When you can't succeed in the court of public opinion, take it to the judge. How many times have we seen this scenario played out? "JUDGE! ASSERT MY RIGHT TO BE A RETARD!"

I think it's a fairly safe bet that the suit will get filed in the Ninth Circuit. I'm not sure on this, but I think Fox News is based in New York. That shouldn't make a difference, in terms of getting it thrown out, because a media giant like Fox News is amenable to process anywhere in the country. But if they are based in New York, they have a good shot at transferring venue to New York (the Second Circuit), which is traditionally more pro-business and anti-horsecrap.

At any rate, if I were a FoxNews lawyer I'd already have a transfer of venue motion ready to go. Also a motion to dismiss for being moonbattishly ridiculous. Also a counter-claim based on an anti-SLAPP laws that I assume NY has. (SLAPP stands for "Strategic Lawsuit Against Public Participation").

I think it would be fun for fox to initiate a countersuit against the networks, CNN, and the New York Times. Or whatever you'd call it. Procedure was never my strong suit.

Ace: Regarding the fundamental unseriousness of these people. Remember the Deaniacs? What happened to those people on primary day? Where was the "enormous orginizational edge" and "really vigorous enthusiasm" when Dean needed it? Or now that Nader needs it? Probably the same place it will be when Kerry needs it. Getting high in its mom's basement and planning its next Black Block Protest Party. The folks that run MoveOn are likely responsible enough to make it to the booth on Nov 2 but I have my doubts about significant portions of these maniacs.

Can't find anything else on this, other than a quick blurb that they plan to file the complaint with the FTC, not in court. I can't imagine for what, other than perhaps alleging that the "F*B"(tm) slogan is "false and misleading advertising" or some such horsecrap. If that's the case, the FTC should dismiss it about two seconds after it concludes that "F&B"(tm) is a statement of opinion not fact.

Then, once the FTC dismisses it, Fox can probably bring an action against MoveOn for malicious prosecution, and maybe collect a few of George Soros' millions as punitive damages. That would be sweet.

I only wish Fox hadn't initiated that stupid lawsuit against Al Franken last year over the stupid title of his stupid book; it would give them a lot better moral standing in this matter in the court of public opinion. But now, when they complain about this frivolous action, MoveOn can truthfully throw back in their face that Fox filed a frivolous lawsuit last year, and invoke the magic word "hypocrisy," which trumps everything else in the liberal mind.

Actually Alex, I believe the Fox suit against Franken helps this case, and that's exactly why they did it. Fox's suit was for misuse of trademark. Check TESS for "fair and balanced" and you'll find Fox News Network owns registration 2213427: service mark for "entertainment services in the nature of production and distribution of television news programs", first use 1996.

As a validly held trademark for almost 8 years there's only one sure-fire way to kill it: prove they haven't defended their property. Franken's suit makes that case for them.

Perhaps MoveOn can win by some other tack, but I doubt it. In any event, they won't win based on trademark law alone.

(Disclaimer: I'm no lawyer, but I have to work extensively with copyrights and trademarks in my work.)

Btw, TESS shows that "A cancellation proceeding has been filed at the Trademark Trial and Appeal Board and is now pending." Filing date was 2004-01-13. Wonder why the suit comes out a week before the start of the Democratic National Convention....

BR - I hear you, but I don't think that your explanation is quite the whole story.

Disclaimer: I'm not a lawyer either ... yet ... but I'm taking the CA bar exam in a week and a half, I'm going to work in IP, and I did a fair bit of TM work last summer for the firm I'll be starting work at this fall. I didn't take TM class in law school, but I got an A- in copyright. So that's the limited basis for my authority to pull comments like this out of my butt :-). (But you still shouldn't take it as legal advice.)

The thing is, even if Fox owns a valid TM in "F&B", Franken's use of it in his book title fell pretty solidly under the "fair use" defense, being parody, satire, or commentary. It's comparable to the fair use defense under copyright law that allows Allah to make a T-shirt superimposing crosshairs over the famous, but copyrighted, image of Che Guevara (see yesterday's post) -- but there's a slight difference between the way fair use is applied between copyright and TM. Copyright focuses more on the impact on the market for the product (among other factors), but TM focuses on the key phrase "likelihood of confusion" -- i.e. whether the complained-of use is likely to confuse consumers about the source of a product.

