Blogger Wins 1.5 Year Legal Battle

FixYourThinking writes "After nearly one and a half years of harassment from a relentless attorney, it seems that quietly a blogger in South Carolina has won a monumental ruling in favor of bloggers. In a summary judgement requested by the Defendant, Philip Smith was able to obtain a special sanction after the Plaintiff attorney put a 'notice of lien' (called lis pendens) on Smith's residence. The judge also reprimanded the Plaintiff attorney for abusive deposition and court procedure. The case set forth the following; 'It's not the format; it's the content and intention that make text journalism / reporting.'"

Comments

1.5 years for a court case isn't that bad

[xxxJonBoyxxx]

1.5 years for a court case isn't that bad.

It took me 10 months to get a traffic ticket dismissed last year. Exxon's managed to dodge justice after it's Alaskan f-up for 18 years with legal maneuvers.

Re:1.5 years for a court case isn't that bad

[edward2020]

And don't forget R. Kelly's criminal suit that he has pending against him. That's been, what, like 6-7 years since he... well, we know what he did.

Re:1.5 years for a court case isn't that bad

[dintech]

I believe I can lie...

Re:1.5 years for a court case isn't that bad

[everphilski]

So much for the right to a fair and speedy trial...

It's a right the incriminated must invoke.

I just wish

[Anonymous Coward]

The ruling made it clear that blogging is commentary and/or editorializing, but not reporting in the journalism sense. In 99% of all cases, bloggers are not journalists and they should not be given the rights of someone who holds a press card.

Re:I just wish

[Anonymous Coward]

FYI, You're confusing the word 'right' with the word 'priviledge'.

Re:I just wish

[BiggerIsBetter]

The ruling made it clear that blogging is commentary and/or editorializing, but not reporting in the journalism sense. In 99% of all cases, bloggers are not journalists and they should not be given the rights of someone who holds a press card. I think the Content and Intention keywords cover this. Even if a blogger has aspirations (intention) of journalistic writing, they shouldn't just roll up expecting a press card without some previous work (content) to back up that position. If a blogger wants to call themself a journalist, they'll have to earn it - just like someone working for a print publication.

Re:I just wish

[Br00se]

At the risk of feeding a troll. There is no reason to provide any special protections to a "professional" journalist. Anyone that keeps a record of events should enjoy all the protections allowed by law. Having a press card does not make you immune from making mistakes or from being unethical or incompetent. Trust me, I've worked in newspapers for 17 years. I've worked with people who are considered processional journalists and with citizen journalists in my community, and there is no reason to legally distinguish between the two.

Re:I just wish

[dwiget001]

Uh, nope. A right cannot be taken away. It is a right, you have it, period. Freedom of the press is just that. Doesn't matter what form that press is. And the ruling does no such thing regarding blogging not being journalism. And, a press pass is something given by and entity (event runner, sponsor, etc.) to members of the media (whatever media that happens to be). A "press pass" is not a governmental issued thing, period. It would be unconstitutional for the government to issue any such thing and only allow people with the "press pass" to engage in *press*. Read your Constitution, make sure you understand the big words, starting with "Constitution".

Re:I just wish

[Anonymous Coward]

There is no word "priviledge". Perhaps you were referring to the outhouse on the cliff?

Re:I just wish

[gstoddart]

A "press pass" is not a governmental issued thing, period. It would be unconstitutional for the government to issue any such thing and only allow people with the "press pass" to engage in *press*. Read your Constitution, make sure you understand the big words, starting with "Constitution".

Three words: Free Speech Zones.

Compare and discuss amongst yourselves. Is it constitutional to say that you can express dissent locked up inside of this fence after we've already corralled and ID'd you, or do you have the right to free speech everywhere. Don't taze me bro!!

Two more words: Habeus Corpus.

Is it constitutional for the government to suspend Habeus Corpus of citizens and non-citizens alike as they see fit? Bonus points if you can identify the part of the constitution which expressly forbids this.

Three more words: Warrantless Wire Tapping.

Surely, it can't be constitutional to eavesdrop on everyone in case you might be able to find something, right? Because, you're supposed to be secure in your person and papers from unreasonable search and seizure, right?

The current administration, with the help of their crack (head) legal minds, have allowed all sorts of things to happen which are blatantly unconstitutional. Singling out this one aspect (while, theoretically valid) is, in practice, pointless.

If they can get an AG to issue a legal opinion, claim executive privilege to prevent any form of legal action, as well as refusing to answer questions to congress ... then, in effect, they can do anything they want to. And, apparently, there is nobody around who can force them to comply with the law. They passed into unconstitutionality years ago, and they seem to be making up exceptions that allow them to override the rule of law and the oversight of Congress.

