Fox v. Franken

{{Use American English|date=February 2026}} {{Use mdy dates|date=September 2023}} {{Infobox United States District Court case | name = Fox News Network LLC v. Penguin Group (USA) Inc. | court = [[United States District Court for the Southern District of New York]] | image = USDCSDNY.svg | imagesize = 150 | caption = | full name = Fox News Network LLC v. Penguin Group (USA) Inc. and Alan S. Franken | date decided = August 22, 2003 | docket = 1:03-cv-06162 | citations = 2003 U.S. Dist. LEXIS 18693; 31 Med. L. Rptr. 2254 | transcripts = | judge = [[Denny Chin]] | prosecutor = | counsel for plaintiff= | plaintiff = | defendant = | prior actions = | subsequent actions = | holding = | keywords = }}  '''''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 [[lawsuit|civil lawsuit]] filed in the [[United States District Court for the Southern District of New York]] on August 7, 2003. [[Fox News Channel]], the plaintiff, sought to [[Injunction|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|Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right]]''.<ref> {{cite web | last = | first = | authorlink = | date = September 3, 2003 | url = https://www.npr.org/templates/story/story.php?storyId=1419191 | title =Comedian and Political Commentator Al Franken | work = [[National Public Radio]] | publisher = | accessdate = 2005-10-05}}</ref> Judge [[Denny Chin]] denied Fox's motion for [[injunction]] on August 22, and the network dropped the suit three days later.

==Background== [[Rupert Murdoch]]'s [[News Corporation (1980–2013)|News Corporation]] had founded [[Fox News Channel]] in 1996, in part to counter what it contended was systemic left-wing [[Media bias|bias]] on the part of other U.S. news outlets.{{Citation needed|date=July 2009}} To bolster this perception, Fox used "Fair & Balanced" and "We Report. You Decide." as slogans, and obtained federal trademark registrations for each.<ref>U.S. trademark registration no. [http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=75280027 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.</ref><ref>U.S. trademark registration no. [http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=76433533 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.</ref> Critics such as [[Fairness and Accuracy in Reporting|FAIR]]<ref>[http://www.fair.org/index.php?page=1067 The Most Biased Name in News - Fox News Channel's extraordinary right-wing tilt], FAIR, July/August 2001</ref> and [[Media Matters for America]]<ref>[http://mediamatters.org/items/200407140002 33 internal FOX editorial memos reviewed by MMFA reveal FOX News Channel's inner workings] {{Webarchive|url=https://web.archive.org/web/20090423023930/http://mediamatters.org/items/200407140002 |date=2009-04-23 }}, Media Matters, July 14, 2004</ref> have accused Fox of having a pervasive [[Fox News Channel#Controversies and allegations of bias|conservative bias]]; on many [[Web site]]s and [[blog]]s, "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 [[C-SPAN|C-SPAN2]] broadcast a panel discussion on political books that was taking place at [[BookExpo America]], a trade show for the book publishing industry. The panel included Franken, whose ''Lies and the Lying Liars Who Tell Them'' was scheduled for release in the autumn, and Fox News personality [[Bill O'Reilly (political commentator)|Bill O'Reilly]], who was promoting his own book ''Who's Looking Out For You?'', which was due for release at about the same time as Franken's. Saying that he felt the need to explain why a fellow panelist's face was on the cover of a book entitled ''Lies and the Lying Liars Who Tell Them'', Franken told a story about O'Reilly's incorrect statements that ''[[Inside Edition]]'', a show that he had formerly worked for, had won two [[Peabody Award]]s, when it in fact won a [[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 [[United States District Court for the Southern District of New York]] on [[federal question]] grounds.{{Citation needed|date=November 2008}} In what author and editor [[Richard Blow]] described as "an eight-inch thick legal filing,"<ref>[http://www.tompaine.com/Archive/scontent/8656.html Fox as Hound] {{webarchive|url=https://web.archive.org/web/20070927200748/http://www.tompaine.com/Archive/scontent/8656.html |date=2007-09-27 }}, TomPaine.com 08/19/2003</ref> the network contended that it had been irreparably harmed by the publicity surrounding Franken's use of the phrase "fair and balanced" on the preliminary cover of ''Lies and the Lying Liars Who Tell Them'', which Fox claimed it had first become aware of following the BookExpo panel discussion in May. The filing stated that Franken had "been described as a 'C-level political commentator' who is 'increasingly unfunny'", and claimed that the comedian was "shrill and unstable" and had "appeared either intoxicated or deranged" at a [[Press Correspondents' Dinner with the President|press correspondents' dinner]] in April 2003. The filing cited only two sources for those quotes, one of which was a website to which Bill O'Reilly was a contributor, and the other was a website where anyone could contribute. Fox also requested a temporary [[restraining order]] (denied August 20, 2003) to restrain the distribution of the book until their request for a [[preliminary injunction]] was heard by the court.<ref>Fox News Network, L.L.C. v. Penguin Group (USA), Inc., 2003 WL 23281520 (S.D.N.Y, August 20, 2003).</ref>

