2009-10-08 Interview of Marc Randazza by Ed Brayton


 * Brayton  Welcome back to Declaring Independence. My next guest is Marc Randazza. Marc is an attorney specializing in the First Amendment, one of my favorite subjects. He is currently representing a man named Isaac Eiland-Hall who is being sued, in a manner of speaking, by Glenn Beck for putting up a satirical website making fun of him. Marc, welcome to the show.

Randazza  Hey, thanks a lot Ed.
 * Brayton  Now Isaac Eiland-Hall started this website and the domain is, I can’t even say this without laughing, GlennBeckRapedAndMurderedAYoungGirlIn1990.com. And now he doesn’t really claim that Glenn Beck raped and murdered a girl in 1990, he’s just trying to make a point by using Beck’s rhetorical style against him, right?

Randazza  Correct. This is, this is actually a, you know, if you don’t know the history of this joke, you might look at it blankly and say “I don’t get it,” but that’s what happens with a lot of internet jokes, you know. There were kids running around screaming “Mr. Spock ate my balls” or uh, “All your base are belong to us,” just, just baffling people a mere five or six years older than them. But what this is, is this, is a takeoff on a routine that Gilbert Gottfried did at the roast of Bob Saget and uh, you know, I’m not going try to do a Gilbert Gottfried impersonation on your show…
 *  Brayton  Thank you.

Randazza  But just say…
 * [both laugh]

Randazza  Just say that he, uh…
 *  Brayton  Although let me say this, I, I’ve [audio unclear] comedy for several years and including with Gilbert. Gilbert is extremely funny.

Randazza  He is and, but I, I’m sure that I would ruin it as an attorney, but just say that he just stood up there and repeated again and again that there are these rumors that Gil- that, uh, Bob Saget raped and murdered a girl in 1990 and people have got to stop spreading these rumors unless they have evidence that it happened. And uh, it was funny at the time and now, it only took a matter of time before somebody connected that joke to the way that Glenn Beck interviews his subjects.
 *  Brayton  And now Beck wants to get that website taken off the web, right?

Randazza  Apparently so.
 *  Brayton  Get that domain taken away from Mr. Eiland-Hall.

Randazza  That is the goal of the pleading that he’s filed, yes. He has claimed that it infringes upon his trademark.
 *  Brayton  Now this is in lieu of…of a libel suit. Why didn’t he just file a libel suit?

Randazza  Because it would have been, I think, you know, I put in a letter to him that it would be humiliatingly doomed. When it, when you, if you have a very, very basic and uninformed op-, understanding of libel law, you might say, OK, the website says Glenn Beck raped and murdered a girl in 1990. Well, that’s a statement of fact. It’s not true. Therefore it’s defamation. But that’s not how it works. Context is everything.
 *  Brayton  True.

Randazza  So, when it comes to defaming a public figure, now remember here,you know, your listeners out there, the average citizen only has to show a low level of uh, of wrongdoing in order to prevail in a libel action. But a public figure, somebody who has purposely seized the limelight and who has access to the media, has to show something called actual malice. And that means you have to show that it was knowingly false or that it was a reckless disregard for the truth. Now, that might even seem to fit here, however, the Supreme Court has ruled that when in the context it is not really a serious statement of fact, actual malice cannot be proven.
 *  Brayton  In other words, when you see, if you could look at it in context say listen no one is going to really believe that’s what they’re doing. In fact, in this case, there’s a pretty bold disclaimer right in the site saying… Right?

Randazza  Right. Yeah, that, I mean the context of the disclaimer is one thing, but uh, you know, even the claim itself. You can absent the disclaimer. I don’t think the legal position would be any different. Um, it’s, you know, I’m sure that you’re familiar with the case, uh, Hustler vs. Falwell from the movie The People vs Larry Flint.
 *  Brayton  I’m familiar with all of these. I have been threatened with libel suits so many times um, over the years, that I know libel law inside and outward, but for my listeners, explain what the Falwell vs. Flint was.

