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Thursday, August 14, 2003

Free, fair, and balanced legal advice to Fox

I'm normally something of a fan of Fox News.  But as my revised masthead{note1} indicates, today BeldarBlog joins the growing number of blogs that seek to ... ummm, I guess the word I'm looking for is "ridicule" the lawsuit Fox News has chosen to file against Al Franken over his soon-to-be published book.

It's an uncommonly silly lawsuit.

(Bonus points for those who can cite the case and Supreme Court justice I just paraphrased.)

But we report, you decide:

I've always thought the "fair and balanced" slogan was a bit inapt anyway.  Maybe, instead, they should go with "Pleasantly slanted just enough to counter any one liberal network of your choice, you pick 'em."  After all, that's why I watch Fox from time to time in addition to CNN.  It's why I read the Wall Street Journal in addition to the Washington Post (among several others). 

If a newspaper or a TV network or a blog ever actually achieved the "fair and balanced" state of equilibrium, it'd be a statistical fluke with the half-life of one of those subatomic particles that only exists in a cyclotron.

We're each the product of our life experiences, and therefore bring biases to every new situation.  That can't be helped, although it can be acknowledged and, sometimes when need be, pointed out and moderated.  Al Franken's book Heck, when I'm trying to pick a jury, I start off knowing that there's zero possibility of getting jurors who are actually unbiased — there's no such thing!  All I can hope for are some whose biases aren't so strong that they'll tune out everything they hear from me, the judge, and the witness stand.  And then I hope that they'll do their best, and mostly succeed, at making their decision based on that, rather than based on their biases.

In a serious post recently, I had occasion to blog about the twin and different duties that a trial lawyer owes his clients — as a public advocate in court, and as a private counselor behind closed doors.  Protecting that important second function is, for example, why there's such a thing as attorney-client privilege.

And in my not-so-humble, admittedly biased, and very amused opinion, someone at whatever outside law firm is representing Fox must have seriously dropped the ball as a counselor. 

This case is borderline litigation abuse.  And strategically, it's colossally stupid.  Whoever signed the complaint that initiated this lawsuit should have Bill O'Reilly's allegedly infringed booksat down first with the decision-makers at Fox and had what trial lawyers (even the Jewish ones I know) call "the come-to-Jesus meeting": 

"Look, guys, I love you, you're a great client, I'm with you 100 percent, but I've been a lawyer for 23 years, and you hired me not just to kick the holy snot out of your opponent, but to keep you from stepping on your genitals.  This lawsuit would be a mistake from a legal and a marketing perspective.  Don't do it, please.  I refuse to be a party to this nonsense.  I hope you'll change your mind, but regardless, I'm not going to sign this pleading."

That's what I'd have told 'em anyway.  And I'm actually not fair and balanced, I'm as mean and as rock-ribbed conservative-bordering-on-crackpot as they come.  But it's still good advice.  And it's free!


UPDATE (Aug 15, 2003):

The complaint was filed by Hogan & Hartson in the state-court system of New York.  (The trial-level courts in New York are confusingly named "Supreme Courts" — OMG, I've just been hit with an inspiration for a Lanham Act lawsuit, if only I can persuade Chief Justice Rehnquist to hire me!  And if Bob Crane were still alive, maybe I could ... naw, guess not.)

Hogan & Hartson describes itself as a "the oldest and the largest major law firm based in Washington, D.C.," with close to 1000 lawyers scattered about offices all over the world.  The complaint is signed by one "Dori Ann Hanswirth," a partner in the firm's intellectual property section with a cum laude degree from Cardozo Law School in 1986 and a federal district court judicial clerkship among her accomplishments.

These facts, IMHO, make it all the more reprehensible for Fox to have filed this lawsuit, because this caliber of lawyer and law firm should know better.

The key allegation is that Franken and his publisher "seek to exploit Fox News' ["Fair & Balanced"] Trademark, confuse the public as to the origin of the book, and accordingly boost sales of the book," thereby raising legal claims for trademark infringement and unfair competition under the Lanham Act and New York state common law. 

Among Fox's commercial interests listed as being threatened by Franken's book are the Fox News coffee mugs bearing the slogan:  "Balance is Important in News and Hot Coffee."  So too in the practice of law, Dori Ann!

The best I can say about the rest of the complaint is that it appears to have been well proof-read.  I did not spot any spelling errors.  It does, however, contain quite a few gratuitous insults to Franken — describing him, for instance, as "shrill and unstable," "'a C-level political commentator' who is 'increasingly unfunny,'" and — this one's simply a chin-scratcher — "neither a journalist nor a television news personality."  Last time I checked, the requirements for calling oneself either a journalist or a television news personality are rather less rigorous than the requirements for calling oneself, say, a lawyer.  It's hard for me to imagine that Fox News can prove that allegation. 