The judge who tossed out the Fox-Franken suit said that "There is no likelihood of confusion as to the origin and sponsorship of the book ... or that consumers will be misled that Fox or Mr. O'Reilly are sponsors of the book." He not only accepted Franken's fair use defense, but he also said that Fox's trademark was "weak," using as it does a common journalistic phrase that predates FNC; meaning that there's less protection FNC can claim under its TM. It's comparable to a breakfast cereal company trying to trademark the phrase "wholesome goodness" or summat. The judge's comment on the weakness of the mark is probably the basis for the cancellation action.

All in all, FNC's suit against Franken was just silly. And I say this as someone who thinks Franken is an ass. The trouble is, O'Reilly's just as big of an ass oftentimes, and I'm not entirely comfortable having him on my side of the issues.

1) The Left, long accustomed to having a monopoly on the dissemination (and suppression) of information, has been driven batshit crazy by the idea of a single cable news network they don't control;

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

HA

HA

HA

Only response to this one I could manage while rolling on the floor...

2) These are fundamentally unserious people, engaging in silly media stunts more suited to radio shock jocks than political organizations, all while there's a global war of terrorism on.

Wait, I thought liberals were too uptight, humorless, and intellectual... and what the hell does this have to do with the War on Terrorism? I'm reminded of the scene in The Big Lebowski where Walter tries to connect Bunny's kidnapping to the Vietnam War. Remember, when you overuse a demagogic talking point like that, it begins to lose its emotional effect (e.g. Kerry with the purple hearts, the entire right wing with 9/11).

But let's talk about politicians who try to implement their ideological agendas during a war (gasp! sob! the horror!). Let's talk about the Republicans trying to enshrine their knee-jerk homophobia in the Constitution, during the war on terror. Or maybe we can discuss Bush's refusal to adjust his single-minded pursuit of tax cuts for the wealthy, thereby forcing the government into further deficits in order to pay for that war on terror. Really, the self-righteousness quotient on the right is way overboard to begin with, and especially for such a minor issue. A little perspective, please.

Alex's comments about it being an FTC complaint seem to make the most sense. Exactly, what is there to go to court over?

Fox News needs to go on the offensive, running constant promos how they are the most unbiased major media source according to the study done by the Stanford and U.Chicago economists. When I tell them about that study to liberals, they go ballistic. It's fun. Try it.

"All in all, FNC's suit against Franken was just silly. "

I agree with you on that. I also think its silly to trademark words like 'fair and balanced.'

Disagree with you on O'Reilly, I generally like him.

That lawsuit is a mystery to me; why they sued, and certainly must have known they couldn't win.

You both make good points, but I'm not disagreeing that Fox's suit couldn't win, I'm saying to not sue would have invited the court to cancel the trademark without so much as a glance at any defense Fox tried to make. There's been a lot more attention to trademark defense since Sony lost the rights to Walkman in Australia on the basis that they didn't sue the crap outta anyone who used the word. Is that a stretch? Sure - but it's a stretch coming from the leftist judges too, and their stretches have been winning too often lately. I think Fox did what they felt they had to do, especially if they knew the trademark was weak.

...Hey, what was that? Is there a moonbat in here? Did someone leave the door open again...?

thereby forcing the government into further deficits in order to pay for that war on terror.

I've got a way to fix that: get rid of all the ILLEGAL social spending.

Really, the self-righteousness quotient on the right is way overboard to begin with

Self-righteousness on the LEFT, you mean. That's what all the above-mentioned social spending is for--to ease the feelings of guilt you have for doing better than someone else.

Actually, Fox should dump the "Fair And Balanced" for something like "News For The Rest Of Us" or "News Without The Pretense Of Objectivity Coming From Asshats Like Jennings" Of course, the last slogan doesn't flow as well.

Self-righteousness on the LEFT, you mean. That's what all the above-mentioned social spending is for--to ease the feelings of guilt you have for doing better than someone else.

