January 19, 2012 12:40am PT by Eriq Gardner
Ron Paul vs. Jon Huntsman Attack Video: Is This the Future of Campaign Ads?
The presidential campaign of Ron Paul has filed a federal lawsuit against anonymous individuals who uploaded a video to the Internet attacking former presidential contender Jon Huntsman. The video in question purported to come from New Hampshire supporters of Paul and suggested that Huntsman, a former U.S. ambassador to China, was a "Manchurian Candidate." Paul is suing for defamation, false advertising and false designation of origin in violation of the Lanham Act in what could be an interesting lawsuit to follow.
TV attack ads are not unusual in electorial politics. But the commercial (below) was particularly nasty, leading Huntsman to address the video on the New Hampshire stump last week. "If someone wants to poke fun at me, that's OK," he said. "What I object to is bringing forward pictures and videos of my adopted daughters and suggesting there's something sinister there."
Paul also came out against the ad and bristled at suggestions that anybody in his campaign was behind it.
Some have made the suggestion that the attack ad was a "false flag," put up by Huntsman's campaign itself in order to gather sympathy, a conspiracy theory that's gained steam upon word that the first referral to the video came from jon2012.com, the website of the Huntsman campaign.
No matter who was behind it, Paul has filed a suit that says, "This is a classic case of dirty politics resulting in the unlawful use in commerce of an underhanded and deceptive advertisement designed to tarnish Plaintiff's reputation, to interfere with its consulting and information dissemination services, and to hinder its efforts to raise funds for and promote Dr. Ron Paul's candidacy for President of the United States."
The lawsuit raises many curiosities. Here's our big questions and some insight from Rebecca Tushnet, a Georgetown University law professor who writes a blog about false advertising:
- Jurisdictional: Why has Paul, the libertarian candidate from Texas who wants to return power back to the states, chosen a federal court in San Francisco to pursue a video that purports to come from New Hampshire?
"Normally, defamation claims are usually brought in the state a plaintiff resides or has a valid interest," says Tushnet. "In theory, you can sue wherever you experience harm."
Tushnet speculates that Paul brought the lawsuit in San Francisco in the interest of serving a subpoena on Bay Area-based Google to identify who uploaded the video to YouTube.
- The Lanham Act: Do political candidates have the ability to exploit a provision of trademark law to shut down statements made by others that creates a false and misleading suggestion of an endorsement?
"The question (of using false advertising laws to shut down speech) is coming up again and again these days," says Tushnet. "Sometimes, you don't like the friends you have. Although trademark owners don't like that, I think in a free society, it's hard to argue that saying that you like me creates the appearance of a false endorsement from me."
Tushnet adds that Paul's complaint lacks a solid argument that there was commercial activity involved. Political campaigns aren't corporations and usually don't hold trademarks, after all.
"Perhaps if he's soliciting money for himself, then there's a reasonable case that he shouldn't be doing that," says Tushnet. "But if he's asking for money to be sent to Ron Paul, or not soliciting anything but the idea that you shouldn't vote for the other guy, that's not a commercial advertisement in the traditional sense."
- Defamation: In an era where nasty campaign advertisements fly, what's the liabilty for making false statements with malice? And if dirty tricks are involved, does misrepresenting the speaker of a statement constitute injury?
To the latter question, Tushnet says she isn't sure. (This is one of the reasons why this case is fascinating.)
But Tushnet does caution that in defamation cases, "the fact that it has not come up before is usually bad for plaintiffs as courts are usually leery about extending the law to unprecedented claims."
Here's the video in question: