Fox vs. Franken: A ‘fair and balanced’ decision

Sunday, August 31, 2003

Nothing unites the legal community like a good joke.

After Fox News filed a lawsuit against comedian and author Al Franken over the title of his new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, few took it seriously. In fact, the researcher for a morning news show told me she had yet to talk to any legal authority or expert who believed that Fox would win the suit. The Washington Post called it “the most ridiculed lawsuit of the year.”

Fox News claimed that Franken had no right to use the words “fair and balanced” because that phrase is a Fox trademark. The network sought an injunction to prevent distribution of the book, which criticizes Fox.

After considerable laughter in the courtroom, U.S. District Judge Denny Chin delivered the punch line last week: “This case is wholly without merit, both factually and legally.” As Judge Chin noted, “There are hard cases and there are easy cases. This is an easy case.”

This was an easy case because Fox News attempted to make an end run around the First Amendment using trademark law.

A trademark is designed to protect the commercial interests of a company. It was never intended to protect a network or its on-air talent from hurt feelings.

In 1998, Fox successfully registered “fair and balanced” as a trademark, meaning that its news competitors could not use that phrase as a primary marketing theme. It did not mean that Fox had just won exclusive rights to two popular adjectives in the English language.

Franken’s book pokes fun at Fox News and a large assortment of leaders, legislators and politicians. It’s a biting attack on people in positions of power — exactly the kind of content the founding fathers intended to protect with the First Amendment.

Franken’s use of “fair and balanced” was an intentional tweaking of Fox News. That’s called satire, not theft.

Judge Chin refused to stop publication of the book, but left the lawsuit intact. Recognizing that this case was going nowhere — and perhaps weary of the laughter — Fox dropped the suit on Aug. 25.

If this case had gone to a courtroom, the test on the trademark issue would have been whether Franken’s use of the phrase was likely to confuse consumers and lead them to believe that Franken was somehow affiliated with Fox. I’m not sure whether it would have been harder to believe that Franken was affiliated with Fox or that most Americans automatically think of Fox News when they hear the phrase “fair and balanced.”

Most disappointing in this case was the eagerness of a news organization to undercut the First Amendment rights of someone with whom it disagreed.

A free press was intended to be a watchdog on government, preserving the civil liberties of all.

News organizations honor the First Amendment when they ask the tough questions, fight to keep the public’s business public and provide the kind of thorough and balanced reporting that is the lifeblood of a democracy.

At the root of the First Amendment was a belief that a news organization with a free hand to publish the truth would fend off a censor, not become one.

Fox lost sight of its First Amendment obligations when it saw its star Bill O’Reilly on the cover of the book, his face sandwiched between “lies” and “lying liars who tell them.” Their pleadings in the case betrayed their emotions, peppered with descriptions of Franken as “increasingly unfunny” and a “parasite.” Such colorful language in a legal document suggests that Fox is hiring lawyers who attended a law-school course titled “So’s Your Mama 101.”

Judge Chin quickly cut through the trademark argument and provided a concise explanation of why Franken had to win this case.

“Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation,” the judge said. “Mr. Franken is clearly mocking Fox.”

In the wake of this ridiculous lawsuit, Franken has a lot of company.

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