For those tuning in late, lots of people here were joking, as Mark Sanford's mea culpa press conference approached, that Fox News would label him as a Democrat. Ha ha ha. Wouldn't that be just like them!
Then, of course, they did.
Enough. They have to be made to pay for their unprofessionalism and lying. Their primary appeal is to low-information voters who are by now emotionally invested in believing anything they say. But they also appeal to people watching the news, in too many public places, out of the corner of their eye, whom they want to associate "scandal" with the "D" brand.
At a minimum, DNC Chair Tim Kaine should come out and publicly give them holy hell. If they want to say that this is a joke, let them explain why it is funny and when they should be taken seriously. If they want to say it was a mistake, let them explain why the same one over and over, and why -- knowing they have this tendency -- they aren't more careful.
And the DNC might do one more thing: sue Fox "News".
I do not suggest that the DNC sue Fox "News" for defamation. That would probably be too hard to prove.
However, and more experienced hands than I would have to think this through, I think that there might be a case that can be made for suing based on FNC's apparently deliberate misuse of the Democratic Party's trademark. Specifically, this would be a theory of trademark dilution. In fact, it might work under both types of tradmark dilution theory:
Under trademark law, dilution occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it." Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).
I am assuming here that the name "Democrat" and the symbol "(D)" that clearly designates that brand -- and it is a brand, and the Democratic Party is involved in commerce, even if that only means selling party-branded paraphernalia -- are trademarks of the party, which I believe would make them owner for commercial purposes by the DNC.
Now, a lawsuit might assert that Fox "News" is a commercial enterprise that is trying to blur the Democratic brand (making it less clearly apply solely to Democrats) and or tarnish that brand ("weakening of a mark through unsavory or unflattering associations") for its own economic purposes due to its association with the Republican Party. I'm less confident about the blurring claim than the tarnishment claim, and frankly the tarnishment claim would be a lot more fun to make -- and it gets right to the point of having Foley, Sanford, and others intentionally misrepresented as belonging to the Democratic brand.
Could Fox "News" raise viable defenses to this? Sure. It could claim that it was engaged in satire -- really, really, bad, unfunny satire -- and that satire is protected. If that's what they want to argue, let them. I can't wait.
Can they claim it was just an accident? Sure! The "R" and "D" keys even share a border on a standard keyboard! But if it's an accident, then let's see, out of all the times when this accident could occur, whether it does occur only in the specific context of wanting to associate a misbehaving Republican with the Democratic Party. Yes, let's see that.
Can it raise a general First Amendment defense? This is harder to do than you might think in the trademark context: after all, the issue is whether they could deliberately lie about a trademark for commercial gain. Does the First Amendment protect that? Well, they can do it; the question is whether they can face civil damages for it. I'd love to see a settlement where Fox "News" agreed to take affirmative steps to ensure that they don't do this and to pay set damages to the DNC every time it happens in the future.
Now, it's not lost on me that the greatest benefit of filing such a lawsuit would be driving home to the public that Fox "News" is in no way an actual journalistic operation, let alone a "fair and balanced" one. But you can't file a suit -- although you can publicly declare your /intention to file a suit without following through, as various conservatives accusing others of libel and slander have shown -- without believeing that the suit has actual merit. I think that a tradmark tarnishment theory might well have merit, though if someone want to come here and knock this idea down, you're welcome to try. At the minimum, though, the prospect of such a suit is delicious. Imagine:
Fox "News"'s deliberate and continued association of disgraced Republicans with the Democratic Party, despite being in its own economic interest, is an attempt to tarnish the Democratic Party brand with the public. Republicans own the franchise on this sort of corrupt and hypocritical misbehavior; they cannot be allowed, through their de facto agent, Fox "News", to hang the Democratic sign over their own establishment after it has been revealed to be condemned. They have to own their own problems, and if they try to harm the Democratic party's financial interests by claiming that they are our problems instead, then they have to pay. I now offer the following Exhibits...
Do it, Governor Kaine, or if you won't do this, hold a press conference and do something like it. Either way, do it loudly, do it often, do it unapologetically, and do it until it sinks in with the public that Fox "News" is a corrupt PR machine rather than an example of journalism.