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In August of 2003, Fox News announced that they were suing Al Franken and his publisher for trademark infringement. Franken's upcoming book is called "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right". This is comparable to a restaurant that claims to have "the best burger in town" suing someone who writes a song that includes the phrase "the best burger in town."

Also note that Franken writes about Fox and O'Reilly a great deal in his book, and his use of the phrase will probably be considered nominative fair use.

While liberals have predictably flocked to Franken's defense, so have conservatives such as Glenn Reynolds. Conservative internet gossip maven Matt Drudge claims that the lawsuit was filed at the direction of Fox star Bill O'Reilly as revenge for Franken having embarrassed O'Reilly on CSPAN's "Booknotes" program by pointing out that O'Reilly lied repeatedly about having won several prestigious industry awards even after the organizations that hand out the awards had pointed out the fallacy.

Jon Stewart on the Daily Show probably put it best. "Fox News has filed suit against political satirist Al Franken over use of the phrase 'Fair and Balanced'. Huh? You're kidding me! I don't know what to say. I'm Shocked and A..., no I'm... Dazed and C...... um.... I know! I'm Confounded and Bewildered! (Announcer: Confounded and Bewildered is a registered trademark of Jon Stewart and Comedy Central)".

Ultimately, the strategy of attempted prior restraint may backfire, in that the day after the suit was announced, Franken's book shot up in Amazon's salesrank from somewhere in the 400's to number 1. For a book that doesn't come out for a month and a half by an author that probably 50% of Americans couldn't pick out of a lineup, that's not bad. Bloggers on the left and right (and unaligned) have taken to using the phrase "Fair and Balanced" as much as possible on their websites.


koreykruse notes that the most likely reason the suit will fail is that satire is protected (see: Flynt-v-Falwell. This is quite true.

Update: The judge announced that "there are hard cases, and there are easy ones. This one is easy". He found the suit to be totally without legal or factual merit. Leading many to suggest that Fox to adopt a new tagline: Totally without merit.

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