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Yes, Virginia, Bloggers Can Be Journalists

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A recent lawsuit judgment provided evidence for two things: a blogger may qualify as a journalist; and just because you’re a lawyer doesn’t mean you have to act like one. Advice: being mean is no way to get through court.

Blogger (and now, journalist) Philip Smith decided he didn’t like the way eBay listing company BidZirk did business* and decided to blog about it. BidZirk and its lawyer decided they didn’t like what Smith said and sued him for trademark dilution, defamation, and invasion of privacy.

Trademark dilution for using the BidZirk logo; defamation for calling BidZirk owner Daniel Schmidt "a yes man"; and invasion of privacy for linking to a picture of Schmidt and his wife.

Smith – though not a lawyer, Smith represented himself – argued use of the logo was protected by his status as a journalist (and by extension, I believe, fair use) and that he had linked to a public site. Calling Schmidt "a yes man," is also protected speech, as it is a statement of opinion, not fact.

You could call him an "assbag," for example, and he would have no cause for damages of any kind. Or, for another example, you could say his lawyer seemed "rather mean and prickish," based on his actions in court, and be okay because that’s an opinion.

As reported several places like Ars Technica, Technology & Marketing Law Blog, or from Smith’s own blog, Schmidt’s lawyer tried some underhanded tactics to pressure Smith into folding. (You might argue that the whole suit was an expensive attempt at silencing a critic, but that’s rather moot now.)


BidZirk’s attorney filed a lis pendens on Smith’s condo, which made it appear the property was tied up in legal proceedings, thus making it difficult to sell. Smith says BidZirk also tried to force him to answer private questions without cause.

The judge agreed and said the questions appeared "to have been made for no other purpose than to antagonize and embarrass the defendant," and called the attorney’s actions "grossly improper."

That landed the attorney with a $1,000 sanction, payable to Mr. Smith. He obviously scored a dismissal, a fine, public embarrassment for the plaintiffs, and a victory for the little guy, but he scored something else much bigger: a ruling that classifies bloggers as journalists.

Judge Henry Hurlong, Jr. decided it is the content, not the format, that makes a journalist. " 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." And yes, some bloggers are most certainly journalists.

But I like Technology & Marketing Law blog author Eric Goldman’s words the best, so we’ll leave it at that:

I see this ruling as a redemption of sorts – it takes a lot of courage to blog, and it takes even more courage for bloggers to stand behind their words when challenged, but we have a responsibility to make sure we can’t be bullied on either front. On behalf of bloggers everywhere, we applaud Philip Smith’s courage and determination to defeat this case.

*Ironically, a lot more people know about the situation than did previously. If they’d left it alone, how bad could it have gotten?

Yes, Virginia, Bloggers Can Be Journalists
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