The complaint also contains a few  instances that appear to be instances of what boxing commentators and trial lawyers call, "Leading with your chin":  for example, were I representing Franken, I'd be fairly eager to find out through pretrial discovery the identity of the "commentator" who "has referred to Franken as a 'parasite' for attempting to trade off of Fox News' brand and [Bill] O'Reilly's fame in the Preliminary Cover of his Book."  If this turns out to be, say, Sean Hannity, Fox's lawyers will have succeeded in being quite a bit funnier than Franken usually is — but rather without intending to.

This lawsuit bodes ill for Fox in so many different ways, it's hard to list them all.  Were I licensed in New York and had I signed this complaint, Al Franken in the sequel?I would be genuinely concerned that a wrathful court might sanction me — very likely by requiring me to pay Franken's legal fees out of my own pocket. 

But beyond that, Fox is very likely going to imbue Franken with a dignity that will sap its own and that he could never possibly achieve on his own.  The parallel would be if Ahh-nuld decided to concentrate his campaign rhetoric not on Gray Davis, but on Don Novello a/k/a "Father Guido Sarducci." 

Fox's lawyers are going to end up turning Franken into — dare I say it? — "Hogan's Hero"!  "Who told you Al Franken was a parasite?  Who?"  "I know nufff-ink!  I see nufff-ink!"

UPDATE (Fri Aug 22):  Fox lost round one in court.


{note1} [I removed the "fair & balanced" phrase from my blog's subtitle in early September 2003, after the Fox lawsuit against Franken and his publishers was dismissed; the point of the parody had been made, and I don't in fact claim to be fair and balanced. — Beldar 9/9/03]

Posted by Beldar at 08:08 PM in Law (2006 & earlier) | Permalink


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(1) Dennis Slater made the following comment | Aug 24, 2003 2:03:10 PM | Permalink

I was under the impression that by impuning Mr Franken's character that Fox was providing a basis for their claim that Franken's associating his personal and professional reputation with their trademark diluted/tarnished their trademark. I did not see any reference to dilution in reports concerning Judge Chin's decision. Dilution by tarnishment in this case would be a stronger claim from Fox's point of view. It would be similar to someone using Wal-Mart's Always trademark, as in Always Low Prices, in connection with pornographic materials as in You can expect Always Low Prices for our vibrators. Wal-Mart probably doesn't claim their trademark for products like vibrators (let's assume they don't) so they would not be able to claim infringement on that basis, however the connection of their trademark with what most would view "unsavory" products would give them the ability to claim dilution/tarnishment of their trademark. Mr Franken's behavior does have unsavory elements that Fox should not want associated with its trademarks. For example, Franken's recent unauthorized use of Harvard's letterhead to attempt to get people like AG Ashcroft to reveal their personal sexual past by lying to them and presenting himself to them as something he was not.

BTW: could Franken has found a more favorable judge than Chin to hear his case? And wasn't the judge stretching the limits of acceptable judicial behavior with his personal comments to the media about the case?

(2) Beldar made the following comment | Aug 24, 2003 3:14:17 PM | Permalink

Thanks for the comment!

From the media reports I've read, it sounded as if Judge Chin's comments were made in open court. If he called a press conference, that would be extraordinary and improper, but I don't think that was the situation. I don't know anything about Judge Chin's personal background, but I'm reasonably confident that he would have received this case on a random-assignment basis when Franken's lawyers bumped the case from the New York state-court system into federal court.

For a number of reasons, Franken's lawyers' decision to jump into the federal court system was a "no-brainer," but it was a move that Ms. Hanswirth should have expected. Fox could have filed originally in federal court, but apparently chose not to; however, they also failed to tailor their claims in a way that might have denied the federal-court option to Franken's lawyers. I frankly doubt that Fox would have done any better in the state-court system, but if — as a tactical evaluation of the sort that trial lawyers make daily — they highly preferred the NY state-court system as their forum, then they did a poor job of ensuring that they could stay there. It's a poor plaintiffs' lawyer that can't effectively fix the forum where he wants it to be, and a very poor one who doesn't think about that before drafting and filing his complaint; so to give Ms. Hanswirth the benefit of the doubt, I'm inclined to assume that they didn't much care whether they stayed in state court or got bumped up to federal court via "removal" by Franken's lawyers.

I agree that with some substantial portion of the public — myself included, in fact! — Franken has a lousy reputation, and if someone were actually confused into thinking that Fox News had somehow sponsored his book, that might result in damage to Fox News' reputation. But I tend to agree with the comments attributed to Judge Chin in the media reports of the hearing, to the effect that someone would have to be "incredibly dense" to come to that conclusion. Whether it's funny or effective, or just a pile of crap, Franken's book is so obviously a parody that's hostile to Fox News that it's very hard to imagine someone with the capacity to read it actually being confused.

By the way, Floyd Abrams of Cahill Gordon represents Franken and his publishers. There's a fair concensus from both the right and the left that he's the best First Amendment lawyer in the country. His personal politics are considerably to the left of mine, and I don't always agree with his more extreme interpretations of the First Amendment. But he's a helluva good lawyer, one who doubtless brings Mr. Franken a great deal of credibility, whether he deserves it or not.

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