Unfair and unbalanced?

Al Franken is a satirist, so it's his job to poke fun at powerful people. But when he appropriated the Fox News slogan, the fallout went right to the top. Andrew Gumbel examines a court case that left red faces in high places
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The Independent Online

Cast your mind forward to the morning of 3 November 2004. Imagine, just for a moment, that George W Bush has gone down to ignominious defeat in the US presidential election, his once sky-high popularity ratings pickaxed and bludgeoned into the ground like some rotten fencepost on a Texas ranch. All across the nation, people are asking where it all went wrong for the chief executive who had seemed so immune from criticism for so long.

And the answer, they all agree, is the moment that the mighty Fox News Channel - the red-meat chomping, propaganda-spewing, flag-waving, all-screaming, ratings-topping cable station doubling as chief baggage carrier for the Bush administration - was reduced to utter humiliation by a single pesky New York comedian.

Okay, I may be getting ahead of myself here. But it is absolutely true that Al Franken, a one-time writer and performer on Saturday Night Live who has made a splendid second career as a political satirist, has successfully turned the Rupert Murdoch-owned Fox News into a national laughing stock. In so doing, he has indeed struck a blow against an information (and disinformation) machine that has played a crucial role in spreading and enforcing the White House's with-us-or-against-us mentality. It is perhaps stretching the point to say that this is the beginning of the end of the Bush administration, even with Iraq going to hell and the economy down the toilet. But then, as you'll see, stretching the point is entirely in keeping with the nature of this story.

The cause of the trouble is Franken's new book, a typically unabashed blend of razor-witted denunciation and old-fashioned gumshoe detective work directed at right-wing crazies both in and out of government. The title says it all: Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. It doesn't take too profound an insight into the workings of irony to spot that Franken is pastiching the overheated rhetoric regularly employed by the targets of his satire. Hence the decision to print the title word "Lies" in bold red lettering across the likenesses of President Bush, Vice-President Dick Cheney and two of the loudest screamers on the airwaves: Ann Coulter, a scary blonde banshee who regards all liberals as traitors, and who wrote shortly after September 11 that "we should invade their countries, kill their leaders and convert them to Christianity"; and Bill O'Reilly, who likes to torment the guests on his top-rated Fox News show, The O'Reilly Factor, rebutting their arguments with sophisticated epithets such as "pinhead" and "vicious son of a bitch".

Now, it so happens that the phrase "fair and balanced" is also the official Fox News slogan - and trademarked as such. It may seem an odd boast for a station that routinely goes out of its way not to give the other side of the story; which crowed with ill-concealed delight when Bush won his protracted legal struggle to become President; and crowed again when the Republicans swept the board in last November's mid-term elections. Perhaps the slogan is part of the deception whereby Fox News has sought - with considerable success - to push the parameters of political debate in the United States ever further to the right. Perhaps it is actually an indication that someone, somewhere has a sneaking sense of humour about the whole operation. Either way, you can understand why Al Franken felt compelled to put it into the title of his book.

But then the executives at Fox News made a fatal mistake. They rose to Franken's bait. Admittedly, he gave them every reason to be driven to distraction. Apart from the title and cover design, there was the fact that he had dug deep into the biographical background of O'Reilly and company and found them to be out-and-out liars about everything from family background to political party affiliation. (O'Reilly, claiming against all available evidence to be a voice of moderation, has always said he is a registered independent, but Franken found - and published - his voter registration form with a big black tick in the "Republican" box. Franken's chapter on O'Reilly is entitled "Lying, Splotchy Bully".)

A couple of weeks ago, Fox chose to sue Franken for trademark infringement for the use of the phrase "fair and balanced". With entirely straight faces, their lawyers argued that innocent bookstore customers might actually think that the book was somehow endorsed or underwritten by Fox News. And, while they were at it, they made an attempt at wholesale character assassination. Franken, their brief said, had appeared "either intoxicated or deranged" at the annual White House correspondents' dinner last April. He was, in any case, "increasingly unfunny". "He is not a well-respected voice in American politics. Rather, he appears to be shrill and unstable."

For Fox News to accuse anyone of being "shrill and unstable" is, of course, to invite immediate ridicule. One also has to question the wisdom of a television station accusing a comedian of losing his sense of humour in a way that causes half the world to burst into spontaneous laughter.

Franken, for his part, could not have been more thrilled. He was on holiday in Umbria when the lawsuit was filed, taking a few days to recover from writing the book before launching into the publicity campaign for its publication, originally scheduled for next month. He had, in fact, just dozed off with his nose in a book when someone came into his room to tell him: "Al, you're being sued by Fox."

"It took me about a second and a half to register this. Then I said 'Good!', and went back to sleep," Franken told me. The next morning, he put out a statement thanking Fox News from the bottom of his heart for providing more publicity than money could ever buy. His publisher, EP Dutton, promptly brought forward the book's release date - it came out last weekend - and advance orders sent it whizzing up Amazon's US sales charts from No 329 to No 1.

