Will Glenn Beck Sue a Defamatory Website in 2009?

Even though Glenn Beck has a prime spot on cable television to offer up his beliefs, it's sometimes quite hard to understand what his beliefs actually are.  For example, as Jon Stewart has pointed out, he believes we have the best healthcare in the world, except when he says it's a nightmare.  Or as Politico underscored, he believes that President Obama is a racist, but he doesn't believe that Obama doesn't like white people.

But if there's one thing Beck believes, it's that he didn't rape and murder a young girl in 1990.  And he's siccing his lawyers on a website that asks him — with tongue firmly placed in its virtual cheek — to deny it.

Of course, no one really believes that Beck raped and murdered a young girl in 1990.  It's just an Internet meme that came into being on Fark.com recently, imitating Beck's habit of "making a totally bogus rumor into 'news' by stating it, and wondering why there hasn't been a denial," as Mike Masnick puts it.  (If you're wondering, the premise of the rape and murder charge actually comes from a Gilbert Gottfried bit during a roast of Bob Saget.  Go figure.)  According to Mediaite, the Farkers took the meme and plastered it all over the web, including for good measure a variation of Googlebombing, so that Google would suggest "Glenn Beck murder" and other similar searches as alternatives to searches for "Glenn Beck."  (Google appears to have since corrected this, however.)

So far, it's all just typical, completely uncontrollable Internet chatter.  But one anonymous fellow took it a step farther, and set up glennbeckrapedandmurderedayounggirlin1990.com.  And that's when Glenn Beck's lawyers got involved, claiming that the website is defamatory and demanding that it be shut down and its webmaster's identity be revealed.  (Although the website has links that are supposed to show the legal info, as of the time of writing, they didn't work for us.  Fortunately, the folks at Gawker have an image of the takedown letter available.)

Now, the website's content makes no direct claim that Glenn Beck raped and murdered anyone.  In fact, its author writes in an intentionally Beckian fashion that:

We're not accusing Glenn Beck of raping and murdering a young girl in 1990 - in fact, we think he didn't! But we can't help but wonder, since he has failed to deny these horrible allegations. Why won't he deny that he raped and killed a young girl in 1990?

But Beck has a pretty good claim that the domain name itself is defamatory - so says Paul Levy of Public Citizen, writes Ars Technica:

Certainly, domain names alone "can be defamatory," Levy says, pointing out that the first iteration of the site posed the "rape and murder" claim as a statement—not as a question.

Levy says that such a statement is only actionable if 1) it's false (and we're quite sure it is) and 2) it was stated with actual malice. That last bit could be tricky to prove, especially in a case involving an anonymous speaker, but Levy makes clear that the site might well be on the wrong side of a very fine line.

"I don't think 'Ha ha it's a joke' at the end gets you off," he says; if the parodic information is defamatory, it's risky for the defendant in such cases. That's complicated by the fact that the original domain name made the allegedly defamatory claim against Beck—and of course no one stumbling across the site in a search engine or elsewhere would see any disclaimer. In such cases, the domain name itself is a standalone piece of content; the disclaimer may help regarding the website content, but it won't necessarily transfer a cone of protection to the domain name as well.

Ars Technica also quotes Corynne McSherry of the Electronic Frontier Foundation, who is more dubious that the site's name is defamatory: "I'm not sure of any case where someone has claimed that a domain name was defamatory," she says, adding that "the site is 'pure political criticism and there's nothing wrong with that.'"

While McSherry is right about political criticism in general, we tend to agree with Levy that the case is not straightforward.  The domain name's statement is — on its face, at least — factual in nature and pretty obviously false, and there is no guarantee that someone who sees the domain name in search results would follow the link and see the joke. In deciding whether the statement is capable of defamatory meaning, or conversely non-actionable opinion, a court would have to look at it in context, and it's not clear how a court would characterize the appropriate context in this situation.  Should the domain name be viewed in conjunction with the entire site, which makes its parodic and political thrust more apparent?  Or should it be viewed as the snippet you might see in a Google search?