Randazza  Well, Falwell vs. Flint is that, just to be clear, it’s not an exact match. There are some lesser known cases that are exact matches to this, but in Falwell, in the Falwell case, uh, Larry Flint published a bogus Compari ad in Hustler, in which Larry Flint accused Jerry Falwell of having lost his virginity in an outhouse with his mother, um, with a goat and with the uh, smell of feces in the air. Now, clearly false, clearly nasty.
 *  Brayton  Yeah. Yeah, but that’s hot. Come on…

Randazza  At…
 * [both laugh]

Randazza  At the trial level, the jury didn’t even go along with that because it was clear that nobody would look at it as a true statement of fact.
 *  Brayton  It was meant to be satire.

Randazza  Right.
 *  Brayton  It was very clearly satire. Nobody’s going to take this seriously.

Randazza  Correct. Now it went forward. That case actually did go forward and all the way up to the Supreme Court on a theory of intentional infliction of emotional distress. And um, on a unanimous decision the Supreme Court even threw that claim out because really the rule is, in the United States, if you climb up on that stage you have to expect you’re going to get tomatoes thrown at you.
 *  Brayton  Right. Now this, and in, I mean this case, they went even, Mr Eiland-Hall on this website says look, even if it’s not obvious enough that this is a satire. Uh, let me quote this what he says on here."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.

"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."– [laughs] It’s a very funny way to put the disclaimer, but you can’t, I mean you’ve basically stamped satire across this whole thing.

Randazza  Right.
 *  Brayton  Nobody’s going to really believe that Glen Beck raped and murdered someone.

Randazza  Ah, no they’re not.
 *  Brayton  So he’s taken this case, this is not a lawsuit in the United States. This is before an international internet governing body that handles disputes over domain names, the UDRP, right?

Randazza  Doesn’t that just make the whole thing more delicious?
 *  Brayton  It does and I want to get to that in just a second, but uh, but this is a legitimate group they do handle these domain name disputes and there are circumstances in which you could get a domain name taken away from somebody. Give us, what would be legitimate grounds for a dispute over a domain?

Randazza  Well yes, I mean the UDRP, I think, is a, you know, it’s a process with a few little flaws in it but generally speaking it’s a great procedure. If somebody is using a domain name that is confusingly similar to your trademark and trying to steal traffic from you, you can get the domain name taken from them. Your, your listeners are probably familiar with these cybersquatting sites where if you um, pick any website that you would really want to go to and forget to put the dot between the www and the domain, chances are you’re going to find yourself at a website that’s going to be not even close to what you were looking for. Now again, you know, there’s, there’s other, other ways this is done as well. People will run out and grab domain names that they think will garner more traffic, put up websites where all it is is a farm of links that anytime somebody hits one of them they get a nickel, but in the aggregate you can make some good money doing this. The problem is it’s illegal and you can get sued for it in the United States under the Anticybersquatting Consumer Protection Act, but lawsuits take a long time, they’re expensive, they’re nasty. UDRP complaints are relatively easy and quick.
 *  Brayton  So…

Randazza  They take about sixty days and all you have to do is show that the other party registered and used the domain name in a bad-faith attempt to uh, in some way profit from your trademark.
 *  Brayton  And to confuse people into thinking that this is really your website.

Randazza  At least in some manner, yes.
 *  Brayton  So this led to your first response, which I wrote about on my blog the other day and I want to quote this because I think this is just brilliant. You wrote in this response:''“There is no indication that the Respondent has intentionally attempted to confuse anyone searching for Mr. Beck’s own website, nor that anyone was unintentionally confused – even initially. Only an abject imbecile could believe that the domain name would have any connection to Mr. Beck.

