Back in January, we wrote about the bizarre decision by Ron Paul to file a lawsuit to unmask some anonymous internet users, who had created a controversial anti-John Huntsman video. At the end of the video, the anonymous videomakers had endorsed Paul, but some conspiracy-minded folks insisted that they were really working for Huntsman and staging an elaborate ruse to put up a video that looked bad about Huntsman to have that backfire on Ron Paul. For a variety of reasons that's either improbable or just downright stupid. But even if we assume the worst case scenario, Ron Paul's lawsuit not only made absolutely no legal sense, but it also seemed to go against nearly everything he believed in concerning internet freedom and the overreaching power of the government.
Either way, a judge has rejected Paul's attempt to unmask the videomakers on the narrow grounds that he failed to state a legitimate claim, since the video was not commercial in nature (necessary for a trademark violation). The judge did not go so far as to get into the First Amendment issues, but made clear that if Paul comes back with an amended suit with an actual claim, then the First Amendment considerations will be covered. Kudos to Paul Levy at Public Citizen for filing a pair of amicus briefs in the case to make sure the judge was aware of what was happening -- and hitting back at Paul's camp for its initial filing that completely ignored the relevant law and legal standards for unmasking anonymous internet users.
There are a number of especially troubling items in terms of how Paul and his camp went about this. First, just trying to unmask anonymous internet speech seems extremely problematic. Second, however, is the way in which he tried to twist trademark law to do so. As Eric Goldman explains, Paul's attempts to route around the clear requirements of trademark law were especially mockable:
To try to salvage the situation, Paul tries two mockable arguments. First, he argues that YouTube and Twitter are commercial sites, and that gives the dispute enough commerciality. The court rightly points out that the inquiry is about the defendant's conduct, not the websites where it took place, and notes the argument's illogic would mean non-commercial activity on any commercial website would be governed by the Lanham Act. In a footnote, the court adds that "using another company’s commercial website to post a comment or video is just far 'too attenuated' to result in an individual’s own conduct automatically meeting the Lanham Act’s commercial use requirement."
Second, Paul argues that "the video was intended to frustrate Plaintiff’s fundraising efforts and increase the amount of money contributed to Presidential nominees other than Ron Paul." The court says the Lanham Act is predicated on the defendant trying to improve its competitive status, and these defendants had no competing services; and the video on its face didn't try to solicit any donations.
Anonymous speech is protected under the First Amendment, and abusing trademark law to try to unmask anonymous speakers, whose speech was not commercial, is clearly an abuse of the law to try to "out" people online. As some have noted, it appeared to go against Ron Paul's own key principles -- and whether you agree with him or not, Paul certainly has the reputation for standing up for his principles. Yet here, suddenly, all of that went out the window:
What continues to amaze me, though, is how Paul is getting a free pass for this assault on free speech. Mitt Romney and Rick Santorum haven't filed lawsuits over identical videos that use their names in attacking Huntsman; why is Ron Paul the only candidate who filed such a suit? Indeed, so far as I have been able to discover, he is the only serious candidate for President in the past few decades who has ever filed a libel suit, and there are certainly Presidential candidates who have suffered far worse attacks. (I am not thinking of candidates who sued longer ago, but fifty years takes us back to the beginning of First Amendment protection against libel litigation brought by public figures). Why aren't the reporters who follow him around on the campaign trail not asking him how he can justify his use of litigation to oppress his critics and how it is consistent with the principles of liberty for which he claims to stand? How is this consistent with his First-Amendment based assault on campaign finance regulation such as McCain-Feingold? Does he just want to substitute the courts and privately financed litigation for the FEC?
Also surprising to me, is that even Paul's very vocal online supporters seem to refuse to recognize the issue here. I was amazed on our original post how many commenters came to Paul's defense here because they think that the videos were designed to make Paul look bad, and therefore the people "must" be revealed. That's not how the law works and that's not standing up for the basic principles of free speech, internet freedom and liberty that they supposedly stand for.
The sign of a truly principled person is when you're willing to retain those principles in the face of a situation where standing firm hurts you. Instead, Ron Paul folded and suddenly relied on big federal government regulations and abuse of the law to try to take away individuals' free speech rights.
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