An attitude that perfectly sums up why social programs tend to be ineffective... the (sometimes) closet and (sometimes) open elitism of the right. If you honestly believe that social programs are merely intended to assuage the guilt of liberals, then you have no understanding whatsoever of the problems those programs are intended to alleviate... much like most on the right. You use terms like "liberal elites" and then behave in a completely elitist manner by dismissing inner-city poverty as "a bunch of welfare queens who collect food stamps while watching color TVs". So, whether right-wingers actually believe that twaddle or not, they act on it by continually sabotaging social and educational (oh, sorry to give you a link to a "terrorist" organization there) spending. Also, I'm sorry, this is a new one on me... how is that spending "illegal"? And what, exactly, would you do instead to alleviate poverty? Or would you just let people starve and live on the street? Actually, that's a dumb question... you probably would.

Mikey,

How's that 40 year "War on Poverty" coming, mate?

We seem to be stuck in some sort of quagmire.

I suggest we turn this entire "war" over to the good graces of the UN.

You use terms like "liberal elites"

I did? Where?

and then behave in a completely elitist manner

I did? Where?

by dismissing inner-city poverty as "a bunch of welfare queens who collect food stamps while watching color TVs".

I did? Where?

Also, I'm sorry, this is a new one on me... how is that spending "illegal"?

United States Constitution, Article I, Section 8, powers enumerated to Congress. See also: Constitutional Amendment 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The people of this nation are sovereign--the only powers Congress has are the powers WE specifically grant them. Any legislation that falls outside these enumerated powers is an usurpation of OUR SOVEREIGNTY. Members of Congress who introduce or vote for legislation beyond these powers have violated the law of the land. They are criminals.

And what, exactly, would you do instead to alleviate poverty?

Look at amendment 10 again: powers not granted to the Congress or prohibited to the states are reserved for the states and the people. Your state, county, and local municipalities, as well as private citizens and charities, are responsible for this pursuit.

Or would you just let people starve and live on the street? Actually, that's a dumb question... you probably would.

There's the Leftist self-righteousness I was talking about: you think that you are morally superior because you want the national legislature to be responsible for helping others. I donate generously to charities. But in your view, I am morally inferior. Go be condescending somewhere else.

Perhaps someone could sue MoveOn.org for not having, in fact, moved on?

On a semi-related note. Keep reading down the page and you will note that Canada has decided to allow Al-Jezeera to be aired. I'm am not against that, however they will not allow Fox News to be aired because it is too biased. I think that tells us all we need to know about our friends up north.

Unfortunately, Smack, spending money for the general welfare *is* among Congress's enumerated powers. So it's not illegal.

Of course, just because they can do it, doesn't always mean it's a good idea, but that's a problem for the political process to try and resolve.

A few months ago I called in to a liberal talk radio show (I don't remember the name of the host, but he's based in Fargo and sounds like John Goodman) to argue socialized medicine with him. As a preliminary question, I asked him what part of the Constitution lets government take money out of our pockets to provide universal healthcare. He didn't answer at first, and when I pressed him on it, he said something like, "I don't want to get all hung up on that," and moved on with his policy argument.

I was absolutely astounded. It's not so much that he didn't know about the tax and spend clause, because I didn't know about it either before I started law school. It's his cavalier attitude about the Constitution. Of course, when it supports a liberal cause, the Constitution is the closest thing to "sacred" that a liberal can conceive, but when it does not (or, in this case, when the liberal is unaware that there is at least a colorable argument to be made based on the text), it is irrelevant, obnoxiously technical, something to "get hung up on."

Look, either the document means something (i.e. all of it), or it doesn't. Picking and choosing the important clauses is a little disingenuous. I can't simply dismiss those clauses I find annoying simply because they make my position harder to argue. And I think conservatives in general recognize this, as witnessed by the gay marriage debate in the context of Boston. Conservatives recognize that the full faith and credit clause applies, and applies to the detriment of their political views even if they live conservative in Texas or Utah, and therefore get up in arms over something happening in liberal Massecheusetts.