A right cannot be taken away. It is a right, you have it, period.

Let us hope that remains true. Because, the government has already taken away rights. And, they continue to do so. As has been stated here on Slashdot so often, "National Security" and "Protecting Children" are the secret codes to unlock the constitution.

Cheers

Re:I just wish

[gstoddart]

You're an AC, so I'll type this slowly ...

Nobody has the power to take away a right.

Morally, you're correct. In practice, the people with the laws and the guns can trample them fairly easily. And, they're doing it.

You need to understand that a right is not given by anybody and can not be taken away by anybody. It is yours by the very nature of being alive.

Oh, I understand that, in the abstract, a right should be recognized as something which is inalienable and not something which is granted or revoked. In practice, I believe there are a lot of situations in which the theoretically immutable right can be stripped away by someone who doesn't care.

See, as much as I believe that (ideally) what you say should be true, there's that little practical measure by which the rights of some people are being taken away (or trampled on, or ignored, or infringed, or abrigated, or what have you) -- that is happening now.

Just because the government is infringing on the rights of the people does not mean they don't have them.

Infringe upon them long enough, pass laws saying they were never there in the first place, and get your AG and justice department to erode them long enough, and they're eventually gone. Failure to fight for your rights can, in fact, mean that they get taken away from you by someone who isn't quite so concerned with the niceties as you.

People who rule by force don't give a flying fsck about your theoretical rights. They just do it how they want to. When the man with a gun doesn't agree with your assertion that you have a right to do something, he's not going to get the finer points of your argument. Once people decide your 'quaint' notion of inherent rights is something they don't want to listen to any more ... then you're SOL.

Failure to prevent it happening now means in a few generations, asserting you ever had these rights will be a matter of historical curiousity -- and, of no immediate practical benefit. At present, the current administration is trying very hard to undermine both the constitution and your rights ... all in the name of National Security.

Cheers

What's so special about that press card?

[Sowelu]

Half sarcasm and half serious: Give me one good reason that someone with a press pass deserves rights that you don't have without it.

Re:What's so special about that press card?

[BiggerIsBetter]

Half sarcasm and half serious: Give me one good reason that someone with a press pass deserves rights that you don't have without it. Logistics. Someone holding a press pass acts as proxy for the wider population. The press pass is just a convienient way to manage the number of people you have a deal with, and hopefully a gaurantee of some measure of professionalism in their interaction (as opposed to say, the "Don't tase me bro" guy).

Re:What's so special about that press card?

[monkeyboythom]

If I'd written all the truth I knew for the past ten years, about 600 people - including me - would be rotting in prison cells from Rio to Seattle today. Absolute truth is a very rare and dangerous commodity in the context of professional journalism.
- Hunter S. Thompson

Re:What's so special about that press card?

[king-manic]

Logistics. Someone holding a press pass acts as proxy for the wider population. The press pass is just a convienient way to manage the number of people you have a deal with, and hopefully a gaurantee of some measure of professionalism in their interaction (as opposed to say, the "Don't tase me bro" guy). press protection is not given based on how many people you may represent. Freedom of the press is to ensure free dissemination of ideas and the "don't tase me bro" guy is just as valid of an opinion as Anderson Cooper or Rush Limbaugh. There is no guarantee that a person working for mass media represents an opinion any greater then his own nor is he likely to be more literate about any particular topic aside for English language for print journalists and make-up and diction for TV journalists. Many bloggers have a better grasp of specialty issues then mass media journalists.

Re:What's so special about that press card?

[cHiphead]

But why is that right extended to CORPORATE news org employees and not Slashdot commentors? We regularly act a proxy for the wider population in our comments, whether or not that wider population agrees with what we have to say or report (which is the same case as a news organizations' reporters and editors content).

The "dont tase me bro" guy is an exception and a straw man argument to level in this discussion, although his intent must be proven as non-news and fictional. In retrospect, his incident DID finally inspire me to read the Greg Palast book (Armed Madhouse), so perhaps even the pranksters can have a news worthy purpose.

Do/Did you work in a news org of some sort?

Logistics are not the issue, control of the news flow(not just from a propaganda angle, from a corporate value and advertising revenue viewpoint as well) is the real issue.

Cheers.

Re:What's so special about that press card?

[samschof]

I am sure the government and large media companies would love the right to designate who is and who is not a journalist. I think we are safer regarding all citizens as journalists.

