Tuesday, August 12, 2003

CNN.com - Fox sues Franken over 'fair and balanced' - Aug. 12, 2003

So far Al Franken has been unable to respond to the Fox lawsuit. Most likely he is still too hung over from celebrating the free publicity.

Any attempt to achieve prior restraint of a publication of any sort in the US is almost certain to fail. When the subject matter is political the chances are practically nil. Fox is trying to get the book blocked on the grouds that it's tagline 'a fair and balanced look at the right' infringes its trademark but reports of the lawsuit make it clear that that is not the real reason that the Fox suits are upset.

Prominent in all the media reports are complaints in the lawsuit about Franken's alleged 'misbehavior' at a litterary dinner. Specifically Franken called Fox anchor Bill O'Rielly a liar. So why not file a slander lawsuit or attempt to get the book which repeats the allegation blocked for libel? Well the problem here is that Franken's allegation is absolutely true.

O'Reilly had claimed on his show to have won a Peabody award for his previous show Inside Edition. Only problem, he didn't and the claims were made on tape and he repeated the claim after the facts had been pointed out. Inside Edition has never won a Peabody award. It won a Polk award, but not when O'Rielly was on the program. Sure you can confuse Peabody and Polk, but not when you are calling it the highest award in journalism. Its a bit like an actor claiming to have won an Oscar when in fact they only won a Golden Globe. It is just not the sort of mistake you would make if you had really won either.

So why on earth would Fox sue when this would only bring more attention to the fact their anchor is a liar and increase sales of Franken's book? Litigation is a pretty high risk strategy and it is unlikely that they will receive any sympathy in the rest of the news media (well apart from the propaganda outfits owned by Richard Scaife). The answer can be found in the comment made by O'Rielly that he would 'let the Fox lawyers handle it'.

Clearly the Fox lawyers have concluded that a libel case does not have a chance, so to keep their anchor happy they have filed a trademark lawsuit.

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