Ironic that a media company that should be fighting for the First Amendment is trying

to undermine it."

BUT IT'S FAIR AND BALANCED!


In Courtroom, Laughter at Fox and a Victory for Al Franken
By SUSAN SAULNY


federal judge in Manhattan told Fox News yesterday that it had to learn how to take a joke. Then he rejected the network's request for an injunction to block the satirist Al Franken from using the words "fair and balanced" on the cover of his book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right."

Calling the motion "wholly without merit, both factually and legally," the judge, Denny Chin of United States District Court, said that a person would have to be "completely dense" not to realize the cover was a joke, and that trademark protection for the phrase "Fair and Balanced" was unrealistic because the words are so commonly used.

Lawyers for Mr. Franken and his publisher, Penguin Group (USA), called the ruling a victory for the First Amendment. Mr. Franken was not in court.

"I never really had any doubt," he said in a telephone interview, calling the ruling "a victory for satirists everywhere, even the bad ones. In addition to thanking my own lawyers, I'd like to thank Fox's lawyers for filing one of the stupidest briefs I've ever seen in my life."

The Fox court papers had referred to Mr. Franken, a former "Saturday Night Live" writer and performer and an unabashed liberal, as a "parasite" who appeared shrill, unstable and "increasingly unfunny."

The network could appeal the decision. "We are considering our options," said Paul Schur, a Fox spokesman. "We don't care if it's Al Franken, Al Lewis or Weird Al Yankovic. We're here to protect our trademark and our talent."

If anything, the lawsuit only benefited Mr. Franken. His book had been scheduled for release in September, but the publicity caused the publisher to print an extra 50,000 copies, for a total of 435,000, and to roll the book out on Thursday.

After the ruling yesterday, it moved to the No. 1 spot on the best-seller list at amazon. com.

The network filed for the injunction on Aug. 11. Fox News Network trademarked the phrase "Fair and Balanced" in 1998 to describe its news coverage, and network lawyers claimed that Mr. Franken's use of the phrase in his book would "blur and tarnish" it.

Fox also objected to the use of a picture of Bill O'Reilly, one of its prominent news personalities, on the cover, claiming that it could be mistaken as an endorsement of the book.

But these arguments were met by laughter in the crowded courtroom, as Fox tried to defend its signature slogan. Part of the network's burden was to prove that Mr. Franken's use of the phrase "fair and balanced" would lead to consumer confusion.

One round of laughter was prompted when Judge Chin asked, "Do you think that the reasonable consumer, seeing the word `lies' over Mr. O'Reilly's face would believe Mr. O'Reilly is endorsing this book?"

The giggling continued as Dori Ann Hanswirth, a lawyer for Fox, replied, "To me, it's quite ambiguous as to what the message is here."

She continued, "It does not say `parody' or `satire.' "

Ms. Hanswirth said Fox's "signature slogan" was also blurred, because people who were not associated with the network, which owns the Fox News Channel, also appear on the cover with Mr. O'Reilly.

Judge Chin said, "The president and the vice president are also on the cover. Is someone going to consider that they are affiliated with Fox?"



The courtroom broke into laughter again.

Ms. Hanswirth replied, "It's more blurring, your honor."

After more discussion about what was and what was not satire, and about the definition of "parody," Judge Chin decided that Mr. Franken's work was of "artistic value."

"Parody is a form of artistic expression protected by the First Amendment," he said. "The keystone to parody is imitation. In using the mark, Mr. Franken is clearly mocking Fox."

He said Mr. Franken's work was "fair criticism."

Judge Chin said the case was an easy one, and chided Fox 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."

BUT IT'S FAIR AND BALANCED!