Re:What's so special about that press card?

[sm62704]

Someone holding a press pass acts as proxy for the wider population

Apologies for this US-centric post, but I don't remember "reporter" being on the last ballot I cast. I also don't recall reading that Thoman Paine needed a press pass for his "Common Sense" articles.

I've read the Constitution, and I don't remember anything in the 1st amendment regarding press passes, or government powers to issue them. That document doesn't grant rights to citizens; it specifically states that you already have all rights. What it does is grant power to government, and limited power at that,

Sadly, opinions like yours have allowed government to gain far greater powers than granted by the Constitution.

-mcgrew

Re:What's so special about that press card?

[king-manic]

You can say that he has the right to speak, sure, but that's not the same thing. Frankly, he's a damned looney nutter, and so no, his opinion is not valid. In my own opinion, of course.

What do you define as "press protection" anyway? Why should he get such treatment? Because he has an opinion? That's no good, everybody has an opinion. No, press protection generally is, in fact, a matter of numbers. If somebody has enough people listening to them, then they have more of a right to speak (actually, more of a right to NOT speak, since that's what "press protection" generally does) than other people.

Sorry, but that's a simple fact. When more people listen to you, what you say is more important. You can curse the darkness all you like, it's when you talk into the lights that you make a difference. Importance is not dictated by the number of people who listen. Extremely important information and opinions can go unheard. Free speech protection and various rights, privileges, and related laws help ensure opinions are not silenced. If the power that be came down on Micheal Giest (prominent columnist/copy right blogger/law professor) or another notable person in the blogsphere he should be afforded the same protection as if he was a columnist for the Phoenix star. They publish their opinions for others to see. What is the difference between a blogger and the independent press? The "don't tase me bro" guy may be a nutter but you ought to hear what he says before you write him off. I have not so I have yet to write him off.

No one has any "more right to speak" then they have "right to be heard". Minority opinions and minority insights should be afforded the same protection as majority opinions and insights. Rush Limbaugh is not right because 13.5 million Americans listen to him, he is right or wrong based on the content of his speech. I am not wrong simply because only 0-100 people see my post, I am right or wrong based on the content of my text. Affording any less protection is to diminish the nascent "social media" that is set to become part of the mainstream media for the next generation.

Does this work in reverse?

[TheGoodSteven]

If a blogger can be given the same rights as a journalist because of the content of his message, does that mean that media outlets - TV shows, newspapers, etc., can have it taken away if it is found that their content isn't really news?

Now if he could get paid for the inconvenience ...

[meburke]

The article didn't mention whether the sanctions had any fines or reparations attached. Luckily the blogger was able to argue his case pro se, but this is not normally advisable and it is mostly unsuccessful. The original blog was apparently written in high temper, but the writer still managed to keep his cool. As a warning to other bloggers: Speak from verifiable experience (yours or others'), and speak the truth with precision. You may be entitled to your opinion, but you may have to defend it, so hyperbole and angry characterizations count against you.

Why the third person?

[cooley]

From TFS:

After nearly one and a half years of harassment from a relentless attorney, it seems that quietly a blogger in South Carolina has won a monumental ruling in favor of bloggers Directed at the story's submitter, "fixyourthinking":
Hey buddy, I'm really glad you (rightfully) won your court case and all against those jerks, but why post it to Slashdot with a sentence like that? The use of the word "seems" implies to me that you're trying to pretend you're not Phillip Smith.

Aren't you, in fact, the defendant in this case? Submitting stuff and pretending you're not the owner of the blog you're linking to, and implying you're not the fellow referenced in the case, is just a little lame IMHO.

Press Pass != Rights

[Chibi Merrow]

A press card doesn't grant you any rights that a normal citizen does not enjoy.

You can't grant someone rights. They either have them or they don't.

Re:Press Pass != Rights

[Chibi Merrow]

Judges are usually respectful of a reporter's desire for confidentiality

Didn't a New York Times reporter just go to jail for not naming a source? I think you're mistaken. Granted, she just wanted a book out of the deal...

Press passes are issued by some organization and only give the wearer privileges with regards to that organization. If you get an event press pass, you're treated as press for that event. If the police give you a press pass, you can cross police lines. Neither an event organizer or the police are required to give a pass to anyone. If a newspaper gives you a press pass, no one is under any obligation to honor it, it only carries the weight of the reputation of the entity who printed it. Same with professional press organizations.