Then came the court hearing, which started on 22 August. Judge Denny Chin of the US District Court in New York clearly relished the occasion and reduced the gallery to squeals of helpless laughter as he posed a series of questions to the Fox lawyers.

"Do you think that the reasonable consumer, seeing the word 'lies' over Mr O'Reilly's face, would believe Mr O'Reilly is endorsing this book?" he asked. "To me, it's quite ambiguous," the hapless Fox lawyer, Dori Ann Hanswirth, replied to more laughter.

Judge Chin said a consumer would have to be "completely dense" not to realise that the cover was a joke. He also warned Fox that the phrase "fair and balanced" was so generic that he was tempted to invalidate their trademark altogether. As it was, he was simply tossing the case out of court three days into the hearing. "There are hard cases and there are easy cases," he concluded. "This is an easy case."

Franken's famous victory is being treated as little short of a godsend by President Bush's domestic opponents, who had begun to despair of ever finding a way to bypass the White House's highly insulated information pipeline feeding into a largely docile mainstream media. Particularly disheartening was the way the right-wing demagogues on radio and television - Rush Limbaugh, Sean Hannity and Michael Savage, as well as O'Reilly and Coulter - would always come across as so strident and sure of themselves, even as they spouted lies and bogus statistics. The more thoughtful, reasoned voices of the moderate middle and the liberal left, by contrast, would be routinely squelched, either because they couldn't get their soundbites together in the limited time available or because they would be cut off in mid-flow and fail to fight back.

Franken has found a way to redress this balance, and at the same time get under the skin of his adversaries like nobody else. His magic formula has two ingredients. The first is to throw back at his opponents the very techniques they use to such withering effect on others. Franken calls this political jujitsu - something he developed a few years ago when he wrote his hilarious, and devastating, deconstruction of the king of vulgar populist talk radio, Rush Limbaugh is a Big Fat Idiot: and Other Observations. The second is, simply, to be funny. "Their value-added is lying and distorting, my value-added is humour," he tells me.

And Franken can be very funny. In his new book, already in its fifth printing, he writes a spoof letter to John Ashcroft, the ultraconservative Attorney General, asking him for a personal contribution to a book about the virtues of sexual abstinence. Franken suggests that Ashcroft, as a true believer, could be an ideal role model for young people aiming to save their virginity until after they are married. "Don't be afraid to share a moment when you were tempted to have sex, but were able to overcome your urges through willpower and strength of character. Be funny!" he writes. "Did a woman ever think you were homosexual just because you wouldn't have sex with her? Be serious... But most of all be real. Kids can spot a phoney a mile away."

Viewed from across the Atlantic, the humour might seem unnecessarily cruel. But that is to misunderstand the nature of the opponents Franken is up against. Take, as a particularly egregious example, Bill O'Reilly's interview this year with Jeremy Glick, the son of a New York Port Authority worker who died in the rubble of the World Trade Center. O'Reilly was mad at Glick because he had signed a petition opposing war in Iraq. So he laid into him, not just for "mouthing... a marginal position in this society", but also for offending the memory of his father with his criticisms of President Bush and US military power.

Glick tried to explain that his father had also disliked Bush and thought he had come to power illegitimately, but O'Reilly would have none of it. "You keep your mouth shut when you sit here exploiting those people," he fumed, calling Glick's views "a bunch of crap". O'Reilly then repeatedly shouted "Shut up!" before finally yanking off his guest's microphone and yelling after him, off camera: "Get out of my studio before I tear you to fucking pieces!"

Franken had his own set-to with O'Reilly a few months later, at a Los Angeles book fair. O'Reilly understandably felt uncomfortable sitting next to a giant poster of the cover of Lies and the Lying Liars Who Tell Them, and his anger slowly rose to boiling point as Franken meticulously documented O'Reilly's lengthy history of false claims that he had won two Peabodys, among the most prestigious awards in US journalism. Finally O'Reilly exploded, calling Franken an idiot and telling him at least twice to shut up. On a radio show two days later he said that if he and Franken had been living in the Old West, "I would have put a bullet right between his head [sic]."

Several authoritative sources suggest that the impetus for the disastrous Fox lawsuit came from O'Reilly himself. There is certainly plenty of evidence that he cannot forgive Franken, referring to him recently as "a vile human being".

Franken, though, has no interest in turning this into a personal vendetta. For him, it is all about reinvigorating opposition to President Bush, especially in the mainstream media which, in his view, became so cowed after September 11 that "their balls went right back into their body cavity". This might well be the moment, now that questions are being asked about the reasons for invading Iraq and the Bush administration is being more widely accused of peddling lies and distortions. "The wheels have fallen off. The façade of Bush's credibility is beginning to crack," Franken says. And at least a part of that is down to him and his exquisitely irritating new book.