Fox / Franken suit

[Geoffrey Nunberg]

>---------------------- Information from the mail header
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>Sender:       American Dialect Society <ADS-L at LISTSERV.UGA.EDU>
>Poster:       Barnhart <ADS-L at HIGHLANDS.COM>
>Subject:      Fox / Franken suit
>-------------------------------------------------------------------------------
>
>In Tuesday's NYT under "Metro Briefing" the paper reports that Fox News
>Network decided to drop its complaint.  Just for the record.  This is
>probably a response by foolishly motivated executives to follow the
>advice of their lawyers.  Judge Denny Chin dismissed their request for
>an injunction.  Sometimes wisdom shines through the muck of dispute.
>
>Regards,
>David
>barnhart at highlands.com

Ben McGrath suggested in the New Yorker that Fox and its lawyers knew
the suit was a loser but filed it at the insistence of Bill O'Reilly.

Geoff Nunberg

JURISPRUDENCE
THE O¹REILLY FACTOR
by Ben McGrath
Issue of 2003-09-01
Posted 2003-08-25


"Where¹s the Beef? The Mad Cow Disease Conspiracy.² ³Positive
Discipline: Don¹t Leave Home Without It.² ³The O¹Reilly Factor: The
Good, the Bad, and the Completely Ridiculous in American Life.² These
were among the more than a hundred book titles introduced in federal
court at the end of last week as part of an amicus brief filed by the
Authors Guild in defense of the comedian Al Franken and his
publisher, Penguin, in this summer¹s most celebrated trademark
infringement case, Fox News v. Franken.

It hardly seemed necessary, given that Fox¹s request for a
preliminary injunction against Franken¹s new book, ³Lies and the
Lying Liars Who Tell Them: A Fair and Balanced Look at the Right,²
had been widely ridiculed for its legal shortcomings and tactical
wrongheadedness. Fox¹s ostensible objection was to Franken¹s use of
the phrase ³fair and balanced² (a company-owned trademark since
December, 1998) in his subtitle and of the Fox News personality Bill
O¹Reilly¹s face on the cover; supposedly, consumers might be deceived
into thinking the book was Fox-friendly. But the language in the
complaint‹it characterized Franken as ³increasingly unfunny,² ³shrill
and unstable,² and possibly even ³deranged²‹suggested that what Fox
(or O¹Reilly) really objected to was Al Franken himself. At any rate,
the suit was a boon to the book, which shot up to No. 1 (from No.
489) on Amazon¹s best-seller list, and an embarrassment to Fox. On
Friday afternoon, in U.S. District Court in lower Manhattan, Judge
Denny Chin listened with mounting impatience as Fox¹s counsel
dutifully presented its oral argument, and then quickly ruled against
the network: ³There are hard cases and there are easy cases,² Chin
said. ³This is an easy case, in my view, because it is wholly without
merit, both factually and legally.²

So what was Fox thinking? Old Hollywood hands ought to know. They
might recognize, in the extravagance and folly of a flimsy lawsuit,
the telltale signs of an appeasement gift, a sop to a sulking
star‹the sulker, in this case, being Bill O¹Reilly, the top-rated
anchor on cable.

O¹Reilly, of course, is the commentator known for shouting ³Shut up!²
at those with whom he disagrees‹such as Jeremy Glick, the son of a
World Trade Center victim, who, on ³The O¹Reilly Factor² in February,
questioned the U.S. decision to wage war in Afghanistan (³Get out of
my studio before I tear you to fucking pieces!² Glick recalls
O¹Reilly shouting after the microphones were turned off), or, indeed,
Al Franken, in a memorable televised exchange at the Los Angeles Book
Exposition, in May. The Book Expo was where O¹Reilly first learned
that he was one of the subjects of ³Lies and the Lying Liars²
(Chapter 13 is titled ³Bill O¹Reilly: Lying, Splotchy Bully²) and saw
his likeness on a mockup of the book¹s cover. ³Somebody calls you a
liar to your face, you don¹t just laugh that off,² O¹Reilly said
afterward on his radio show. ³In the Old West that would have got you
shot.²

According to someone close to the situation, Fox executives were not
at all in favor of suing, correctly anticipating a P.R. debacle. They
told O¹Reilly as much in a series of meetings, but he continued to
lobby aggressively for bringing a suit, pressing his case with Roger
Ailes, the Fox News chairman, and others. And so Fox enlisted its
lawyers to cobble together a complaint.

There once was a time in the industry when a fur coat or a Harry
Winston pendant was all it took to show your love and support. Not
anymore. When Robin Williams felt he¹d been undercompensated for his
role as the genie in ³Aladdin,² Disney gave him a Picasso; NBC
executives, trying to hold on to a restive David Letterman,
reportedly had the idea of giving him a Mercedes with a vanity plate
reading ³4GETCBS.² Bill O¹Reilly might be setting a new standard for
placation presents. Take back your mink, your diamonds, and your
pearls. For a real star, only a preliminary injunction will do.