Rape, Murder, Rumor, and Rhetoric: The Strange Case of Glenn Beck, Part 1

(Note: This post is the first in a three-part series exploring First Amendment issues, trademark disputes, and certain rights of celebrities and public figures.  Part 2 is here and Part 3 is here.  We wish to stress to our readers that this article is in no way meant to endorse or oppose any political view.)

It is not often we can pinpoint the precise moment an urban legend is born.  However, this one is different.  At 8:32 PM on August 31, 2009, someone going by the username “oldweewil” posted these words on Fark.com: “Why haven’t we had an official response to the rumor that Glenn Beck raped and murdered a girl in 1990?”  This comment was the beginning of what is fast becoming a legal fiasco.

The fact that someone posted an utterly ridiculous comment on a website is nothing new.  Obama is a Muslim, Bush planned 9/11, and TBTS is actually a front organization for the CIA.  However, some people recognized this “raped and murdered a girl in 1990” post as part of a Comedy Central roast of Bob Saget, in which Gilbert Gottfried recounts the previously unknown rumor that Saget “raped and killed a girl in 1990.”  Gottfried repeats the accusation several times with increasing emphasis, then tells the audience that they should not spread the false rumor (which did not exist until Gottfried told them about it) unless they have evidence, in which case they should stop gossiping and take that evidence to the police.

Spinning the joke to make Glenn Beck the one responsible for raping and murdering a girl in 1990 was a response to what some say is Beck’s rhetorical style of presenting controversial issues.  He presents a “rumor,” suggests that he does not believe the rumor but then repeats the rumor over and over, saying that the target of the rumor can get people to stop spreading it by simply presenting evidence of the rumor’s falsity.  The frequently noted example is from a 2006 interview with Keith Ellison, a Muslim Congressman:

No offense, and I know Muslims.  I like Muslims.  I’ve been to mosques.  I really don’t believe that Islam is a religion of evil.  [Y]ou know, I think it’s being hijacked, quite frankly.  With that being said, you are a Democrat.  You are saying, “Let’s cut and run” [from Iraq].  And I have to tell you, I have been nervous about this interview with you, because what I feel like saying is, “Sir, prove to me that you are not working with our enemies.” And I know you’re not.  I’m not accusing you of being an enemy, but that’s the way I feel, and I think a lot of Americans will feel that way.

Perhaps because it was such an inventive way to criticize Beck’s style, the “raped and murdered” story spread through the Internet with shocking speed.  Within hours of the original Fark.com post, the verb “Glennbeck” was added to urbandictionary.com, meaning “To rape and murder someone (especially a young girl in 1990).”  The following day, someone posted a “question” on Yahoo! Answers:  “In the last few days I’ve heard all over the internet that Glenn Beck raped and murdered a girl in 1990.  This sounds like a lie but he hasn’t denied it or even commented on it even once, Snopes.com has no articles debunking it, and people are talking about it all over the place.  Is there any [truth] to this rumor that Glenn Beck raped and murdered a girl in 1990?”

Most of those who posted responses played along, with this being the selected best answer:  “Look, I don’t know if it’s true that Glenn Beck raped and murdered a girl in 1990, but if it isn’t, Glenn Beck, alleged 1990 murderer and rapist, should produce the girl he didn’t rape and murder in 1990 so that this matter can be cleared up.  All we want is proof.  What is he trying to hide?***Oh, and when he produces the girl he allegedly did or didn’t rape and murder in 1990, it won’t be accepted unless she’s in the long form.”

It was all fun and games, however, until Isaac Eiland-Hall registered the domain name glennbeckrapedandmurderedayounggirlin1990.com.  We’ll call it the R&M domain.

Beck Didn’t Get the Joke

It only took until September 3, 2009, three days after the initial Fark.com post and two days after the R&M domain was registered, for Beck’s attorneys to contact the registrar of the R&M domain and demand that the site be removed.  Twenty-four hours later, Beck’s attorneys filed an ICANN complaint through the World Intellectual Property Organization (WIPO) to have the domain name turned over to Beck.

ICANN, or Internet Corporation for Assigned Named and Numbers, is the international governing body for domain names.  Because the Internet is not limited to geographic boundaries, the only way to effectively control the administration of domain names is with an international organization.  One of the ways that ICANN maintains law and order is to require everyone who registers a domain name to agree to comply with ICANN administrative proceedings, which are administered by one of four organizations.  The two main organizations are WIPO, which is a truly international group, and the National Arbitration Forum, which is largely used by parties based in the U.S.

If there is a dispute regarding a registered domain then the domain owner is required to present his or her case in arbitration in accordance with the Uniform Domain-Name Dispute Resolution Policy (UDRP), and agrees to be bound by the decision of the arbitrator.  If the owner does not make an appearance in the proceeding then the domain is forfeited to the person initiating the complaint.

There are a few challenges that Beck could raise as a result of the R&M domain and the website’s content.  Is the domain or content defamatory?  Does it infringe on Beck’s right of publicity?  Does it constitute trademark infringement?  It is because Beck has so many legal theories he could pursue that his choice of forum is perplexing.

ICANN proceedings only deal with whether someone has a lawful right to use a particular domain name.  The ICANN panel cannot award damages or prevent someone from registering another similar domain name.  It also cannot punish someone for the contents of their website; it can only take the domain away.  Moreover, while trademark rights are central to the decision, the arbitrator is not necessarily constrained by the trademark laws of any particular country.  Defamation and rights of publicity are virtually non-factors.

If Beck filed a lawsuit in a U.S. court, however, he could try to force Eiland-Hall to surrender the domain name, seek an order to prevent Eiland-Hall from publishing any future material about Glenn Beck’s rumored raping and murdering of young girls, and pursue monetary damages for defamation and for misappropriating his name and trademark.

It is entirely possible that Beck will file a lawsuit later.  After all, he filed an ICANN complaint just two days after the domain went live, and such complaints are relatively straightforward.  The ICANN procedure is also much cheaper than a lawsuit and yields faster results.  However, ICANN rules require complainants to state whether other legal proceeding are pending and, if Beck intended to file suit in the U.S., he likely would have indicated as much.

More likely, Beck chose to file an ICANN complaint because he thought that his legal arguments under U.S. law were too weak.  The ICANN panel deciding Beck’s case is not constrained by U.S. law.  Specifically, it does not have to recognize the U.S. Constitution (particularly, the First Amendment) or fair use exceptions to U.S. trademark law, which would greatly reduce Beck’s chances of success.  Beck may have also been concerned with enduring the inevitable character battle that accompanies any allegation of defamation; after all, you cannot challenge the falsehood of a personal attack without getting personal.

Tomorrow’s segment will delve into the arguments that Beck must make in his ICANN action and whether those arguments are likely to succeed.

(Part 2 in this series is here and Part 3 is here.)