Fox v. Franken

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Fox News Network LLC v. Penguin Group (USA) Inc.
CourtUnited States District Court for the Southern District of New York
Full case nameFox News Network LLC v. Penguin Group (USA) Inc. and Alan S. Franken
DecidedAugust 22, 2003
Docket nos.1:03-cv-06162
Citation(s)2003 U.S. Dist. LEXIS 18693; 31 Med. L. Rptr. 2254
Court membership
Judge(s) sittingDenny Chin

Fox News Network, LLC, v. Penguin Group (USA), Inc., and Alan S. Franken (2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254) was a

Fox News Channel, the plaintiff, sought to enjoin Al Franken from using Fox News's trademark phrase "fair & balanced" in the title of his then-forthcoming book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.[1] Judge Denny Chin denied Fox's motion for injunction
on August 22, and the network dropped the suit three days later.

Background

, "fair and balanced" became widely used as an ironic euphemism for perceived right-wing media bias on Fox and other media outlets.

On May 31, 2003, the cable network

Polk Award
for work conducted after O'Reilly severed his ties with the program. The two then engaged in a heated confrontation, which culminated in O'Reilly shouting "Shut up! Shut up!" after Franken interrupted him.

The lawsuit

On August 7, 2003, Fox News filed for relief in New York State court. On August 14, Franken's publisher removed the action to the

preliminary injunction was heard by the court.[7]

In response, Franken joked that he had trademarked the word "funny", and that Fox had infringed his intellectual property rights by characterizing him as "unfunny." Franken's then-unreleased book subsequently rose to the #1 sales position on

Amazon.com's best-seller list from number 489 (his second #1 bestseller after Rush Limbaugh Is a Big Fat Idiot and Other Observations, which attained the top of the New York Times
' list in 1996).

On August 22, U.S. District Court judge Denny Chin heard arguments from attorneys representing the plaintiff and the defendant regarding Fox News's request for an injunction to prevent Franken from releasing the book with its current title. In a hearing punctuated at times by laughter from the assembled spectators,[8] Chin questioned Fox News attorney Dori Ann Hanswirth harshly about her contention that the phrase "fair and balanced" on the cover of Lies and the Lying Liars Who Tell Them was likely to confuse consumers into believing that the book was produced or endorsed by Fox News Channel. At one point he asked Hanswirth, "Do you think that the reasonable consumer would believe, seeing the word lie above Mr. O'Reilly's face, that Mr. O'Reilly or Fox were endorsing this book?"

Chin denied the injunction and said that the case was "wholly without merit, both factually and legally". He went on to suggest that Fox News' trademark on the phrase "fair and balanced" could be invalid. Three days later, Fox News Channel filed to drop the lawsuit.

Though O'Reilly denies it, Franken believes that the commentator goaded Fox News into suing him. In the paperback edition of his book, Franken recalls an incident at the BookExpo where, as O'Reilly and Fox News colleague Shepard Smith were waiting for a hotel shuttle, O'Reilly said, "I'm gonna sue him! I'm gonna sue him!" A week later, Franken's publisher received a letter from Fox saying they were planning to sue.

Judge's decision

Plaintiff Fox News Network, LLC ("Fox") has moved for a preliminary injunction enjoining defendants from, among other things, using the phrase "Fair and Balanced" in the title of the book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, written by defendant Al Franken. The motion was scheduled to be heard by the Court on August 22, 2003 at 3:30 p.m.
By letter dated August 19, 2003, Fox requests a temporary restraining order immediately restraining defendants from further distributing the book pending argument on August 22. By letter dated August 20, 2003, defendants oppose the application for a temporary restraining order.
Fox's application for a temporary restraining order is denied. Fox had not previously requested this relief, and the preliminary injunction motion will be heard in two days in any event. I do not believe defendants or their counsel have in any way misled the Court about the release date of the book.
This order is without prejudice to the parties' arguments on the preliminary injunction motion. I will consider the issues on the merits as I decide the motion for a preliminary injunction following the argument on Friday.

SO ORDERED. 2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254 (2003)

Judge Chin said the case was an easy one, and chided Fox News Network LLC for bringing its complaint to court. The judge said, "Of course, it is ironic that a media company that should be fighting for the First Amendment is trying to undermine it."

