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Roger Ailes’s ‘Fair and Balanced’ lawsuit against Al Franken seems stupid — until you take a closer look
BY DAN KENNEDY
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ROGER AILES, the former Republican politico who created the Fox News Channel, surely knows all about unintended consequences. Yet the way his silly lawsuit against political satirist Al Franken has played out was so utterly predictable that all you’re left with are questions. Was this a monumental misjudgment by someone who’s ordinarily regarded as one of the shrewdest operators in the business? Or is this exactly what Ailes had intended? Consider what has happened since August 12, when a snickering news media reported that Fox News was suing Franken for infringing on its trademark for the phrase "fair and balanced" in the title of Franken’s new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right (EP Dutton). • The book immediately shot to the upper reaches of Amazon.com’s sales rankings, even though it won’t be released until September 22. As of this past Tuesday, it was number six, after briefly hitting the top spot last week. And no, it didn’t do this well on its own merits. According to the Washington Post, it was number 489 before news of Fox’s suit became public. • Ailes and company have been ripped not just by the so-called liberal media, but by their ideological soul mates as well. On August 15, the Wall Street Journal’s ultraconservative editorial page published a piece that began "It’s not easy siding with Al Franken," and then proceeded to do just that. The Journal observed that "the First Amendment does not distinguish between the boorish and the brilliant, and even if Mr. Franken is all the things that the Fox suit accuses him of being, he remains as entitled as any other American to its protections." • Spurred on by well-known webloggers Neal Pollack (www.nealpollack.com) and Atrios (atrios.blogspot.com), hundreds of weblogs have added the phrase "fair and balanced" to their titles. Pollack — an author who runs with the McSweeney’s crowd — now labels his blog "The Fair and Balanced Voice of the True American Spirit." Other well-known Fair and Balanced blogs include InstaPundit (www.instapundit.com), Tom Tomorrow (www.thismodernworld.com), someone who claims to be named Roger Ailes (rogerailes.blogspot.com; "More fair and balanced than the head clown at the Fox News Circus"), and the Daily Kos (www.dailykos.com). Even though blogging’s "Fair and Balanced Day" was supposed to be August 15, the list continues to grow this week; you can find a compilation at www.blah3.com/graymatter/archives/00000420.html. "I think it’s terrific to see this type of uprising — those who get the ’Net know that a burst of public outrage can have more effect than a legal claim," Wendy Seltzer, a staff attorney for the Electronic Frontier Foundation, told me in an e-mail. "Whatever the merits of Fox’s claim, the television network has been made to look silly in the eyes of hundreds of thousands of Internet users." Now, all this looks bad for Ailes, the sort of matter that would drive an ordinary person to stay in bed, hiding under a pillow and telling his increasingly frantic mother to just go away. But as I said, there is nothing surprising about what has happened. This was guaranteed to make Franken look like a free-speech hero and Fox like a bully — and a stupid one at that. Of course, everyone knows that Roger Ailes isn’t stupid. So how do we explain this descent into self-destructive weirditude? EMILY ROONEY, the host of Greater Boston (WGBH-TV, Channels 2 and 44), thinks it may be rage — pure, blind rage. Last Friday, on Greater Boston’s "Beat the Press" show (I was a panelist), Rooney — who did a stint working for Fox News around the time of its mid-’90s launch — offered her own theory as to what was behind the Al Franken suit. "I know Roger Ailes pretty well," she said. "I can picture him getting up a head of steam over this. He used to call these staff meetings in the middle of the night — ‘Everybody be here at 3 a.m.’ — seriously — and he’d get 40 people around in a room, and he’d start berating somebody about something. I can just see him doing that, saying, ‘We’re gonna take him on, we’re gonna take him on.’ He’s a guy with a huge sense of humor. At the same time he’s got the anger that mitigates that." Sounds like a great guy to work for, doesn’t he? That "huge sense of humor" must come in handy at those 3 a.m. staff meetings. That’s a good one, boss. Ha, ha! Rooney may be on to something, though. The wording of the suit appears calculated not just to prevent Franken and his publisher from using the phrase "fair and balanced" in the book title, but to insult, to disparage, to inflict emotional distress. The suit describes Franken as "unstable," "shrill," "intoxicated," and "deranged"; as a "C-level commentator" who is "not a well-respected voice in American politics." I asked another ex–Fox Newsie, business consultant and former Boston Globe columnist John Ellis, what he thought was behind the suit. "I may be one of the few people who’s a friend of both guys," Ellis told me before conceding: "It beats the hell out of me. I don’t know." One theory, though, is that this is less about Ailes than it is about Bill O’Reilly, the puffy-faced populist who is Fox’s number-one ratings star, and who has something of a history with Franken. On May 31, O’Reilly and Franken went at it hammer and tongs during a booksellers convention, with Franken accusing O’Reilly of having wrongly claimed that a show he used to anchor, Inside Edition, had won a Peabody Award. O’Reilly grumpily conceded that Franken was right, but was nitpicking: Inside Edition had actually won a Polk, not a Peabody. But it also turned out that the honor came only after O’Reilly had quit the show, which he hadn’t always been clear about in past boasts about the "Peabody," and which might strike a fair-and-balanced critic as being relevant. Moreover, Franken’s book cover includes a few touches guaranteed to make O’Reilly see red. For one thing, it bears some resemblance