A Constitutionally Protected Comment

Atrios has linked to the transcript of the hearing on Fox's motion for a preliminary injunction against Al Franken, which arose out of Franken's use of the phrase "Fair and Balanced" in the subtitle of his Lying Liars book. I have two favorite sections.

First, Judge Chin gently slaps around Faux's in-house shyster, Dianne Brandi, for sumbitting an improper declaration which was not based on her personal knowledge.

trademark is being used, and in fact it has a duty to protect its trademark.

THE COURT: OK. Let me ask one other question. I'm not really sure that it's germane, but I have an affidavit from Dianne Brandy, and I guess she's the vice president of legal affairs. This is an incident that has received a lot of discussion. It's the subject of affidavits. That's the exchange between Mr. Franken and Mr. O'Reilly at the book expo. And Ms. Brandy makes some factual statements in her affidavit, and I'm wondering what the basis for the factual statements are. Was she there? She says in her affidavit in paragraph 13 that Mr. O'Reilly never made the statement about winning a Peabody. How does she know that?

MS. HANSWIRTH: The basis of Ms. Brandy's knowledge is looking at public records and discussing that with Mr. O'Reilly.

THE COURT: Are there not some transcripts of O'Reilly shows where it appears from the transcripts that he did make a statement about winning a Peabody?

MS. HANSWIRTH: I don't think so, your Honor. I think the statement was that the television program "Inside Edition" won a Peabody, not that he personally did.

THE COURT: I think it says "we" in a couple of them anyway. Why is there not an affidavit from Mr. O'Reilly where he denies under oath that he made the statements?

MS. HANSWIRTH: We could provide one, but I don't think it's germane to our motion.

THE COURT: I don't know if it's germane or not, but it's in your affidavits, and it's in your brief. I mean, usually when you have an affidavit, it should be on personal knowledge unless stated otherwise. I'm just a little uncertain as to the basis for the knowledge. It doesn't say that it's --

In plain English, the Court is saying that Brandi's affidavit is hearsay, without Brandi acknowledging that she had no personal knowledge of the matters asserted. That's improper, and the Court is telling Hanswirth -and Brandi -- that they know better than to submit an improper affidavit.

Hanswirth's response, acknowledging that the improper matter in the affidavit isn't even relevant to the motion, is a classic example of how not to respond to the Court. And it's telling -- as Judge Chin recognized -- that Faux didn't submit a sworn affidavit from Bill O'Reilly saying he never made the Peabody claim. I wonder whether Hanswirth's offer to provide that affidavit was the reason the suit was dropped after the hearing.

The second comment of interest:

MS. HANSWIRTH: You can go on to the Internet and you can see hundreds of web pages and Internet sites that are extremely critical of the Fox News Channel. The Fox News Channel, the more popular it gets, the more criticism it gets. Fox News Channel does not take any action against those people. It's their First Amendment right to criticize Fox News. The difference here is that this is a commercial use. This is on a book cover. This is being used to sell a product. And Fox News does have an interest in the way its trademark is being used, and in fact it has a duty to protect its trademark.

It's a good thing the fucks at Fox don't know just how lucrative the Roger Ailes blog empire actually is.