an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Fox News is suing Al Franken in the New York courts, attempting to enjoin sales 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. According to the New York Times' report of the case, the court papers are particularly colorful, describing Franken as a "parasite," "shrill and unstable," and a person whose "views lack any serious depth or insight." It also accuses him of being either "intoxicated or deranged" at a press correspondents' dinner in April 2003.
Because Franken's obvious purpose is political parody, and, in particular, parody of Fox News itself, among others, Fox's lawsuit should not succeed. That is true even if Franken is selling his book to make money. Fox may well argue that the 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 to accuse Fox News of failing to be "fair and balanced," there is something seriously wrong with trademark law under our First 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 politically is its attempt to harass a political opponent through the use of intellectual property laws. Fox News v. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property. Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like. And they can 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.
We can only hope that Fox receives the bad publicity it deserves for filing this lawsuit; first, for being on the wrong side of this free speech controversy, and second, for trying to suppress people who disagree with its coverage of the news. It is particularly upsetting for a news organization to try to use the courts to suppress the speech of its political critics.
In 1964, at the height of the civil rights movement, an Alabama commissioner, L.B. Sullivan, tried to use the state's libel laws to shut down the New York Times for its publication of an advertisement that criticized racial discrimination in the South. The Supreme Court wisely decided that the interest in reputation had to yield to the promotion of "uninhibited, robust, and wide-open" debate in a democracy. Its decision in New York Times v. Sullivan established that free speech is protected even if it includes "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" that Fox News claims to own. But no one should own the words necessary to engage in public protest. It is high time for the courts to consider whether trademark law, like defamation law before it, needs greater constitutional boundaries to protect robust debate about public issues from those who would abuse their rights in intellectual property.
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