by Paul Alan Levy
The process of analyzing for this blog the Ron Paul Campaign Committee’s lawsuit against the anonymous people who created an anti-Huntsman video for this blog impelled me to prepare an amicus brief for the judge who was assigned to the case and had to consider Paul’s ex parte motion for leave to take early discovery to identify the anonymous Internet users who created an attack video savaging the Presidential candidacy of Jon Huntsman while at the same time advocating his election. The brief explains in considerably more detail why the trademark and defamation claims in the lawsuit are frivolous; for example, we analyze the "false advertising" claim which, although not mentioned in my prevous blog post, is even more absurd than the trademark infringement claim. But the brief also explaints some of the dangers posed for the future by this lawsuit.
The Dangerous Implications of Paul’s Lawsuit
In addition to explaining in considerable more detail why the trademark and defamation claims in the lawsuit are frivolous, we point out the dangers posed for the future by this lawsuit. For example – if Paul were to win the lawsuit (or if he were able to use the suit to force the posters to crawl and apologize to avoid the cost of hiring lawyers to defend themselves), the effect would be to encourage future suits like it. After all, candidates often have the problem of having to distance themselves from statements and endorsements from otherwise unpopular supporters. If Paul establishes the proposition that lawsuits like this are permissible, then it won’t be enough for future candidates facing such problems to renounce support – they’ll have file a lawsuit or they won’t “really” be expressing enough disapproval. And that will just insert the courts more deeply into regulating campaign content.
Another problem is that the assault on the Does’ First Amendment rights would not end with enforcement of the subpoena. Although Paul Committee’s initial reaction to the video was to bemoan what some of Paul’s supporters were saying without his authority, and outside his control, more recent statements have asserted that the video must have been put out by the Huntsman campaign itself, or by some other candidate jealous of Mr. Paul’s degree of support among students and conservatives. (There are some claims among conspiracy theorists, for example, here, that evidence suggests that this is what happened). To prove this kind of theory, of course, it will not be enough to know which individuals put out the video. Paul Committee will have to interrogate the defendants about their other political activities, about their campaign contributions, and about their communications with the various supporters of other candidates. This sort of inquisition is not the price that individual Americans should have to pay when they want to express their opinions about candidates for President. And it isn’t what you would expect from a libertarian.
The Brief’s Unusual Procedural Context
It took a bit longer than I had expected to finalize the brief, while taking into account comments from our fellow amici (Digital Media Law Project, Electronic Frontier Foundation and ACLU) not to speak of various voices within Public Citizen. Hours before we were set to file our brief, I got a call from a lawyer from Paul’s campaign (who consent to a motion for leave to file the amicus brief had been requested) telling me that I didn’t have to file the brief anyway because, within the week after the ex parte motion was filed, the magistrate judge had denied the motion.
But after I read the judge’s order, which told the Paul campaign what it needed to show to justify early discovery, I was more determined than ever to file the brief, because the judge’s order actually exemplified one of the problems that our brief was intended to address. The judge had apparently addressed early discovery in the Internet context before, and had issued a ruling that, when a copyright holder sues to identify one of many anonymous users who downloads a copyrighted movie, the plaintiff has to show that its complaint could withstand a motion to dismiss. So she knew that it isn’t enough just to have filed a complaint, and her order in the Ron Paul case denied discovery – the result our amicus brief was about to advocate – but also told the Paul campaign that it could get what it wanted so long as it gave her reason to believe that its complaint could meet a motion to dismiss standard.
This sort of equation of free speech cases with copyright downloading cases was just what another magistrate judge in San Francisco said was the standard in all cases involving copyright. In the Art of Living case, our amicus group succeeded in persuading the district judge in the case that, when the reason for filing the copyright claim is to get back at a critic, the more common Dendrite standard should apply. I suspect would like to think that the judge never looked further than her own earlier decision in deciding to demand a lower level of showing, but the big danger is that her ruling, even though issued without any opposition, will influence other judges because she is the chief magistrate judge for the Northern District of California. And even more important, other lawyers will be emboldened to file ex parte motions to identify anonymous bloggers based on nothing more than a motion to dismiss standard, and they will be able to cite Judge James’ decision as precedent.
In the years before we first created the Dendrite standard to hold plaintiffs seeking to identify their critics to a higher standard, there was a wealth of unquestioned, ex parte precedent establishing a lower standard of proof, and I am not anxious to go back to those days. So, our amicus brief argues not only that the low standard recited by the judge in her opinion is wrong, but that the judge should take steps to ensure that judges in future cases are not misled by deceptive ex parte motion papers into misstating the applicable standard. Invoking a lawyer’s special ethical obligation to be candid about the facts and the law when the lawyer knows that the judge will not have an opposing lawyer to point out the flaws in an ex parte motion, we urge the judge to remind the Paul Campaign’s lawyers -- and by proxy all lawyers seeking ex parte early discovery in future cases -- that they have to cite the applicable cases, even if the lawyers don’t want them followed, so that the judge can decide whether to do so.