by Paul Alan Levy
In a narrow but still important victory for free speech, Chief Magistrate Judge Maria-Elena James of the United States District Court for the Northern District of California has rejected once again the motion of presidential candidate Ron Paul for leave to pursue discovery compelling Google and Twitter to identify the anonymous user or users who created and publicized a YouTube video that trashed then-candidate Jon Huntsman while urging viewers to vote for Paul.
In her ruling last night, released yesterday evening, Judge James has once again refused to allow the discovery, but she did so on narrower grounds that we had urged on her. She decided that Paul’s complaint did not state an adequate claim for trademark infringement because there were insufficient allegations either that the video was commercial or that it was in commercial competition with Paul. A trademark claim, she decided, requires both. And because every standard for identifying anonymous speakers requires at the very least a legally sufficient complaint, Judge James ruled that Paul’s request for discovery was insufficient, and hence she denied it without prejudice to bring renewed.
The decision is a good one, even if she did not call Paul’s lawyers on having come to her ex parte without an honest presentation of the governing law. Implicit in her ruling is, however, the warning that if the Paul campaign amends its complaint to make such allegations and then renews its application for discovery, she will have to choose among standards and hence look at the evidence. Assuming that she follows Dendrite and Highfields Capital v. Does, she will also have an opportunity to address our arguments about the ethical lapses on the part of Paul’s counsel. We can only hope that the Paul campaign concludes that it has done enough to distance itself from this offensive video, not to speak of doing enough damage to free speech, to warrant letting this case go.
Note Excellent coverage of the case by Eric Goldman