For liberals, however, the Constitution is only important insofar as it can advance their policy agendas. Again witness the gay marriage debate, in which separation of powers is thrust aside, Gavin Newsom can override his state Constitution simply because he disagrees with it, and the advice and consent clause is used as a club to obstruct federal judicial appointments for political purposes.

Sick.

On a related note: ConLaw, you are right about the general welfare clause, and that is exactly the clause on which a liberal will best rely in this debate. But I would argue that "general welfare" is not synonymous with "special interest welfare."

An example of general welfare is a lighthouse. Everyone gets equal benefit from a lighthouse when ships aren't frequently crashing on rocky coastlines, goods are delivered safely, and sailors aren't killed in avoidable maritime accidents. The impact of maritime commerce is such that everyone in society is benefitted by effective lighthouses. Furthermore, a lighthouse is the ideal subject of government power, because no individual has a motivation to build, maintain and operate one.

Contrast that with the food stamp program. The "general" public does not benefit from food stamps, only those people who use them. And the program is not the ideal subject of government power because local charities can and do more efficiently administer relief programs, and charitable contributions increase as taxes go down.

My argument, therefore, is that certain "welfare" programs are beyond the rational scope of the tax and spend clause. But you are right to point it out, because it can be and is read as justification for those welfare programs.

Unfortunately, Smack, spending money for the general welfare *is* among Congress's enumerated powers.

Let's take a look:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

1) In 1791, the word "welfare" didn't mean anything like what it has come to mean now. It was very clever of FDR to reshape the meaning of the word, however.

2) [P]rovide for the common Defence and general Welfare OF THE UNITED STATES. And what do they mean exactly? Read the next 17 clauses and you'll find out what the general welfare of the United States means. Hint: playing economic referee is not to be found.

Our Representatives have violated the oath they took to uphold the Constitution. I stand by it: they're crooks and liars.

Smack,

I disagree with you that "the next 17 clauses" indicate what is meant by "the general welfare." Article I, section 8 is not set up as a general rule (clause 1) followed by examples (clauses 2-17) followed by a catch-all (clause 18). I think clause 1 is a separate, enumerated power, and the structure of the section supports this reading. There is nothing in clause 1 to suggest that it is to be read as saying, essentially, "Congress can tax and spend for general welfare, by which we mean: ..."

But you raise a good point in emphasizing the phrase "of the United States." Not "of the citizens of the United States," not "of the people," not "of the poor/underinsured/college students/special interests." The welfare sought to be protected is that of the states, and the states, in turn, are to protect their citizens, according to the Tenth Amendment.

This, I argue, is the proper interpretation, but I note again that it is not the only possible interpretation, and I can see how a Congressman could view his "welfare for votes" pandering as wholly consistent with the Constitution.

I still have some reservations about the nature of the phrase under discussion.

Data point 1: It's also used in the Preamble in a very generalized summary of the reasons for reconstituting the government.

Data point 2: It's a vague statement and, considering the then-prevalent fears of a runaway central government, it seems unlikely that they would have used the phrase as a specific power.

I will, however, concede that this point is up for speculation.

But as you note, the fact that it is the welfare of the states that is being sought is the truly strong Constitutional argument against a central government seeking unauthorized powers.

In addition to the textual argument, I think we have to consider the policy/history argument that GOVERNMENT THROWING MONEY AT PROBLEMS DOESN'T WORK! Charity is most effective when done on a local scale, education is best accomplished by private schools with economic accountability, medical care is at its highest quality when doctors aren't micromanaged from D.C., etc.

Through the lense of history, we should be seeing this by now. What government programs are most successful? I can think of two: our "program" to fund and train our armed forces, which toppled the most powerful Arab military force in less time than it takes to sneeze, and our "program" to cut taxes to jump start the economy so that we've had unprecedented growth and a full-fledged, if little noticed, boom. Granted, neither of these things are really "welfare programs." But they serve well to illustrate the policy concerns. Keep Americans safe from Islamo-fascists and don't steal too much of their money and good things will happen. Also, charitable contributions increase as taxes go down.

I can't add anything to that except that the most insidious and wasteful government jobs program in existence is the bureaucracy. Private charities with that much administrative overhead are called "frauds."