After effects

The most direct result of the suit was a windfall for Franken and his publisher, Penguin Group (USA). The book had originally been slated for release on September 22, 2003, but the publicity resulting from the suit prompted Penguin to move the release date up to August 21 and print an extra 50,000 copies, for a total of 435,000; the book was an immediate bestseller. For its part, Fox News Channel was ridiculed by commentators and bloggers on both sides of the political divide, many of whom suggested that the network had filed the suit to placate Bill O'Reilly in the wake of his run-in with Franken at the BookExpo panel.[9][10]

Drawing on Judge Chin's concluding remarks, Franken suggested that Fox News adopt "wholly without merit" as its new slogan to replace the possibly invalid "fair and balanced". In a more serious response, in December 2003, the Independent Media Institute, publishers of the left-wing website

without prejudice.[13]

In 2004, Franken began hosting a talk show, originally titled The O'Franken Factor, on the

Air America Radio network. The program's title was a jab at Bill O'Reilly's show, named The O'Reilly Factor. Franken said that he chose the name to "annoy and bait" O'Reilly into filing another lawsuit.[14] Three months later, Franken changed the name to The Al Franken Show, which he hosted until 2007, when he announced his candidacy for a United States Senate seat in Minnesota that was to be challenged in 2008. Franken served as a U.S. Senator until January 2, 2018, when he resigned due to sexual misconduct allegations
.

The case was documented as part of The First Amendment Project.[15]

See also

  • Moron in a hurry
    , legal phrase

References

  1. ^ "Comedian and Political Commentator Al Franken".
    National Public Radio
    . September 3, 2003. Retrieved October 5, 2005.
  2. ^ U.S. trademark registration no. 2,213,427 (FAIR & BALANCED), registered December 22, 1998, U.S. Patent and Trademark Office Trademark Application and Registration Retrieval (TARR) System. Accessed April 22, 2011.
  3. ^ U.S. trademark registration no. 2,713,413 (WE REPORT. YOU DECIDE.), registered May 6, 2003, U.S. Patent and Trademark Office Trademark Application and Registration Retrieval (TARR) System. Accessed April 22, 2011.
  4. ^ The Most Biased Name in News - Fox News Channel's extraordinary right-wing tilt, FAIR, July/August 2001
  5. ^ 33 internal FOX editorial memos reviewed by MMFA reveal FOX News Channel's inner workings Archived 2009-04-23 at the Wayback Machine, Media Matters, July 14, 2004
  6. ^ Fox as Hound Archived 2007-09-27 at the Wayback Machine, TomPaine.com 08/19/2003
  7. ^ Fox News Network, L.L.C. v. Penguin Group (USA), Inc., 2003 WL 23281520 (S.D.N.Y, August 20, 2003).
  8. ^ Saulny, Susan (August 23, 2003). "In Courtroom, Laughter at Fox and a Victory for Al Franken". The New York Times. Archived from the original on July 4, 2009. Retrieved October 5, 2005.
  9. ^ "Salon.com Politics | "They can dish it out, but they can't take it"". Archived from the original on April 21, 2009. Retrieved September 10, 2009.
  10. ^ http://www.usenet.com/newsgroups/talk.politics.misc/msg02738.html[permanent dead link]
  11. ^ Independent Media Institute v. Fox News Network, LLC, No. 92042790, Cancellation Petition (Dec. 23, 2003 T.T.A.B.)
  12. ^ Independent Media Institute v. Fox News Network, LLC, No. 92042790, Stipulation Withdrawing Petition Without Prejudice (June 28, 2005 T.T.A.B.)
  13. ^ Independent Media Institute v. Fox News Network, LLC, No. 92042790, Board's Decision: Dismissal Without Prejudice (July 6, 2005 T.T.A.B.)
  14. ^ Business | kgw.com | News for Oregon and SW Washington Archived 2007-09-30 at the Wayback Machine
  15. IMDb Edit this at Wikidata

External links

  • "Fox News v. Penguin Group" (PDF). Original complaint
  • AlFrankenWeb.com: Fox v. Franken Transcript
  • "Saturday Book and Author Luncheon: Media Talks". C-SPAN. May 31, 2003. Retrieved April 24, 2015. The Saturday Book and Author Luncheon featured some of the nation's top media commentators on one panel discussing their upcoming works. The discussion became heated at times. Ms. Schroeder moderated the panel featuring media commentators giving presentations on their latest books. The luncheon panel included: Ms. Ivins, author of Bushwacked: Life in George W. Bush's America, from Random House; Mr. O'Reilly, author of Who's Looking Out For You?, from Doubleday Broadway; and Mr. Franken, author of Lies, and The Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, from Dutton Books. Mr. O'Reilly became angry after Mr. Franken went over his time limit while explaining why Mr. O'Reilly's picture was on the proposed cover of Mr. Franken's forthcoming book. The controversy was over an occasion when Mr. O'Reilly had said that his television show had won Peabody awards when in fact it had won Polk awards. Mr. Franken said that Mr. O'Reilly has not sufficiently acknowledged the mistake. After discussions among themselves the panelists answered questions from members of the audience.