Thursday, August 14, 2003


The Top Ten Theories About What Caused the East Coast Power Blackout

10. Governor Gray Davis wanted to show that California's mess wasn't really his fault: see, there were blackouts on the East Coast too!

9. Overstressed computers in West Coast attempting to tabulate all the candidates for California Governor.

8. Osama bin Laden and his compatriots check into a motel in New Jersey and turn up the air conditioning *really* high.

7. All innocent persons on death row in Texas prison system electrocuted at once.

6. Justice Antonin Scalia seeks return to original conditions when Constitution was written.

5. Department of Homeland Security seeks to confuse terrorists by hiding location of New York City.

4. Liberal paranoia comes true as country is returned to Dark Ages.

3. Latest new excuse by Bill Clinton to explain to Hillary why he can't make it home for dinner.

2. President Bush attempts to divert electricity from middle class to the wealthiest 1 percent.

1. Fox News sues Con Edison for trademark infringement for using the word "con."

UPDATE: As a former member of the U.T. Austin law faculty, I am of course, aware that Texas uses lethal injection instead of electrocution. Texas formally switched over (pardon the pun) around 1977, but didn't execute anyone that way until 1982, I believe. But please remember that Top Ten Lists are not supposed to be taken seriously as statements of fact, as opposed to, say, Fox News. Well, ok, maybe I should have picked a better example....


More on Fox News v. Franken

The complaint in the case appears here (via Talk Left). Floyd Abrams will represent Franken's publisher, Penguin Books, suggesting that a first amendment defense is likely. The complaint argues that the book cover might mislead consumers into thinking that Franken is associated with Fox News (not very plausible) or that the book cover might tarnish Fox's mark and its good will (more plausible).


Sauce for the Gander

John Jenkins wants to know whether I believe that a trademark suit by CNN against Ann Coulter claiming that Coulter's new book "Treason" infringed or diluted a CNN trademarked slogan would raise the same first amendment issues and whether I would also criticize CNN for suing Coulter to suppress her book. Well, of course it would raise the same issues, John, and of course I would also criticize CNN, who, like Fox News, should know better. I don't much like prior restraints against books, period, whether they are conservative books or liberal books. My point has been that mass media corportations, whether tilting to the left or to the right, simply have taken intellectual property rights much too far, and in the process, they have infringed on basic liberties of freedom of expression. The growing conflict between intellectual property and free speech is not (as far as I am aware) a left/right issue, and it is an issue about which many liberals and libertarian conservatives alike are quite concerned.

Wednesday, August 13, 2003


President Bush Criticizes Fox News Lawsuit Against Al Franken

"The unpredictability of our liability system means that even frivolous cases, even what we call junk lawsuits, carry the risk of enormous verdicts." Bush told a crowd in Greensboro, N.C.

Oh, wait, I have been informed that this was a speech about misusing the legal system to harass doctors, not misusing the legal system to harass critics of conservative news organizations.

Balkinization apologizes for the error.

No, wait, the White House did come out in favor of legislation that "would help prevent abuse of the legal system and help curb the growing problem of frivolous lawsuits in the United States.''

Ooops, no, it turns out that was a bill to prevent abuse of the legal system to shut down gun manufacturers, not abuse of the legal system to shut down critics of conservative news organizations.

Once again, Balkinzation apologizes for the error.


A Fair and Balanced Attempt at Censorship

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.