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Franken wins first round legal battle – calls it victory for bad satirists everywhere

By August 23, 2003law

According to this report a federal judge has denied Fox News Channel’s request for an injunction to stop publication of Al Franken’s new book, whose title mocks the Fox slogan “fair and balanced.” Here’s Reuter’s coverage: “There are hard cases and there are easy cases. This is an easy case,” said U.S. District Judge Denny Chin. “This case is wholly without merit both factually and legally.”

I’m not sure how the case wound up in federal court, since the complaint that I saw floating around was a state court complaint. I couldn’t look up the case docket at the U.S. Southern District of New York because they don’t make their dockets available through PACER (e.g. an online docket system that many federal courts use), so I don’t know if the case was removed to federal court or how it wound up there. No matter, the important thing is that the judge made the right decision.

Fox, and its lawyers, seem to have bungled quite badly —losing not only the battle but perhaps also the larger war. In the wake of the lawsuit, Franken’s publisher, Penguin Group, added 50,000 copies to the publication run, which had originally called for 270,000 copies. Penguin also moved up the book’s release date from September to last Thursday. The book is currently the #1 bestseller at

Franken, was obviously pleased by the first round victory (the court simply denied Fox’s request for a preliminary injunction). He was also pleased with the performance of all of lawyers involved: “In addition to thanking my own lawyers,” Franken said, “I’d like to thank Fox’s lawyers for filing one of the stupidest briefs I’ve ever seen in my life.”

I didn’t see the briefs so I can’t comment on that, but I did read the complaint that was filed in state court and I can say it was, not only devoid of legal merit, but also highly unprofessional. In fact, I’ll provide another link to it here (PDF doc). I invite you to read the complaint, in particular the allegations in paragraph 77. It is obvious that this lawsuit was brought because of the documented disputes between Franken and Bill O’Reilly. Clearly, the two men don’t like each other. And at least one of them may have been openly rude to the other.

I’m not going to vouch for Franken’s behavior since I wasn’t at the press gathering in question, but I know that personal animosity should not appear in a complaint or any other document that a lawyer files in court. Fox’s lawyers should have simply stated their legal case and left the personal attacks out. Somehow, one has to conclude that the whole case by Fox was motivated by a quest for revenge and not by a desire to assert legitimate legal rights.

How fitting, then, that they should lose the first round. And it is fitting also that Franken’s book should wind up being boosted by the publicity that Fox has unwittingly bestowed upon it. Sometimes the legal system and Karma can work together to create a beautiful thing. If Fox has any residue of good judgment they will find a way to let this lawsuit die quietly.

Paul Schur, a Fox spokesman, said the network was “considering its options” on whether to pursue the case. “We don’t care if it’s Al Franken, Al Lewis or ‘Weird Al’ Yankovic,” he said. “We’re here to protect our trademark and our talent.” Well, here’s some free legal advice for Fox. Protecting your trademark and protecting your “talent” are two different things. One would hope that talented hard-nosed journalists like Bill O’Reilly can protect themselves. But, in any case, the courts aren’t there for litigants who want retribution.

Now, if Fox wants to protect its trademark, that’s a different story. It is entirely proper for a court to hear a legitimate trademark dispute. But, from this account it sounds like they won’t be able to convince a court of the merits of their trademark claims either. During the hearing Judge Chin called Fox’s trademarked slogan “weak” or “invalid” because it is a phrase often used by journalists.

“Parody is a form of artistic expression protected by the First Amendment and the keystone of parody is imitation,” the judge said. “It is ironic that a media company, which should be seeking to protect the First Amendment, is seeking to undermine it by claiming a monopoly on the phrase, ‘Fair and Balanced.'”

Indeed. Ironic, and also quite pathetic.

P.S. If you want a better practice, use the 80/20 Principle to start creating radical leverage and massive ROI.
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