and the analog past
AFTERWORD FREEDOM OF EXPRESSION®
328
Acknowledgments 335
Notes 340
Bibliography 350
Index 365
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 1
INTRODUCTION
In 2003 Fox News sued Al Franken and his publisher,Penguin,for naming his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The veteran satirist, who had publicly quarreled with Fox News host Bill O’Reilly in the months leading up to the book’s release, used the news channel’s slogan “Fair and Balanced” in the title. The company claimed this use trespassed on its intellectual property. By associating Al Franken’s name with Fair and Balanced®, the Fox lawyers argued, it would “blur and tarnish” the good reputation of the trademark. The suit went on to state that Franken “appears to be shrill and unstable.” He was also described in the lawsuit as “increasingly unfunny,” a charge Franken responded to by saying that he had trademarked “funny” and was considering a countersuit.
Later that week on his daily radio talk show, O’Reilly grew testier, lashing out at Franken and his alleged theft. Despite O’Reilly’s blus-ter and the earnest legal arguments of Fox’s lawyers—who drew laughter from the courtroom when they advocated their indefensi-1
McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 2
2
FREEDOM OF EXPRESSION®
ble position—U.S. District Judge Denny Chin dismissed the injunction against the book. “There are hard cases and there are easy cases,” Chin stated. “This is an easy case in my view and wholly without merit, both factually and legally.” The O’Reilly-Franken dustup was the prelude to an increasingly aggressive trademark rampage. That year, the news channel threatened to sue a Web-site outfit that was selling a satirical T-shirt that mimicked its logo with the words “Faux News” and tweaked its motto: “We distort, you comply.” It also targeted The Simpsons (which airs on its sister network) for parodying the news channel’s right-wing slant. During one episode, the cartoon imitated the Fox News ticker, running crawling headlines such as “Oil slicks found to keep seals young, supple” and “Study: 92 percent of Democrats are gay.”
Fox News eventually backed down, opting not to file a lawsuit against the show. “We called their bluff,” said Matt Groening, The Simpsons’ creator, “because we didn’t think Rupert Murdoch would pay for Fox to sue itself. So we got away with it.” It’s probably the first time that media consolidation has actually enabled freedom of expression®. Still, The Simpsons writers got a slap on the wrist by the parent company when it imposed a rule that the cartoon could no longer imitate news crawls. “It might confuse the viewers into thinking it’s real news,” Groening drily noted. As for the Web site that sold the “Faux News” T-shirt, Fox News dropped its threat after the American Civil Liberties Union intervened on its behalf. The ACLU sent Fox a “ ‘get stuffed’ letter,” as the site’s operator Richard Luckett put it.1
“Blur and tarnish,” the choice of words used by Fox’s lawyers in the Franken case, might sound absurd to the average person, but it’s the language of trademark law. Unlike copyright law, which protects creative works such as books and movies, and patent law, which covers inventions and the like, trademark law is designed to McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 3