Regardless, you can't give yourself a press pass (or at least one anyone will respect), someone has to recognize you as Press. Which means "editorial" style bloggers will probably not earn the privilege but ones that do actual journalism have a chance. And that's what it is, a privilege, that can be taken away. A right can't be taken away (except through criminal proceedings), nor bestowed by a piece of paper.

Not Censorship.

[LWATCDR]

At least not government censorship.
This was first of all a civil case. You can sue anyone for anything.
So here is what happened.
"BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct*. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs' counsel to boot."
Somebody didn't like a company and posted a nasty opinion of them. They got their lawyer to sue. The case went to court and was tossed out.
In other words a great example of the system working.
It sounds as if BidZirk's lawyers so messed up this case that the plaintiff might even have a shot act getting his legal fees.

when will companies understand?

[KeepQuiet]

When will companies understand that if they launch a big campaign against something/someone found online, it just spreads like wildfire and usually ends up with their humiliation. Dear companies, just suck that bad review up and give better service next time.

Bullshit.

[PhxBlue]

The ruling made it clear that blogging is commentary and/or editorializing, but not reporting in the journalism sense. In 99% of all cases, bloggers are not journalists and they should not be given the rights of someone who holds a press card.

Okay, go to a local newsstand. Pick up a paper, pay the $.50, and open up to the editorial page.

What's the difference between that editorial page and a blog? The format. So saying that "blogging is commentary ... but not reporting in the journalism sense" is bullshit.

Here is the case file online

[steveshaw]

http://dockets.justia.com/docket/court-scdce/case_no-6:2006cv00109/case_id-138245/

It is also available on PACER, which may be more complete, but there is a per-page access fee involved.

Go to the bottom for the Order Granting Summary Judgment.

Herlong is an excellent judge, I'm had a few cases in front of him. Good for the blogger. I hate other attorneys who treat opposing parties like this. It gives us all an even worse name.

Speedy trials

[Harmonious Botch]

The right to a speedy trial is for criminal cases, not civil.

Check out Daily Kos

[coyote-san]

Check out Daily Kos (http://dailykos.com) yesterday. Some idiot 'with a press card' was basically making the same point, and specifically named Markos ('kos') as an example.

Oops. As Markos points out, the critic didn't even bother to click the 'About' button where he would learn that he has an undergraduate degree in journalism, has actually worked as a paid journalist, and oh yeah also has a law degree. He isn't some guy ranting from his mother's basement.

I've seen this pattern countless times. Someone says a "blogger" isn't qualified, yet even a casual examination shows that the blogger is not only highly qualified, they're often more qualified than their would-be critic.

Does this mean that this is true of all bloggers? Of course not. But at this point I think we've clearly crossed the "better to let 20 murderers walk than hang one innocent man" threshold and bloggers should be treated with respect and as bona fide journalists unless they demonstrate otherwise.

Unrelated note: you do realize, don't you, that Fox News has successfully argued in court that it should not be held accountable for factual errors in its reports because it presents 'opinion and commentary', not 'news', programming? Why are they entitled to 'journalist' protection while people with appropriate experience and/or advanced degrees are held up for ridicule?

Re:Check out Daily Kos

[AK Marc]

Unrelated note: you do realize, don't you, that Fox News has successfully argued in court that it should not be held accountable for factual errors in its reports because it presents 'opinion and commentary', not 'news', programming?

Not just factual errors, but known factual errors (the rest of us call them lies). They were given a statement, they checked and found the statement to be false. They used the statement anyway because it sounded better than the truth. They knowingly spread information they believed to be false.

Re:Right!

[Chibi Merrow]

No sex in the champagne room. Sorry.

WWHSTD?

[rs79]

Ah Hunter.

When I worked in the computer graphics industry I used to get comped passes to all the big graphics shows - siggraph, ncga etc. One year they didn't arrive in time so I called up and asked how i get a press pass. They said "bring a letter from your editor".

Now, this was at a time when very few people had laser printers.

So I printed up a letter on "Thompson/Hunter Communications" lettterhead explaining I was a reporter for "bitter reality" magazine.

They took it, hook, line and sinker.

"Bitter reality? I've never seen that"

"It's a Canadian magazine, notice the Toronto address"

"ah yeah, right"

"So is this the weirdest magazine you have here today".

"no. cruise line cuisine is".

I wanna know which of you pricks pulled THAT stunt. I mean come on...

At any rate not only did I get in free, I got access to the press room with free food and drink bit also get $1400 worth of conference preceedings and every book they had without even asking. I had to borrow a hand cart to get them into the trusty Subaru.

Yeah. I love press passes. Hunter was onto a good thing there. And is of course where I got the idea.