to O’Reilly’s book The O’Reilly Factor: The Good, the Bad, and the Completely Ridiculous in American Life. For another, O’Reilly’s photo appears just below the word "Lies" and just above "Lying" — although, in truth, he doesn’t appear to have been singled out for any more grief than fellow cover models George W. Bush, Dick Cheney, and Ann Coulter. The Los Angeles Times reported last week that O’Reilly had "lobbied strongly for the lawsuit," a claim the paper attributed to "people familiar with the situation." A bit hazy, perhaps, but O’Reilly himself sharpened it in a commentary that he wrote for his Web site (www.billoreilly.com), in which he angrily noted that a New York Times editorial had defended Franken’s right to use "fair and balanced" as satire. "It is simply a sorry joke to see a political activist like Al Franken labeled a ‘satirist’ by The New York Times," O’Reilly wrote. "Attempting to smear and destroy the reputations of those with whom you politically disagree is not satire." And: "It makes me sick to see intellectually dishonest individuals hide behind the first amendment to spread propaganda, libel and slander." And: "I wonder how the Times’ editorialists would react if their faces graced a book cover accompanied by the word ‘liar.’ Oh that’s right, they’d consider it ‘satire.’" Sounds like the LA Times’ sources know what they’re talking about. THIS PAST JANUARY the New York Times published a story about Kembrew McLeod, a professor at the University of Iowa and a free-speech activist. McLeod, who had trademarked the term "freedom of expression" in 1998, sent a cease-and-desist order to AT&T, which was using the phrase in an advertising campaign. McLeod publishes a newsletter called Freedom of Expression, and he charged that the public might wrongly assume there was a link between the two. The article made it clear that McLeod wasn’t all that serious. He’s an anti-corporate activist, and he was taking advantage of the moment in order to tweak a corporate giant. But his story points out a truth about trademark law. Though Fox’s suit against Franken may indeed be frivolous, it may not be quite as frivolous as a lay person might assume. Don’t think that Fox will lose because a generic-sounding, descriptive phrase such as "Fair and Balanced" can’t be trademarked. It can. Fox really did obtain trademark protection for the phrase in 1995, just as Kembrew McLeod really trademarked "freedom of expression." It’s not that such phrases can’t be protected; it’s that they can be protected only for certain specific reasons. Fox may not have a case this time. But it might the next time. "I have just had hours of laughter over this stupid lawsuit," says Susan Richey, a professor at Franklin Pierce Law Center, in Concord, New Hampshire, who specializes in intellectual property. So how stupid is it? Well, maybe not really all that stupid. "Bottom line, certainly ‘fair and balanced’ can be a trademark to denote news services offered by Fox," she explains. And the phrase can’t be used by a competitor. In other words, if CNN started to call itself "fair and balanced," Fox would have a strong case, even though it’s a common phrase that’s been used for generations to describe good journalistic practices. "I’m a fairly regular viewer of Fox News, and they use it in a very legitimate trademark sense. I understand it to be a brand of news media. I’m not troubled by that," Richey says. (For that matter, Kembrew McLeod would have a case if anyone started a competing newsletter and tried to call it Freedom of Expression.) Richey explains there are several reasons why Fox’s suit against Franken is "stupid," mainly revolving around the fact that his book is intended as "satire" and "social commentary." She adds: "I find it hard to believe that anyone could look at the title of that book and not know what’s going on here." Any journalist who has paged through a trade magazine such as Editor & Publisher has seen ads placed by companies — the paradigmatic example would be Xerox — pleading with reporters and editors not to use their name generically, as in, "Please xerox that stack of documents." That’s because under trademark law, a word or phrase can lose its legal protection if it can be shown to have entered the public domain. On Fox News Watch this past Saturday, for instance, pundit Jim Pinkerton defended the Franken suit, saying that "obviously it’s going to sell a lot of books for Franken, so it’s a case of either you defend yourself or you let ‘Fair and Balanced’ just slip into the public domain, like ‘elevator’ and ‘cellophane’ and so on." Pinkerton apparently meant "escalator," which at one time was protected under a trademark obtained by Otis Elevator Company. Either way, though, he made his point. How many people even know that "escalator" used to be a trade name? I didn’t. Otis has long since lost its exclusivity, and thus any profits that would have gone with that exclusivity. Which brings me back to my original question: what was Roger Ailes thinking? As John Ellis said, it beats the hell out of me. But think about what Ailes stands to gain. He’s garnered a vast amount of publicity for Fox News, which already holds a huge lead in the ratings over its competitors, CNN and MSNBC. He’s thrown a bone to his biggest star, Bill O’Reilly. He’s sent the strongest possible signal that he’ll do whatever it takes to defend his "Fair and Balanced" trademark. If he pursues the case, he’ll lose — but a competitor will think twice before trying to claim "Fair and Balanced" as its own. He’s guaranteed bestsellerdom to Franken — but, more important, he’s promoted Franken as an enemy, as someone whom Fox’s right-wing talk-show hosts can bash night after night after night without first having to explain who he is. And for Fox, a network that thrives by playing to its viewers’ sense of persecution and paranoia, enemies are important. What has he lost? A little bit of face. If that. All in all, not a bad week’s work. Dan Kennedy can be reached at dkennedy[a]phx.com Read his Fair and Balanced™ Media Log at BostonPhoenix.com.
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