Free, fair, and balanced legal advice to Fox

I'm normally something of a fan of Fox News.  But as my revised masthead{note1} indicates, today BeldarBlog joins the growing number of blogs that seek to ... ummm, I guess the word I'm looking for is "ridicule" the lawsuit Fox News has chosen to file against Al Franken over his soon-to-be published book.

It's an uncommonly silly lawsuit.

(Bonus points for those who can cite the case and Supreme Court justice I just paraphrased.)

But we report, you decide:

I've always thought the "fair and balanced" slogan was a bit inapt anyway.  Maybe, instead, they should go with "Pleasantly slanted just enough to counter any one liberal network of your choice, you pick 'em."  After all, that's why I watch Fox from time to time in addition to CNN.  It's why I read the Wall Street Journal in addition to the Washington Post (among several others). 

If a newspaper or a TV network or a blog ever actually achieved the "fair and balanced" state of equilibrium, it'd be a statistical fluke with the half-life of one of those subatomic particles that only exists in a cyclotron.

We're each the product of our life experiences, and therefore bring biases to every new situation.  That can't be helped, although it can be acknowledged and, sometimes when need be, pointed out and moderated.  Heck, when I'm trying to pick a jury, I start off knowing that there's zero possibility of getting jurors who are actually unbiased — there's no such thing!  All I can hope for are some whose biases aren't so strong that they'll tune out everything they hear from me, the judge, and the witness stand.  And then I hope that they'll do their best, and mostly succeed, at making their decision based on that, rather than based on their biases.

In a serious post recently, I had occasion to blog about the twin and different duties that a trial lawyer owes his clients — as a public advocate in court, and as a private counselor behind closed doors.  Protecting that important second function is, for example, why there's such a thing as attorney-client privilege.

And in my not-so-humble, admittedly biased, and very amused opinion, someone at whatever outside law firm is representing Fox must have seriously dropped the ball as a counselor. 

This case is borderline litigation abuse.  And strategically, it's colossally stupid.  Whoever signed the complaint that initiated this lawsuit should have sat down first with the decision-makers at Fox and had what trial lawyers (even the Jewish ones I know) call "the come-to-Jesus meeting": 

"Look, guys, I love you, you're a great client, I'm with you 100 percent, but I've been a lawyer for 23 years, and you hired me not just to kick the holy snot out of your opponent, but to keep you from stepping on your genitals.  This lawsuit would be a mistake from a legal and a marketing perspective.  Don't do it, please.  I refuse to be a party to this nonsense.  I hope you'll change your mind, but regardless, I'm not going to sign this pleading."

That's what I'd have told 'em anyway.  And I'm actually not fair and balanced, I'm as mean and as rock-ribbed conservative-bordering-on-crackpot as they come.  But it's still good advice.  And it's free!

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UPDATE (Aug 15, 2003):

The complaint was filed by Hogan & Hartson in the state-court system of New York.  (The trial-level courts in New York are confusingly named "Supreme Courts" — OMG, I've just been hit with an inspiration for a Lanham Act lawsuit, if only I can persuade Chief Justice Rehnquist to hire me!  And if Bob Crane were still alive, maybe I could ... naw, guess not.)

Hogan & Hartson describes itself as a "the oldest and the largest major law firm based in Washington, D.C.," with close to 1000 lawyers scattered about offices all over the world.  The complaint is signed by one "Dori Ann Hanswirth," a partner in the firm's intellectual property section with a cum laude degree from Cardozo Law School in 1986 and a federal district court judicial clerkship among her accomplishments.

These facts, IMHO, make it all the more reprehensible for Fox to have filed this lawsuit, because this caliber of lawyer and law firm should know better.

The key allegation is that Franken and his publisher "seek to exploit Fox News' ["Fair & Balanced"] Trademark, confuse the public as to the origin of the book, and accordingly boost sales of the book," thereby raising legal claims for trademark infringement and unfair competition under the Lanham Act and New York state common law. 

Among Fox's commercial interests listed as being threatened by Franken's book are the Fox News coffee mugs bearing the slogan:  "Balance is Important in News and Hot Coffee."  So too in the practice of law, Dori Ann!

The best I can say about the rest of the complaint is that it appears to have been well proof-read.  I did not spot any spelling errors.  It does, however, contain quite a few gratuitous insults to Franken — describing him, for instance, as "shrill and unstable," "'a C-level political commentator' who is 'increasingly unfunny,'" and — this one's simply a chin-scratcher — "neither a journalist nor a television news personality."  Last time I checked, the requirements for calling oneself either a journalist or a television news personality are rather less rigorous than the requirements for calling oneself, say, a lawyer.  It's hard for me to imagine that Fox News can prove that allegation. 

The complaint also contains a few  instances that appear to be instances of what boxing commentators and trial lawyers call, "Leading with your chin":  for example, were I representing Franken, I'd be fairly eager to find out through pretrial discovery the identity of the "commentator" who "has referred to Franken as a 'parasite' for attempting to trade off of Fox News' brand and [Bill] O'Reilly's fame in the Preliminary Cover of his Book."  If this turns out to be, say, Sean Hannity, Fox's lawyers will have succeeded in being quite a bit funnier than Franken usually is — but rather without intending to.

This lawsuit bodes ill for Fox in so many different ways, it's hard to list them all.  Were I licensed in New York and had I signed this complaint, I would be genuinely concerned that a wrathful court might sanction me — very likely by requiring me to pay Franken's legal fees out of my own pocket. 

But beyond that, Fox is very likely going to imbue Franken with a dignity that will sap its own and that he could never possibly achieve on his own.  The parallel would be if Ahh-nuld decided to concentrate his campaign rhetoric not on Gray Davis, but on Don Novello a/k/a "Father Guido Sarducci." 

Fox's lawyers are going to end up turning Franken into — dare I say it? — "Hogan's Hero"!  "Who told you Al Franken was a parasite?  Who?"  "I know nufff-ink!  I see nufff-ink!"

UPDATE (Fri Aug 22):  Fox lost round one in court.

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{note1} [I removed the "fair & balanced" phrase from my blog's subtitle in early September 2003, after the Fox lawsuit against Franken and his publishers was dismissed; the point of the parody had been made, and I don't in fact claim to be fair and balanced. — Beldar 9/9/03]