, Daniel Schmidt: he 1) used the BidZirk logo, 2) described Schmidt as a "yes man," and 3) linked to a picture of Schmidt and his wife. Those actions prompted claims for 1) trademark dilution under the Lanham Act, 2) defamation, and 3) invasion of privacy.
Despite the federal charges, Smith elected to defend himself in court against a lawyer hired by Schmidt. The case was filed in January 2006 and went through the usual round of complaints and responses and motions. Then, in October 2006, plantiffs' attorney Kevin Elwell filed a "lis pendens" against Smith's condo, making it difficult for him to sell it.
On September 17, 2007, Smith moved for summary judgment in the case and argued that the plaintiffs had no real claim against him. The BidZirk logo was protected by his status as a journalist, he argued, while the "yes man" comment was not a statement of fact. As for the picture, he had only linked to a community site.
The judge agreed, and last week issued summary judgment for Smith. The most important section of the ruling is the one dealing with Smith's status as a journalist. The court admitted that it was impossible to determine in advance whether a blogger was a journalist and so used a "functional analysis" that "examines the content of the material, not the format, to determine whether it is journalism."
The judge noted that Smith wrote the article in order to convey information, that he had done research in preparing it, that he addressed both positive and negative aspects of his experience, and that he provided a checklist for others to use. "The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary," wrote the judge. Furthermore, he noted explicitly that "some bloggers are without question journalists."
Elwell, the attorney for the plaintiffs, was sanctioned for his actions. As a "competent attorney," the court found that he should have known that what he had done was totally improper, since the case in question was not about the title to any real estate, and lawyers can't simply go clouding up the title to people's homes to ensure they get paid at the end of a case. Elwell was forced to pay $1,000 in fines directly to Smith.
I’d call this a home run with bases loaded.
Gotta love this judge.
A better question might be whether today’s crop of journalists can be journalists instead of rat party hacks.
Imagine that, the 1st Amendment applies to all of us.......What a novel concept.........
That’s got to be embarassing to the lawyer, not just getting completely beaten by a guy representing himself but having to cough up a grand out of his own pocket for his crooked behavior.
Just 1 grand? Hell I would have made the SOB pay at least 50 grand..... just to teach the #(*#&$(*^$ a lesson
... a fool for a client eh?
Very interesting
“wrote the article in order to convey information, that he had done research in preparing it, that he addressed both positive and negative aspects of his experience, and that he provided a checklist for others to use.”
I guess I’ll start adding checklists to my articles. I fancy the notion that I can begin to call myself a “Journalist” vice author......
.
Another asteroid hits dinosaur media.
I agree with you. Attorneys are always telling juries to “send a message” by asking for exorbitant amounts.
He had it coming. The Judge was also 'setting precedent' with this ruling, so other lawyers wouldn't dare do the same to somebody else. It's an ethical violation to misuse the law for gain or perhaps in this case, an ego-massage.
Absolutely. The original case must be decided and a new suit filed to place a lien on the real estate before the lis pendens was issued.
"The Judge was also 'setting precedent' with this ruling, so other lawyers wouldn't dare do the same to somebody else."
LOL! There's already rules, precidents and meanings that this fool ignored. Just throw a bunch of shit and see if it sticks is their motto.
"It's an ethical violation to misuse the law for gain or perhaps in this case, an ego-massage."
I wonder if he's going to bill his client for the cost of the fine?
He probably will, my FReeper friend...and the idiot will pay it! I've worked in law long enough to realize the following realities are true:
(1) one is guilty until proven innocent (and you pay dearly for that knowledge)
(2) government agents, including 'officers of the Court' are just full of it; and
(3) lawyers and judges believe themselves to be God. (Not all, but enough of them.)
After I left the field, I got into education, which is just as bad if not worse.
I know that. The Judge did right. It didn't stick, but stunk. Abuse of the law is not a defense, any more than ignorance is. ;)
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