“We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at [Glenn Beck’s] website wondering 'where did all the race baiting content go?' We are here because Mr. Beck wants Respondent’s website shut down. He wants it shut down because [the] website makes a poignant and accurate satirical critique of Mr. Beck by parodying [his] very rhetorical style. Beck’s skin is too thin to take the criticism, so he wants the site down."– Now that’s pretty blunt language for a legal brief. I’ve read thousands of legal briefs…''

Randazza  Did I write that?
 * [both laugh]
 *  Brayton  You wrote that, and I’ve read thousands of legal briefs. Rarely are they that funny and rarely are they that…bold. I was impressed that you, you know, that, for that amount.

Randazza  You, you know, I, I’ve sort of not practiced law the way a lot of people do. You know, I find that, first off, I found when I went to law school that there seems to be this requirement that in order to go to law school you have to have uh, you know, a stick up your butt and then law school finds the people that don’t have that and puts one there and then finds everybody and tries to pound it up there even farther. It’s completely unnecessary. Um, you know, we are part of the reason I think that people don’t identify with lawyers or like lawyers is that we try to…we collectively try to act like we’re so different from everybody else. We’re not. You know. My job is to take my clients story and tell that story to the person that has to make the decision in a way that’ll make them understand. And yeah, you know, you’re not going to find people trying to really employ that kind of rhetorical style, normally, but I thought it was most appropriate here, because the joke itself is not that easy to get and it’s one in a string of many internet jokes known as internet memes. And I really feel that if you’re gonna understand the case, you’ve got to be in on the joke. And you can’t be in on the joke unless you come down to my client’s level a little bit.
 *  Brayton  Well, you immediately became my favorite lawyer when I read that and, and you moved up even a notch more with your second response. And this is pure genius. Um, I think. The second response uh, to his complaint, you asked him to stipulate something in the case. Explain to my listeners what you did.

Randazza  Well, uh, you know, under the UDRP, this international procedure that we’re using in this dispute um, the arbitrators are not bound by any one nation’s laws. They could be drawn from any country. They can apply almost any legal principle they want, although there is a sort of a conglomeration of where all of our international legal principles come together and that’s something you can count on there. But when it comes to domain names that are used to criticize other people, there’s a split. And that’s because we in the United States, you know, we fought really hard for our First Amendment rights and American arbitrators are not going to let that get eroded at WIPO. They find that if the domain name is used to criticize something or somebody in a manner that would be permissible under U.S. law, they’re not going to reward the domain name to the complainant. Under View 1, which is usually adopted by European panelists that have a little more restrictive view of free speech and more expansive view of defamation, that’s not enough. So in those, in cases like that for example, the, the real divide is on “sucks” cases, where you have the name of a company and then it says that it sucks.com. European arbitrators tend to give those to the complainant and Americans tend to not to. So what I did is I simply asked Mr. Beck to uh, through his lawyers, to stipulate that the First Amendment should apply to these proceedings. I thought that, as a patriotic American going to WIPO with another patriotic American, we’d all want the First Amendment to apply. This is especially the case given Mr. Beck’s published statements. You know, he has publicly stated that Dean Harold Coe of Yale Law School is a threat to American democracy because he wanted to “subordinate the American constitution to foreign and international rules” and Mr. Beck also said once we sign our rights over to international law the constitution is officially dead. Therefore I naively presumed that he would also want to stipulate that the First Amendment should apply to these proceedings. So I politely asked him to do that.
 *  Brayton  [laughs] Well, it’s, this is a little more polite than the previous one, and I’m gonna quote you here:''“I hate to presume anything about anyone, but I presume that Mr. Beck will agree to this stipulation. It would be an interesting day indeed if Mr. Beck preferred to risk that a panelist would apply French law to a case between two Americans over a matter of public discourse.

“I am certain that neither party wishes to see First Amendment rights subordinated to international trademark principles, thus unwittingly proving Mr. Beck’s point. Lest this case become an example of international law causing damage to the constitutional rights that both of our clients hold dear, I respectfully request that your client agree to stipulate to the application of American constitutional law to this case.”– Now this is pure genius as far as I’m concerned because this is hoisting him by his own petard, uh…as the old saying goes.''

