But Fox's absence of fairness and balance has not stopped it from taking a proprietary interest in the phrase. The network registered 'Fair and Balanced' as a trademark in 1998, giving it a legally-cognisable interest in maintaining the phrase's value. And to those who fail to take its ownership of the trademark seriously enough, Fox has a ready response: to sue them.
In August, Fox filed suit in federal court against Al Franken, a comedian and political satirist and author of a book due for September release, Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Franken's use of Fox's trademark phrase, the Fox court papers averred, was likely to 'blur and tarnish' the phrase. Adding to the injury, in Fox's view, was the fact that a photo of Fox news commentator Bill O'Reilly was featured on the book's cover.
According to Fox's attorneys, readers seeing the photo might mistakenly believe that O'Reilly had endorsed the book.
The reference to O'Reilly as an aggrieved party hinted at the suit's origins. A blustering bully of the American right, O'Reilly, had fallen into a shouting match with the unabashedly liberal Franken at this year's BookExpo America, telling him to 'to shut up' (and foreshadowing what was to come).
O'Reilly could not stand by and came back with a self-pitying screed. 'Liberal ideologues' and their allies, the 'elite media,' were angered by Fox's success, he complained. Fox was compelled to respond in court to their unfair attacks, slander, and defamation.
But in a telling omission, O'Reilly's repeated references to defamation were not reflected in Fox's legal complaint. Why? Because defamation, as a legal matter, looks to the facts. Under the relevant constitutional rules, Fox would have to prove Franken wrong. It would have to show that O'Reilly was not a liar - let alone a lying liar.
A trademark case, hinging on the ownership of words rather than on their accuracy, must have been a more inviting option for the Fox lawyers. It is difficult to squelch unwanted criticism via a claim of defamation, yet it may still be possible to misuse trademark law to achieve the same ends.
But the Fox News attorneys still had to persuade a federal judge of their position. At a hearing in late August, a Fox attorney struggled to explain how Franken's use of the 'Fair and Balanced' slogan would confuse consumers. The judge, sceptical from the outset, asked, 'Do you think that a reasonable consumer, seeing the word 'lies' over Mr. O'Reilly's face, would believe Mr. O'Reilly is endorsing this book?'
Ignoring the laughter in the courtroom, Fox's counsel responded that the cover's message was 'ambiguous'. 'It does not say 'parody' or 'satire,'' she explained, straight-faced.
The judge was unconvinced. 'This case is wholly without merit,' he concluded. 'Mr. Franken is clearly mocking Fox.'
And, indeed, it is Al Franken who has had the last laugh. The publicity drove his book to the top position on Amazon.com's sales chart and it currently stands at number one on the New York Times nonfiction bestseller list. The dismissal of Fox's suit was a clear victory for freedom of expression.