by Paul Alan Levy
In a remarkably dishonest filing yesterday in support of a new lawsuit, Republican presidential candidate Ron Paul has asked the federal district court in San Francisco to order expedited discovery to identify an anonymous videographer who advocated his election through a video pillorying opposing candidate Jon Huntsman for his connections to China.
In a complaint filed a few days ago, Paul alleged that the video both infringed his trademark and defamed him by improperly implying that he was behind the campaign video. The complaint seeks damages and injunctive relief, not just compelling removal of the video, but preventing the defendants from ever using Paul’s name in any material in the future, regardless of whether the use implies Paul’s endorsement (relief paragraph 6). This complaint is utter nonsense, in several respects.
The complaint is subject to dismissal on its face because alleges a trademark claim over an entirely noncommercial video despite the express holding in Bosley Medical v. Kremer forbidding trademark claims against Internet communications that do not sell or advertise goods or services. Bosley is a Ninth Circuit decision and hence binding in Northern California, and several other courts around the country have said the same thing. The trademark claims are also factually nonsensical because nothing in the video suggests that Ron Paul sponsors the video. To be sure, the video advocates Paul’s election, but it is well known that candidates often have supporters whose campaign activities are entirely independent of candidates themselves. By the same token, the complaint asserts that the use of the pseudonym NHLiberty4Paul implies that he sponsors the video, but again that is silly. The pseudonym suggests only that the makers support Paul’s candidacy, and like any other candidate Paul has no right to control who supports him and what they say in expressing that support. Paul’s campaign itself understood this fact because its immediate reaction to the video was to note that every campaign has supporters who do obnoxious things.
The video is surely offensive: it attacks Huntsman, among other things, over his fluency in Mandarin and his having Chinese daughters, and even questions whether he really adopted them. Paul is right to have been sickened by the fact that the video makers were taking on Huntsman's family in this way. Paul alleges that, by falsely implying that he sponsors the video, the video defames him.
Of course, if the trademark claim is found wanting, the defamation claim fails on the merits for the same reason, but it also fails because there is no basis for federal court jurisdiction in the case. After all, defamation is a state law claim and Doe defendants cannot be sued in diversity because their citizenship is unknown. Sadly, district judges in Northern California seem particularly prone to miss this point in granting ex parte motions, as we learned in Bank Julius Baer v. Wikileaks and Rocky Mountain Bank v. Google.
The Duty to Make a Showing of Merit Before Breaching the Right to Speak Anonymously
Bosley is not the only relevant case that Paul’s motion for the motion for expedited discovery fails to call to the court’s attention. As we have often discussed on this blog, the First Amendment protects the right to speak anonymously, and the national consensus rule, often known as the Dendrite rule after Dendrite International v. Doe, the first appellate case to enunciate the principle, erected a multi-step test that requires the plaintiff to provide notice to the Doe defendants so that they can defend their right to speak anonymously, and to make a factual and legal showing that the case has merit. In several separate cases over the past few years, including Highfields Capital Management v. Does and Art of Living Foundation v. Does, this very federal district court has endorsed the Dendrite standard for the identification of anonymous Internet speakers who are alleged to have defamed the plaintiff or violated its trademark through impersonation, the very sort of claim that Paul advances in this case. The Court of Appeals for the Ninth Circuit implied acceptance of such a requirement in cases of non-commercial speech in another case, In re Anonymous Online Speakers.
But Paul’s campaign has done nothing to meet this test, and its motion papers seem to me to go out of their way to hide the existence of the requirement from the court. Indeed, as has become typical in motions filed by some dishonest lawyers in such cases, the motion for early discovery cites general authority for early discovery without deigning to mention a single one of the many cases, including cases from the federal courts in California, that requires a preliminary showing that the lawsuit has merit. The motion for early discovery cites the Federal Rule 26 “good cause” standard as being all that stands in the way of discovery, citing a series of reported decisions allowing discovery where no speech is at issue, and then a series of unreported decisions in mass downloading cases that approved motions for expedited discovery. Because these decisions are unreported, the motion actually has to attach them so that the judge can see them. But it completely ignores the reported decisions in the very jurisdiction that invoke the Dendrite line of authority. When lawyers are appearing before a judge ex parte, they have an especial ethical obligation to call contrary authority to the court’s attention. It is certainly disappointing that Paul’s lawyers with the firm of Arent Fox have failed to even mention Bosley, Art of Living, Highfields and other cases that might lead the court to deny expedited discovery.
Because Paul has brought an ex parte motion, there is nobody to call this authority to the court’s attention. Consequently, we are considering whether to file an amicus brief doing just that. We may well suggest to the judge in the case that she reprimand Paul’s lawyers for filing an ex parte brief that withholds relevant authority. In Career Agents Network v. careeragentsnetwork.biz, the withholding of relevant Sixth Circuit authority protecting the gripe site owner from the ex parte motion for early discovery was part of the reason why the Court awarded attorney fees after the trademark suit was dismissed.
Has Paul Filed Suit Just to Make a Public Showing of His Displeasure?
Ron Paul has campaigned on a libertarian platform, and he has articulated a number of important civil liberties points, such as the incursions on our liberties by the mislabeled “PATRIOT” Act. In short, here is a political figure who should know better. But in many cases it seems as if political figures and others conclude that the only way they can show that they really deny accusations that have been made against them is to file a libel suit.
I do not doubt that Paul has suffered abuse at the hands of his electoral adversaries over this video, condemning him for the actions of putative supporters, and perhaps he has concluded that the best way to show his disapproval of the video its to sue its makers. But if Paul sets a new standard, that the only way you can distance yourself from obnoxious statements by your putative supporters is to sue them on trademark and defamation grounds, on the theory that they have unlawfully associated you with their obnoxious views, Paul will have done serious damage to liberty that his candidacy has claimed to further.
We can hope that Paul suffers in the political arena for this lawsuit, as well as facing a California anti-SLAPP motion over the defamation claims in his suit. If the federal anti-SLAPP stattute is adopted, the trademark claims too would be subject to early dismissal as a SLAPP.
Just noticed this comment by Rebecca Tushnet, who called my attention to the lawsuit.
We filed an amicus brief explaining to the judge in the case both the proper standard for deciding whether to allow discovery to identify anonymous Internet speakers, and why the lawsuit is frivolous on its face.