''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

civil lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

filed in the

United States District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...

on August 7, 2003. Fox News Channel, the plaintiff, sought to

enjoin An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...

Al Franken Alan Stuart Franken (born May 21, 1951) is an American comedian, politician, media personality, and author who served as a United States senator from Minnesota from 2009 to 2018. He gained fame as a writer and performer on the television comed ...

from using Fox News's

trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from othe ...

phrase "fair & balanced" in the title of his then-forthcoming book, '' Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right''. Judge

Denny Chin Denny Chin (陳卓光; born April 13, 1954) is a Senior United States circuit judge of the United States Court of Appeals for the Second Circuit, based in New York City. He was a United States District Judge of the United States District Court f ...

denied Fox's motion for injunction on August 22, and the network dropped the suit three days later.

Background

Rupert Murdoch Keith Rupert Murdoch ( ; born 11 March 1931) is an Australian-born American business magnate. Through his company News Corp, he is the owner of hundreds of local, national, and international publishing outlets around the world, including ...

News Corporation News Corporation (abbreviated News Corp.), also variously known as News Corporation Limited, was an American multinational mass media corporation controlled by media mogul Rupert Murdoch and headquartered at 1211 Avenue of the Americas in New ...

had founded Fox News Channel in 1996, in part to counter what it contended was systemic left-wing

bias Bias is a disproportionate weight ''in favor of'' or ''against'' an idea or thing, usually in a way that is closed-minded, prejudicial, or unfair. Biases can be innate or learned. People may develop biases for or against an individual, a group ...

on the part of other U.S. news outlets. To bolster this perception, Fox used "Fair & Balanced" and "We Report. You Decide." as slogans, and obtained federal trademark registrations for each. Critics such as FAIR and

Media Matters for America Media Matters for America (MMfA) is a politically left-leaning 501(c)(3), nonprofit organization and media watchdog group. MMfA was founded in 2004 by journalist and political activist David Brock as a counterweight to the conservative Media ...

have accused Fox of having a pervasive

conservative bias Media bias is the bias of journalists and news producers within the mass media in the selection of many events and stories that are reported and how they are covered. The term "media bias" implies a pervasive or widespread bias contravening of ...

; on many

Web site A website (also written as a web site) is a collection of web pages and related content that is identified by a common domain name and published on at least one web server. Examples of notable websites are Google, Facebook, Amazon, and Wikip ...

s and

blog A blog (a truncation of "weblog") is a discussion or informational website published on the World Wide Web consisting of discrete, often informal diary-style text entries (posts). Posts are typically displayed in reverse chronological order s ...

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-SPAN2 Cable-Satellite Public Affairs Network (C-SPAN ) is an American cable and satellite television network that was created in 1979 by the cable television industry as a nonprofit public service. It televises many proceedings of the United States ...

broadcast a panel discussion on political books that was taking place at

BookExpo America BookExpo America (commonly referred to within the book publishing industry as BEA) was an annual book trade fair in the United States. BEA is almost always held in a major city over four days in late May and/or early June. Nearly all significan ...

, 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, 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 ''Inside Edition'' is an American news broadcasting newsmagazine program that is distributed in first-run syndication by CBS Media Ventures. Having premiered on January 9, 1989, it is the longest-running syndicated-newsmagazine program that is no ...

'', a show that he had formerly worked for, had won two Peabody Awards, when it in fact won a

Polk Award The George Polk Awards in Journalism are a series of American journalism awards presented annually by Long Island University in New York in the United States. A writer for Idea Lab, a group blog hosted on the website of PBS, described the awar ...

