From The Los Angeles Times, 8/14/03:
http://www.latimes.com/news/custom/showcase/la-oe-balkin14aug14.story

Don't Use Those Words: Fox News Owns Them

By Jack M. Balkin, Jack M. Balkin teaches constitutional law at Yale
Law School.


Fox News is suing comedian and writer Al Franken in the New York
courts, attempting to stop the sale of his forthcoming book, "Lies,
and the Lying Liars Who Tell Them: A Fair and Balanced Look at the
Right."

From The Los Angeles Times, 8/14/03:
http://www.latimes.com/news/custom/showcase/la-oe-balkin14aug14.story

Don't Use Those Words: Fox News Owns Them

By Jack M. Balkin, Jack M. Balkin teaches constitutional law at Yale
Law School.


Fox News is suing comedian and writer Al Franken in the New York
courts, attempting to stop the sale of his forthcoming book, "Lies,
and the Lying Liars Who Tell Them: A Fair and Balanced Look at the
Right."

Fox claims that Franken may not use the expression "fair and balanced"
because it has been trademarked by Fox News and that Franken's book
would confuse viewers about the source of the book and about the
objectivity of its coverage.

The court papers filed by Fox are particularly colorful, describing
Franken as a "parasite," "shrill and unstable" and as a person whose
"views lack any serious depth or insight."

It also accuses him of attacking Fox news personalities when he was
either "intoxicated or deranged" at a press correspondents' dinner in
April 2003.

Because Franken's obvious purpose is political parody and satire and,
in particular, parody of Fox News among others, the lawsuit should not
succeed.

Fox may well argue that Franken's parody tarnishes its business and
its mark, but the whole purpose of political parody is to poke fun at
people one disagrees with.

If Franken may not use the expression "fair and balanced" in a book
that accuses Fox News of failing to be "fair and balanced," there is
something seriously wrong with trademark law under our 1st Amendment.

And if Fox can get an injunction preventing the sale of the book, we
can be sure that the expansion of intellectual property rights has
gone too far.

The most troubling aspect of the lawsuit is its attempt to harass a
political opponent through the use of intellectual property laws.

Fox News vs. Franken is merely one episode in a much larger conflict
between freedom of speech and intellectual property rights.

Trademark, like copyright, has now become a general-purpose device for
private parties to use when they want the state to suppress speech
they do not like.

And they are trying to suppress the speech of others not merely to
protect their legitimate economic interests but because of aesthetic
and political disagreements as well.

This is a misuse of trademark, which is designed to protect ongoing
commercial interests, and it is a misuse of copyright, which is
designed to promote progress in ideas, not inhibit robust debate about
ideas.

Fox will richly deserve the bad press it's going to get for filing
this lawsuit, first, for being on the wrong side of a free speech
controversy and, second, for attempting to squelch criticism of its
coverage of the news.

It is egregious for a news organization to try to use the courts to
harass its political critics.

In 1964, at the height of the civil rights movement, an Alabama police
commissioner, L.B. Sullivan, tried to use the state's libel laws to
shut down the New York Times for publishing an advertisement that
condemned racial discrimination in the South and implicitly criticized
him.

The Supreme Court wisely decided that protection of an individual's
reputation had to yield to the promotion of "uninhibited, robust and
wide-open" debate in a democracy.

Its decision in New York Times vs. Sullivan established that free
speech was protected even if it included "vehement, caustic, and
sometimes unpleasantly sharp attacks."

Now Fox News is trying to circumvent that rule by claiming not that
Franken is defaming it but that Franken is stealing and misusing the
words "fair and balanced," which Fox News claims to own.

But no one should own the words necessary to engage in public protest.

It's time for the courts to consider whether trademark law, like
defamation law before it, needs greater constitutional boundaries to
protect robust debate.

Throwing out Fox's lawsuit would be a good first step.

_________________________________________________________

fair and balanced. fair and balanced. fair and balanced.
fair and balanced. fair and balanced. fair and balanced.
fair and balanced. fair and balanced. fair and balanced.
fair and balanced. fair and balanced. fair and balanced.
fair and balanced. fair and balanced. fair and balanced.
fair and balanced. fair and balanced. fair and balanced.

Harry

"In essence, the news organization owned by media baron Rupert Murdoch,
argued the First Amendment gives broadcasters the right to even lie or
deliberately distort news reports on the public airwaves."


Court Reverses Ruling on Jane Akre's rBGH Suit


Accepting a defense rejected by three other Florida state judges on at
least six separate motions, a Florida appeals court has reversed the
$425,000 jury verdict in favor of journalist Jane Akre who charged she was
pressured by Fox Television management and lawyers to air what she knew
and documented to be false information.

In a six-page written decision released February 14, the court essentially
ruled the journalist never stated a valid whistle- blower claim because,
they ruled, it is technically not against any law, rule, or regulation to
deliberately lie or distort the news on a television broadcast.

In the lawsuit filed in 1998, Akre claimed she was wrongfully terminated
for threatening to blow the whistle to the FCC. After a five-week trial
that ended August 18, 2000, a six-person jury was unanimous in its
conclusion that she was indeed fired for threatening report the station's
pressure to broadcast what jurors decided was "a false, distorted, or
slanted" story about the widespread use of growth hormone in dairy cows.

In overturning the jury on what amounts to a legal technicality, the court
did not dispute the heart of Akre's claim, that Fox pressured her to
broadcast a false story to protect the broadcaster from having to defend
the truth in court, as well as suffer the ire of irate advertisers.

Nonetheless, the station aired a report in wake of the ruling saying it
was "totally vindicated" by the verdict.

The "threshold issue," the court wrote-and all it ruled upon--was whether
the technical qualifications for a whistleblower claim were ever met by
Akre. In Florida, to file such a claim, the employer's misconduct must be
a violation of an adopted law, rule or regulation. Fox argued from the
first-and failed on three separate occasions in front of three different
judges-to have the case tossed out on the grounds there is no hard, fast,
and written rule against deliberate distortion of the news.

In essence, the news organization owned by media baron Rupert Murdoch,
argued the First Amendment gives broadcasters the right to even lie or
deliberately distort news reports on the public airwaves.

In its opinion, the Court of Appeal held that the Federal Communications
Commission position against news distortion is only a "policy," not a
promulgated law, rule, or regulation. The court let stand without comment
the jury verdict that awarded nothing to Steve Wilson, Akre's husband and
co-plaintiff in the case. He aggressively represented himself at trial,
paving the way for Fox attorneys to suggest he was as aggressive in the
newsroom as he was in the courtroom and perhaps that was why he was
fired.
Akre and Wilson were meeting with their attorneys to discuss a possible
appeal of the ruling to Florida's Supreme Court and are expected to have
an announcement and further comment soon. For further information:
http://www.foxBGHsuit.com