August 14, 2003
"Don't Use Those Words: Fox News Owns Them"--A Commentary by Prof. Jack Balkin
(This essay originally appeared in the August 14, 2003, edition of the Los Angeles Times.)
Don't Use Those Words: Fox News Owns Them
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment
Fox News is suing comedian and writer Al Franken in the New York courts, attempting to stop the sale of his forthcoming book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Fox claims that Franken may not use the expression "fair and balanced" because it has been trademarked by Fox News and that Franken's book would confuse viewers about the source of the book and about the objectivity of Fox's coverage.
The court papers filed by Fox are particularly colorful, describing Franken as a "parasite," "shrill and unstable" and as a person whose "views lack any serious depth or insight." It also accuses him of attacking Fox news personalities when he was either "intoxicated or deranged" at a press correspondents' dinner in April 2003.
Because Franken's obvious purpose is political parody and satire and, in particular, parody of Fox News among others, the lawsuit should not succeed.
Fox may well argue that Franken's parody tarnishes its business and its mark, but the whole purpose of political parody is to poke fun at people one disagrees with. If Franken may not use the expression "fair and balanced" in a book that accuses Fox News of failing to be "fair and balanced," there is something seriously wrong with trademark law under our 1st Amendment. And if Fox can get an injunction preventing the sale of the book, we can be sure that the expansion of intellectual property rights has gone too far.
The most troubling aspect of the lawsuit is its attempt to harass a political opponent through the use of intellectual property laws. Fox News vs. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property rights.
Trademark, like copyright, has now become a general-purpose device for private parties to use when they want the state to suppress speech they do not like. And they are trying to suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements as well. This is a misuse of trademark, which is designed to protect ongoing commercial interests, and it is a misuse of copyright, which is designed to promote progress in ideas, not inhibit robust debate about ideas.
Fox will richly deserve the bad press it's going to get for filing this lawsuit, first, for being on the wrong side of a free speech controversy and, second, for attempting to squelch criticism of its coverage of the news. It is egregious for a news organization to try to use the courts to harass its political critics.
In 1964, at the height of the civil rights movement, an Alabama police commissioner, L.B. Sullivan, tried to use the state's libel laws to shut down the New York Times for publishing an advertisement that condemned racial discrimination in the South and implicitly criticized him.
The Supreme Court wisely decided that protection of an individual's reputation had to yield to the promotion of "uninhibited, robust and wide-open" debate in a democracy. Its decision in New York Times vs. Sullivan established that free speech was protected even if it included "vehement, caustic, and sometimes unpleasantly sharp attacks."
Now Fox News is trying to circumvent that rule by claiming not that Franken is defaming it but that Franken is stealing and misusing the words "fair and balanced," which Fox News claims to own. But no one should own the words necessary to engage in public protest.
It's time for the courts to consider whether trademark law, like defamation law before it, needs greater constitutional boundaries to protect robust debate. Throwing out Fox's lawsuit would be a good first step.
Jack M. Balkin teaches constitutional law at Yale Law School.