Ron Paul Should Know Better Than to Sue Anonymous Speakers for Political Speech

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 Spurious Legal Claims

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.

Update

Just noticed this comment by Rebecca Tushnet, who called my attention to the lawsuit.

Another update

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.

Comments

[Bruce van der Kooij]

@Paul: Thanks for your response.

I've been skimming the amicus brief you filed and overall I commend you for your position, both from a legal perspective and a civil liberties one (though I reserve the right to take this compliment back). However, I am rather disappointed that in the brief you linked to a rather negative Techdirt article 'What Is Ron Paul Thinking? Sues To Unmask Anonymous Internet Users' by Mike Masnick in the context of showing the judges the video in its original context. I feel that was totally uncalled for (you could have stuck to simply linking to the video itself).

The fact that Mike can't even phantom why the Ron Paul campaign would do this (the reasons for which you alluded to in your post above) and in my opinion completely understates the negative impact[1] the video had on Ron Paul demonstrates he just doesn't get it (including saying that if anybody should be suing for defamation, it should be Huntsman).

Mark Eiglarsh (who, though irrelevant, is a criminal defense lawyer by trade) puts it quite elegantly in his appearance on Fox News's Kelly's Court: "I think everyone is missing the point here, the ad is so unbelievable outrageous that nobody then thinks Huntsman looks bad. The person who's making the ad looks bad, so whoever made it and gave Ron Paul the erroneous credit for it, they're doing Ron Paul the harm here." http://www.youtube.com/watch?v=0b5x5gZFyRw&feature=player_embedded

Footnotes:

[1] Though I admit that evaluating the amount of negative impact would require quite some extra effort

[Paul Levy]

Bruce, thank you for this thoughtful comment. On Friday afternoon, Public Citizen joined several other civil liberties groups in an amicus brief (I was the principal author) discussing what standard the court ought to use to decide whether to allow early discovery; that brief further illuminates the folly of Paul's lawsuit. I am agnostic on the question whether the poster was a Paul supporter; the brief points out that the answer to the question is irrelevant to determining whether Paul has any right to sue and any right to invoke court process to compel the identification of the videographer.

I have not had the time to blog further in light of the thinking that it took to produce that brief, because I have spent the last 24 hours writing a brief in another case. But I hope to publish another discussion of the issue before the weekend is out.

[Bruce van der Kooij]

Correction: the event was not a press conference, but a town hall meeting broadcast on C-SPAN. Jon Huntman's comment was about the video was in response to a question from the audience.

[Bruce van der Kooij]

@Jackson: What frustrates me about this whole thing is that posting a video anonymously on the web under an account named "NHLiberty4Paul" and ending with the text "Vote Ron Paul" was apparently enough for a lot of folks ("journalists", pundits, columnists, bloggers and what not) to conclude that the video was produced by a group or individual supporting "Ron Paul". Mostly because Huntsman himself decided to make a big deal out of it by, among other things, denouncing the video during a press conference http://www.youtube.com/watch?v=QQk1xAPRJHU (referring to it as "the Ron Paul video"). Even Levy in his article above does nothing to counter this assumption (on the contrary, reading trough the lines it seems he's likely convinced that it was the work of a person supporting Ron Paul).

There's no concrete evidence what so ever that this video was produced by somebody who supports Ron Paul, on the other hand, there is however quite a bit of indirect evidence to believe otherwise. The author of the blog The End Run did a pretty good job writing about it http://www.theendrun.com/the-china-jon-huntsman-fraud-deconstructed.

I don't agree with the campaign taking this to court, but I do understand the motivations behind it. They really do want to find out who did it.

Regretfully, I doubt we'll ever find out who produced the video. But whoever it was, for me personally Jon Huntsman's behavior (and that of his daughters) with regards the situation was utterly disgusting. With their help Ron Paul was indirectly made to look bad. Even though Paul himself had earlier in the campaign complimented Huntsman on the Jay Leno show ("He's a nice person and he's a good diplomat. He knows what diplomacy is all about and he's a thoughtful person") https://www.youtube.com/watch?feature=player_detailpage&v=I6x5oz4HP5s#t=1055s.

[jackson]

Nicholas, let me guess... Ron Paul supporter? I keep hearing people say that the Jon Huntsman team were behind it but have seen no actual proof.

Before you refer to the "referral link..." I have a twitter account. If someone posted a video about me on YouTube, then tweeted about it using my #tag, I would get an email notifying me of their tweet. If I clicked on it, and used a webmail address that identified me, that would make the video my fault?

I hope Public Citizen DOES file an amicus brief. I'd love to hear Ron Paul's response to that.

[nicholas]

hes ordered the identity request because Jon Huntsman team were the ones who created the hit piece