Moreover, even when you're on the website, it's not 100% clear that defamation law's mythic "reasonable reader" would understand the joke.  There are lots of cases finding a parody or satire to be a non-actionable statement of opinion because no reasonable reader would view it as conveying factual information about the plaintiff.  See, e.g., New Times v. Isaaks, 146 S.W.3d 144, 157-61 (Tex. 2004) (holding that a newspaper article was non-actionable opinion because "a reasonable reader could only conclude that the article was satirical," noting the article's improbable quotes, intentionally irreverent tone, and other "obvious clues"); San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 660-62 (Cal. Ct. App. 1993) (letter to the editor in April Fool's Day edition of newspaper which suggested that a landlord gave his tenants shock therapy was not actionable because "the average reader would recognize [it] as a parody");  Walko v. Kean College, 561 A.2d 680, 683 (N.J. Super. Ct. Law Div. 1988) ("A parody or spoof that no reasonable person would read as a factual statement, or as anything other than a joke — albeit a bad joke — cannot be actionable as defamation"; phony ad suggesting that college administrator was available for "good phone sex" not actionable).  But none of these cases seems exactly on point here, and Beck's lawyers have a nontrivial argument that your average reader who isn't familiar with his rhetorical style or who simply doesn't share the parodist's view of his politics might not see the gag. 

This may not be a particularly good argument given that "the appropriate inquiry is objective, not subjective," and "the question is not whether some actual readers [are] mislead, as they inevitably will be, but whether the hypothetical reasonable reader could be."  New Times, 146 S.W.3d at 157 (also noting that the reasonable reader "is no dullard"). The video clip embedded at the top of the webpage should probably clear things up for all but the thickest skulls, but then again we don't know whether the reasonable reader takes the time to watch videos or not.  (The video, under the caption "A Plea for Help" and title "Don't Leave Glenn Beck Alone!!!!!," features a mock-crying woman saying, among other things, "everytime people stop teasing him [Glenn Beck], and ridiculing him, and making fun of him, and laughing and pointing and staring at him, a baby ghost gets turned into a human being. Do you want that to happen?")  The website's disclaimer might also clear things up for our fair reader, except that it's regrettably small, placed at the bottom of the page, and itself partakes of the sort of double-speak that characterizes the site overall:

Notice: This site is parody/satire. We assume Glenn Beck did not rape and murder a young girl in 1990, although we haven't yet seen proof that he didn't. But we think Glenn Beck definitely uses tactics like this to spread lies and misinformation.

In the end, the parodist could be in hot water if the case ever got to court and the judge felt a tad bewildered by the inside-jokey Internet meme and fancied himself/herself a good bit more sophisticated than the hypothetical reasonable reader.

(Thanks to section 230 of the Communications Decency Act, the site's webhost and domain registrar are completely protected from potential defamation claims because they had no role in its creation or development.)

Predictably, defamation is not Beck's only axe to grind.  His lawyers also filed an action with WIPO under the Uniform Domain Name Dispute Resolution Policy (UDRP), claiming that the website is improperly using his trademarked name (apparently his trademark application is pending).  Here, we can agree with both Levy and McSherry when they say the trademark claim is "preposterous."  While these WIPO proceedings aren't always consistent with U.S. law, any award is reviewable in federal court, and U.S. trademark law generally recognizes that use of a trademark in non-commercial, critical speech of this nature rarely amounts to the "bad faith" required for a successful cybersquatting claim. See, e.g.Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005) (gripe site operator did not have a bad faith intent to profit when he used the website in question to criticize the social and religious views of the Reverend Jerry Falwell);  TMI Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004) (gripe site operator did not act in bad faith when using website to engage in consumer commentary and criticism rather than for commercial gain);  Lucas Nursery & Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004) (same); see also Taubman v. Webfeats, 319 F.3d 770 (6th Cir. 2003) (ruling "taubmansucks.com" was "purely an exhibition of Free Speech, and [federal trademark law] is not invoked");  Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998) (ruling defendant's use of "ballysucks" in a sub-domain for a website engaging in critical commentary did not constitute trademark infringement or dilution).

Of course, as Gawker notes, Beck is only making matters worse for himself by threatening legal action against the website.  Before, it was just another idiot meme among the oceans of idiot memes online.  Now, it's creeping through the blogosphere toward the mainstream news.  It's easy to imagine The Daily Show or The Colbert Report picking up this story when they come back from vacation.  And if the meme's promoters start calling in to Glenn Beck's show, demanding proof that he didn't rape and murder anyone . . . well, someone in the big news networks will notice.  And Beck will be wishing he never called his lawyers in.  Believe it.

Update:  glennbeckrapedandmurderedayounggirlin1990.com has added a prominent disclaimer at the top of its page — "Notice: This website is 100% parody" with a link to the disclaimer at the bottom.  It has also added the following to the disclaimer:

Read the last sentence again. That's the point. Read it a third time and ignore the name of the site itself, because anyone who believes that we're trying to actually get people to believe Glenn Beck raped and/or murdered is *whoosh* missing the entire point. So don't be dumb like a lot of people are. I greatly expanded this text because so many people *read* it, and *still* didn't understand.

(Arthur Bright and Sam Bayard contributed to this post. Arthur is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)

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