“Saint” Paul - Fordham Intellectual Property, Media & Entertainment Law Journal
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“Saint” Paul

“Saint” Paul

Recently, a YouTube video attacking ex-presidential contender Jon Huntsmen surfaced on the Internet.  The insulting footage refers to Huntsmen as the “Manchurian Candidate,” while playing “Chinese style” music in the background; it shows Huntsmen doing Chinese activities (speaking Chinese, interviewing with the chinese media…) and asks whether the candidate’s true country of allegiance is the United States or China.  The clip further proceeds to display a terribly doctored photo of Huntsmen wearing Maoist military garb and trashes Huntsmen for being a Mormon.  The final scene of the video instructs voters seeking American values and liberty to vote for Ron Paul.

While attack ads are quite common in politics, Huntsmen was particularly offended by this one, because the ad used pictures of Huntsmen’s adopted children to argue that Huntsmen does not hold American values.  In addressing the video, Huntsmen said, “[i]f someone wants to poke fun at me, that’s OK. . .[But] what I object to is bringing forward pictures and videos of my adopted daughters and suggesting there’s something sinister there.”

While everyone agrees that this video was tactless and offensive, the lingering question is: who is behind this distasteful advertisement?

The obvious initial reaction was to place the blame on Ron Paul’s campaign team.  The clip’s final segment endorsed Paul and the video was uploaded on a YouTube account called “New Hampshire Liberty 4 Paul.”  However, that evidence alone does not incriminate Paul.  There is nothing actually linking the account to Paul’s campaign team and further, the “NH Liberty 4 Paul” YouTube account only contains this one uploaded video, which makes it seem like a farce.  Even though Paul’s campaign team has started up with Huntsmen before, they maintain that they have never done anything this offensive.  Putting to bed any remaining doubts as to whether Paul’s campaign was the originator of this ad, Paul’s team filed a defamation and trademark lawsuit against the party who uploaded the unauthorized attack video.

But the suit is unlikely to succeed for several reasons.  The suit alleges false advertising and false designation of origin under the Lanham Act.  The Lanham Act applies to “commercial advertising or promotion” and there seems to be no indication of sale of goods or self-promotion.  Additionally, it is very hard to demonstrate that the advertisement actually defames Paul.  Paul’s legal team must be able to prove that this video alone caused a public change in opinion of Ron Paul.  Proving an opinion-shift about a public figure such as Ron Paul is highly difficult and thus unlikely.

Not only is this suit destined to fail, it also is just kind of odd.  Since the identity of the uploader is unknown, this suit is a “John Doe” suit, where the plaintiff adds the defendant when the identity is revealed, even if it is after the suit is filed.  The defendant is usually identified through a subpoena of on an Internet Service Provider (ISP).  What makes this suit so weird is that Paul is a libertarian, primarily interested in individual liberties and freedom from government.  But forcing an ISP to disclose the identity of a client definitely infringes on the ISP and its users’ right of privacy.  Therefore, John Doe proceedings are not in-line with Paul’s main beliefs.

While the lawsuit is weak and strange, it still does make it quite clear that Ron Paul’s campaign is not the party behind the video.  So our original question remains: who is responsible?

Some Paul supporters have accused Huntsmen’s own campaign team of uploading the video themselves and using it as a tactic to invoke sympathy.  These Paul supporters support their position with an image showing that the first link to the video was at Huntsmen’s campaign site, jon2012.com.  However, that is no proof at all, as anyone with a computer programming degree can arrange for such an image.  Plus it would be quite the sleazy political move if Huntsmen were jeopardizing his family merely to inject sympathy into a dying campaign.  It is highly unlikely that that is the case.

So, with few other options of potential culprits, it appears most likely that the video was posted by a Paul or Huntsmen supporter, (for the reasons mentioned above), not associated with either candidate’s official campaign.

While Paul’s lawsuit is unlikely to have any legal effect, the publicity resulting from the suit helps exhibit the disapproval for prejudice existing in our current society.  The Internet’s reaction to the content of this video reveals that Americans do not endorse racism.  On the YouTube page of the video clip, there were over 5,000 dislikes compared to fewer than 200 likes.  Most blogs and reports of the ordeal have denounced the video as “tactless” or “offensive” or described it in some other negative light – no one has applauded the bigotry.

Consequently, Paul’s ‘losing’ suit is a real winner.

UPDATE: Paul’s request to unmask the identities of the video uploader has been denied.

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Andrew Eisenberg