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

federal question In United States law, federal question jurisdiction is a type of subject-matter jurisdiction that gives United States federal court The federal judiciary of the United States is one of the three branches of the federal government of the Unit ...

grounds. In what author and editor

Richard Blow Richard Bradley (born Richard Blow; 1964) is an American writer and journalist. Life and career Bradley graduated from Yale University in 1986, and began working at ''The New Republic'' in Washington, D.C., followed by ''Regardie's'' magazine. He ...

described as "an eight-inch thick legal filing," 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 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. 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 Amazon.com, Inc. ( ) is an American multinational technology company focusing on e-commerce, cloud computing, online advertising, digital streaming, and artificial intelligence. It has been referred to as "one of the most influential econo ...

's best-seller list from number 489 (his second #1 bestseller after ''

Rush Limbaugh Is a Big Fat Idiot and Other Observations #REDIRECT Rush Limbaugh Is a Big Fat Idiot and Other Observations {{R from other capitalisation ...

'', which attained the top of the ''

New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...

list in 1996). On August 22, U.S. District Court judge

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, 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 David Shepard Smith Jr. (born January 14, 1964) is an American broadcast journalist. He served as chief general news anchor and host of ''The News with Shepard Smith'' on CNBC, a daily evening newscast launched in late September 2020; but his p ...

were waiting for a hotel 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

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.
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.
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.
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.
SO ORDERED. 2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254 (2003)

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 Penguin Group is a British trade book publisher and part of Penguin Random House, which is owned by the German media conglomerate Bertelsmann. The new company was created by a merger that was finalised on 1 July 2013, with Bertelsmann initi ...

(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. 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 AlterNet is a left-leaning online news outlet. It was launched in 1997 by the Independent Media Institute. In 2018, the website was acquired by owners of '' Raw Story''. Coverage Coverage is divided into several special sections related to progr ...

, filed a petition to cancel the trademark in the

U.S. Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alexa ...

Trademark Trial and Appeal Board The Trademark Trial and Appeal Board (TTAB) is an administrative tribunal within the United States Patent and Trademark Office (USPTO). The TTAB is empowered to determine the right to register a trademark. It has no authority to determine the righ ...

, calling it "notoriously misdescriptive." The Institute and Fox settled in 2005, and the TTAB accordingly dismissed the petition

without prejudice Prejudice is a legal term with different meanings, which depend on whether it is used in criminal, civil, or common law. In legal context, "prejudice" differs from the more common use of the word and so the term has specific technical meanings. ...

. In 2004, Franken began hosting a talk show, originally titled ''The O'Franken Factor'', on the

Air America Radio Air America (formerly Air America Radio and Air America Media) was an American radio network specializing in progressive talk radio. It was on the air from March 2004 to January 2010. The network was founded as a left wing alternative to counter ...

network. The program's title was a jab at Bill O'Reilly's show, named ''

The O'Reilly Factor ''The O'Reilly Factor'' (originally titled ''The O'Reilly Report'' and also known as ''The Factor'') is an American cable television news and talk show. ''The O'Reilly Factor'' first aired in the United States on Fox News Channel on October 7 ...

''. Franken said that he chose the name to "annoy and bait" O'Reilly into filing another lawsuit. Three months later, Franken changed the name to ''

The Al Franken Show ''The Al Franken Show'' was the flagship talk show of the former talk radio network, Air America Radio. Hosted by Al Franken, it featured commentary and interviews arguing for liberal positions on the issues of the day, and comically poking f ...

'', which he hosted until 2007, when he announced his candidacy for a

United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and pow ...

seat in

Minnesota Minnesota () is a state in the upper midwestern region of the United States. It is the 12th largest U.S. state in area and the 22nd most populous, with over 5.75 million residents. Minnesota is home to western prairies, now given over to ...

that was to be challenged in 2008. Franken served as a U.S. Senator until January 2, 2018 when he resigned due to

sexual misconduct allegations Sex is the biological distinction of an organism between male and female. Sex or SEX may also refer to: Biology and behaviour *Animal sexual behaviour **Copulation (zoology) **Human sexual activity **Non-penetrative sex, or sexual outercourse * ...

. The case was documented as part of The First Amendment Project.

References

External links