At the beginning of the year, a Twitter and YouTube user with the screen name NHLiberty4Paul uploaded an attack ad on former Republican presidential candidate Jon Huntsman.
The clip, titled “Jon Huntsman's values,” intersperses questions like “Weak on China? Wonder Why?” and “What's he hiding?” with video footage of the ex-U.S. Ambassador to China candidate speaking Chinese. The ad ends with a screen asking people to support presidential hopeful Ron Paul.
Paul, who is famous for his libertarian views, quickly disavowed the clip. His campaign also filed a federal lawsuit alleging that NHLiberty4Paul infringed Paul's trademark, engaged in false advertising, and defamed Paul by portraying him as “unscrupulous, xenophobic and underhanded.” Paul's campaign sought an expedited court order unmasking NHLiberty4Paul.
Late last month, U.S. Magistrate Judge Maria-Elena James in the Northern District of California rejected Paul's request to obtain information about the Web user on an expedited basis. But James' ruling was without prejudice, which left the campaign free to try again.
Soon after James issued her order, a coalition of digital rights groups led by Public Citizen filed a friend-of-the-court brief arguing that NHLiberty4Paul is entitled to remain anonymous.
Public Citizen and the other groups argue that the Paul campaign shouldn't be able to draw on trademark law -- which allows entities to prevent the commercial use of their names -- to suppress political ads. "The video simply expresses views about the merits of two candidacies --Huntsman’s and Paul’s. That is simply not commercial speech," they say. "A candidate has no monopoly on the right to advocate his own election; nor can he limit that right to his official campaign committee."
The organizations additionally argue that the clip isn't defamatory, noting that the ad doesn't state or imply that it was produced by Paul or his campaign. "Polling data, not to speak of votes already cast in Iowa, New Hampshire and South Carolina, suggest that there are thousands of Americans apart from Ron Paul and his official committee who harbor the opinion that voters should support Mr. Paul; consequently, the mere expression of the opinion does not imply that it is Ron Paul or his campaign that is speaking," they argue.
"In the end, Paul Committee has no way of knowing whether this video was issued by a Paul supporter with bad judgment, by a Huntsman supporter hoping to use reverse psychology to gain sympathy for his candidate, or by a supporter of neither candidate who might want to criticize both candidates or to make a satirical point about negative advertising. Whatever the underlying motive of the video maker and poster, plaintiff has no right to state power to obtain subpoenas to identify the videographer and ascertain her motives," the groups say.
Paul's camp disagrees. This week, the candidate filed papers fleshing out its argument for unmasking the clip's creator. The campaign argues that NHLiberty4Paul uses the name Ron Paul "in a manner that is calculated to defame and discredit" the candidate. "It is one thing to anonymously criticize a politician's views," the campaign argues. "It is an entirely different matter to impersonate a politician or his campaign committee, as defendants have done here, and to use the committee's name and mark to falsely represent the source of the criticism in a way that creates a likelihood of confusion or actual confusion among members of the public."