Randazza  Oh, I hadn’t considered it that way.
 *  Brayton  Uh, and you know sort of painting him into a corner out of which he has now… Has there been any reply to that motion?

Randazza  Not that has been received by me, no.
 *  Brayton  OK, but it’s really kind of got him in a bind, doesn’t it?

Randazza  Uh, well, I don’t really…
 *  Brayton  At least rhetorically.

Randazza  Perhaps. Yes. You know, I don’t, I don’t want to put words in his mouth, but uh, if he stands for what he says he stands for publicly, I presume that I will eventually hear from them that, uh, he would like the First Amendment to apply to these proceedings.
 *  Brayton  Well, the good thing is that we don’t have to put words in his mouth because he’s put those words out of his mouth.

Randazza  He has.
 *  Brayton  Here he is criticizing liberals, he said: “Let me tell you something about liberals.  When you can’t win with the people you bump it up to the courts. When you can’t win with the courts, you bump it up to the international level.”

Randazza  Yes. The irony meter is running in that…
 *  Brayton  This is, my irony meter was destroyed. Um, and I’m needing to get a stronger one because this seems to happen quite a bit. Now you mentioned earlier this notion of internet memes and in one of your, the uh, appendices to this you went to a lot of trouble to explain to this panel the idea of internet memes. You provided a list of some of the biggest ones from LOLcats to “all your base are belong to us” which anybody sort of familiar with uh, with this sort of thing happens and this one sort of started out as a um, Comedy Central Roast and a Gilbert Gottfried joke and it just kept spreading and kept spreading until someone finally applied it to Glenn Beck and then apparently it was a Fark, the Fark website, I…

Randazza  Yes, Fark.com.
 *  Brayton  Is, which is a very funny website. Um, and it’s, now then, you know where this is leading, right?
 * [audio plays of Rick Astley’s “Never Gonna Give You Up”]

Randazza  Oh, you’re Rick Rolling me on the air?
 *  Brayton  You have been Rick Rolled.
 * [both laugh]
 *  Brayton  And I, it just, I, It had to be done. It was a moral imperative. Uh…
 * [laughter ensues]
 *  Brayton  So…
 * Unknown speaker  And now explain that for the rest of the listeners who don’t know what just happened.
 *  Brayton  This was…this is one of the internet memes. This has of course become huge. This is like the second biggest internet meme of all time.

Randazza  Yeah.
 *  Brayton  Is this song, which and uh, I’m unfortunately am punishing myself as much as I am you by playing this because the moment you hear this song, this is, this is a musical virus. It gets into your head and it will now be in all of our heads for the rest of the evening and yes, you can blame me.

Randazza  Yeah.
 *  Brayton  Marc, I want to thank you for being with us. This, I, I just discovered this case the other day and I, I read your briefs and it, and like I said, you immediately became my favorite lawyer in the world. Uh, for these, you know, very funny, but, but accurate, I mean really compelling arguments as well.

Randazza  That’s the thing. You know, we’re, a lawyer really is a storyteller and you’ve got to be able to write to your audience. You’ve got to be able to simply communicate that… you know, legal writing does not have to be inhuman. It doesn’t have to hurt to read it. And what I think too many lawyers forget is that a human being has to read their brief.
 *  Brayton  Right.

Randazza  And when you make it this choppy, bullet pointed nothing, nobody would want to read it type material, I don’t think you’re doing the judge a favor, I don’t think you’re doing your client a favor. If you’re, if it’s well researched, you’re citing the proper cases, and you’re getting your point across, why shouldn’t it be something that people want to read as well?
 *  Brayton  I agree. And you did a great job with this and I can’t wait to see what the reply is to that motion for stipulation. Please email me when you get a reply.

Randazza  oh, do you have the cricket sound on your uh, on your soundboard?
 *  Brayton  I don’t, no. I’m afraid not.
 * [Randazza laughs]
 *  Brayton  Marc, thanks for being here with us.

Randazza  Hey, it’s a pleasure bud.