Fox News: Unfair and Unbalanced

By Don Hazen, AlterNet. Posted July 18, 2004.

As Robert Greenwald's film "Outfoxed" generates controversy and acclaim, AlterNet joins MoveOn.org in a major campaign to challenge Fox as a partisan news channel – a 24/7 commercial for a political party, and an insult to America's media consumers. And we're going to need your help to carry the battle forward.

Is the Fox News Channel about to lose its "Fair and Balanced" trademark? Nothing is more likely to make a serious journalist, or a concerned news consumer, gag than hearing the Fox News Channel smugly refer to itself, day after day, as being "fair and balanced." But what really rubs salt in the wound is this: Fox has actually registered those three words – "fair and balanced" – as its signature trademark. Does this mean that all journalists and news organizations in the world are legally forbidden to use those words – not only to describe themselves – but for virtually any purpose whatsoever?

As if to drive the point home, in August of 2003, Fox brought suit against the humorist Al Franken and his publisher, EP Dutton/Penguin, for allegedly infringing on Fox's three-word trademark. The offense? Franken's book, Liars and the Lying Liars Who Tell Them (which attacked Fox), was subtitled "A Fair and Balanced Look at the Right." However, when Fox appealed for a preliminary injunction, U.S. District Judge Denny Chin refused the request – adding that he found Fox's lawsuit to be "wholly without merit, both factually and legally." The judge also said that Fox's right to such a trademark was not very strong, suggesting that, if challenged, it might well be revoked. "From a legal point of view," said Judge Chin, "I think it is highly unlikely that the phrase 'fair and balanced' is a valid trademark. I can't accept that that phrase can be plucked out of the marketplace of ideas and slogans." A few days later, instead of proceeding to trial – as was its right – Fox abruptly decided to drop its lawsuit against Franken. There was no follow up to Judge Chin's suggestion. So Fox was able to retain its trademark registration – and the right to continue using it to mischaracterize its news product as "Fair and Balanced." But perhaps not for very much longer.

The Independent Media Institute ( IMI), parent organization of AlterNet, filed a legal challenge with the U.S. Trademark Office that seeks to strip Fox of its "Fair and Balanced" trademark registration on the grounds that it was "merely descriptive" (making it ineligible for trademark registration) as well as "false and misleading." AlterNet (which is a project of the Independent Media Institute, a nonprofit organization dedicated to strengthening and supporting independent journalism) filed its challenge with the U.S. Trademark Office on December 23, 2003, just under the wire – only hours before the clock was scheduled to run out on Fox's "contestability period," which is the legally mandated 5-year window during which a trademark registration can be challenged. After that period the right to use the trademark becomes "incontestable" and virtually invulnerable, and its holder is entitled to prevent anyone else from using it, under penalty of legal prosecution, virtually forever, and regardless of whether the trademark was legitimately registered or not. Now, for the first time, AlterNet is making that legal challenge public. We are also joining MoveOn.org in launching an international campaign to confront Fox News in its blatant efforts to use the airwaves for political gain and to promote right-wing politics. This weekend, MoveOn.org sponsored more than 2,700 house parties to view "Outfoxed," Greenwald's documentary, and included dialogue with Greenwald and MoveOn.org's leadership and this writer to announce our legal challenge to Fox.

Wes Boyd of MoveOn.org told the more than 30,000 people listening and many watching over the Web: "People are steamed about the media. People get it. Washington has never seen the kind of outrage that they heard last year from citizens around the country about media consolidation. And Fox News, as Robert has shown in this film, is Enemy #1 in the undermining of democracy – they're partisan, they're bullies, they lie, they'll do anything for a buck, they don't even know what journalism is, and then they claim to be 'Fair and Balanced.' So we're going after Fox. This is just the beginning of a campaign to rebrand Fox "Unfair and Unbalanced," so that people know what they're watching. This campaign is a warning to any other media outlets, if they're thinking that the Fox model is something to copy. It isn't. Try journalism instead. Try serving the public interest."

Because AlterNet's was the only challenge filed within the contestability period, it is now the only entity with legal standing to bring this challenge to Fox's trademark registration in the U. S. Patent and Trademark Office – in what may become a landmark David-and-Goliath battle with far-reaching consequences for the crown jewel in Rupert Murdoch's media empire. Certainly Fox viewers could not fail to benefit from taking a more skeptical view of the trustworthiness of their favorite news channel, since a recent study by the University of Maryland's Program on International Policy [PIPA] found that Fox News viewers were far more likely to have significant misconceptions about important news facts than viewers of any other TV news channel. In our challenge to Fox, one may wonder why it was left solely to our relatively small web magazine to pick up the trampled banner of journalistic integrity and carry it – right to the very gates of the mighty Murdoch media empire. Where, one might ask, were Murdoch's prestigious and presumably more honorable media rivals – CBS, NBC, ABC, CNN, The New York Times, The Washington Post – who pride themselves on upholding the highest standards of truth and fairness, and look down their noses at Fox for its cynical pursuit of sleaze and sensationalism? We sincerely hope that all manner of media organizations and leading journalists and public figures will join the confrontation of Fox, because Fox News taints all of corporate media in its role as propagandist, reducing the public's confidence that it is getting anything remotely truthful – or fair and balanced.

So why did AlterNet go out on this limb? Mainly, because we were angry. Really angry. We felt that Fox's false and misleading claim of being "fair and balanced'" was an affront, a slap in the face, to us and to all the other honest and hardworking journalists who devote their lives (sometimes even lose their lives) to the gathering and reporting of news that truly is "fair and balanced."

We have no problem with Fox News being an unashamed spokesperson for the GOP, or even an outlet for conservative propaganda, in what is after all a free marketplace of ideas. But when Fox is allowed to frame its distorted, ideological point of view as "fair and balanced," we're all in trouble. What they're really saying is that anyone who disagrees with or challenges the conservative line is biased or a flat out liar – or just plain wrong. That kind of dangerous reasoning has to be challenged, whether it's coming from the White House or Bill O'Reilly.

According to Steve Brown – an advisor to AlterNet's trademark challenge to Fox (and also a member of the governing board of listener-supported radio station WBAI-FM in New York) – "the financial costs of challenging Fox's virtually bottomless pockets may impose a burden on AlterNet's modest revenue stream. Murdoch's personal net worth alone is estimated at $5.3 billion, and revenues from his media holdings may account for billions more."

That's why AlterNet has established a media fund to help cover the expensive legal costs connected with this challenge to Fox, and to support the research and investigation that will further reveal Fox's blatant bias masquerading as journalism. For a minimum of a $30 contribution to the AlterNet "Fight Fox" fund, we'll send you a free copy of Robert Greenwald's powerful documentary "OutFoxed." We appreciate your support.

Send your checks (made payable to AlterNet – Fight Fox Fund) to: AlterNet, 77 Federal Street, San Francisco, CA. 94107. Or donate online via credit card or PayPal.

Robert Greenwald is on the Board of the Independent Media Institute.

Don Hazen is the Executive Editor of AlterNet.

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