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 ''[[The New York Times|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,<ref> {{cite web |last = Saulny |first = Susan |date = August 23, 2003 |url = https://www.nytimes.com/2003/08/23/nyregion/23FRAN.html |title = In Courtroom, Laughter at Fox and a Victory for Al Franken |work = The New York Times |accessdate = 2005-10-05 |archiveurl = https://web.archive.org/web/20090704223849/http://www.nytimes.com/2003/08/23/nyregion/23FRAN.html |archivedate = 2009-07-04 |url-status = dead }}</ref> 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 [[Public transport|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== <blockquote> 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. <br> 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. <br> 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. <br> 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. <br> SO ORDERED. 2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254 (2003)</blockquote>

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.<ref>{{cite web |url=http://dir.salon.com/story/news/feature/2003/08/27/franken/print.html |title=Salon.com Politics | "They can dish it out, but they can't take it" |accessdate=2009-09-10 |url-status=dead |archiveurl=https://web.archive.org/web/20090421141950/http://dir.salon.com/story/news/feature/2003/08/27/franken/print.html |archivedate=2009-04-21 }}</ref><ref>http://www.usenet.com/newsgroups/talk.politics.misc/msg02738.html{{dead link|date=January 2018 |bot=InternetArchiveBot |fix-attempted=yes }}</ref>

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 [[AlterNet]], filed a petition to cancel the trademark in the [[U.S. Patent and Trademark Office]]'s [[Trademark Trial and Appeal Board]], calling it "notoriously misdescriptive."<ref>''Independent Media Institute v. Fox News Network, LLC'', No. 92042790, [http://ttabvue.uspto.gov/ttabvue/ttabvue-92042790-CAN-1.pdf Cancellation Petition] (Dec. 23, 2003 T.T.A.B.)</ref> The Institute and Fox settled in 2005,<ref>''Independent Media Institute v. Fox News Network, LLC'', No. 92042790, [http://ttabvue.uspto.gov/ttabvue/ttabvue-92042790-CAN-26.pdf Stipulation Withdrawing Petition Without Prejudice] (June 28, 2005 T.T.A.B.)</ref> and the TTAB accordingly dismissed the petition [[without prejudice]].<ref>''Independent Media Institute v. Fox News Network, LLC'', No. 92042790, [http://ttabvue.uspto.gov/ttabvue/ttabvue-92042790-CAN-27.pdf Board's Decision: Dismissal Without Prejudice] (July 6, 2005 T.T.A.B.)</ref>

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.<ref>[http://www.kgw.com/business/stories/kgw_033004_biz_progressive_radio.d7edf1d8.html Business | kgw.com | News for Oregon and SW Washington] {{webarchive|url=https://web.archive.org/web/20070930155736/http://www.kgw.com/business/stories/kgw_033004_biz_progressive_radio.d7edf1d8.html |date=2007-09-30 }}</ref> 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 [[Al Franken#Sexual misconduct allegations and ensuing resignation|sexual misconduct allegations]].

The case was documented as part of [[The First Amendment Project]].<ref>{{IMDb title|qid=Q123581679|title=The First Amendment Project: Fox vs. Franken}}</ref>

==See also==

*[[Moron in a hurry]], legal phrase

==References== {{reflist}}

==External links== *{{cite web|url= http://news.findlaw.com/hdocs/docs/ip/foxpenguin80703cmp.pdf |title=''Fox News v. Penguin Group'' }} Original complaint *[https://web.archive.org/web/20080705090930/http://alfrankenweb.com/foxcourt.html AlFrankenWeb.com: ''Fox v. Franken'' Transcript] *{{cite web|title=Saturday Book and Author Luncheon: Media Talks|url=http://www.c-span.org/video/?176827-4/saturday-book-author-luncheon-media-talks|publisher=[[C-SPAN]]|accessdate=24 April 2015|date=31 May 2003|quote=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.}}

{{DEFAULTSORT:Fox V. Franken}} [[Category:2003 in United States case law]] [[Category:Fox News criticisms and controversies]] [[Category:United States District Court for the Southern District of New York cases]] [[Category:United States trademark case law]] [[Category:20th Century Fox litigation]] [[Category:Al Franken]] [[Category:Fox Corporation litigation]] [[Category:Penguin Books]]