Should Bill O'Reilly's lawyers be sanctioned?

When I first started practicing law, almost 20 years ago, it was widely understood that if you filed a lawsuit that you knew had no merit you would face sanctions. In federal courts, Rule 11 of the Federal Rules of Civil Procedure codifes this principle, which is still used to sanction attorneys who file frivolous lawsuits.

Let us turn our hymnals now to the current affairs section and the story of Fox News vs. Al Franken. By now we all know that Fox News, because of the insistence of Bill O'Reilly, filed a lawsuit against Franken based on its "fair and balanced" trademark," and that their argument was rejected as meritless by a federal judge. The lawsuit sought to prohibit the publication of Al Franken's book, supposedly because Franken's book improperly used the term "fair and balanced." Naturally everyone with even a passing acquaintance with the First Amendment of the U.S. Constitution thought Fox's lawsuit was laughable (read: "frivolous").

So why would Fox file a meritless lawsuit? Answer: because Bill O'Reilly insisted on it and Fox chose to appease him. Not only did they file the lawsuit, but they also larded the allegations of the complaint with gratuitous personal attacks on Al Franken. I use the word "gratuitous" in a legal sense, meaning that the descriptions of Al Franken's behavior and personality (e.g. he is "shrill") had absolutely no legal relevance. At least not in a complaint that seeks to assert rights based on a trademark. Of course, as we have noted, we are finding out now that the lawsuit was not about protecting Fox's trademark rights, but about appeasing Bill O'Reilly.

So, not surprisingly, after losing the preliminary injunction hearing last week Fox dismissed the lawsuit. You would think that at this point Fox's lawyers would caution everyone involved with the case to just to just keep quiet and 'whistle past the graveyard,' so to speak. And perhaps they did. Although maybe they lacked the temerity to say this to Bill O'Reilly. Hey, Bill O'Reilly is the one who tells other people to "shut up." No one would dare say that to him.

So, since he can say what he wants (even if it is legally advisable to keep quiet), Bill O'Reilly apparently chose to speak out and explain the strategy behind the Fox lawsuit for the record: "we never thought we were going to win the lawsuit. We wanted to expose the vicious tactics being used by [Al Franken]." Washington Post Story.

Oh, really? That's very interesting. And if that's true then Fox's attorneys might be at risk of being sanctioned. But let's forget about the attorneys for a moment. I don't want Fox's attorneys to be sanctioned, even though they might qualify for sanctions, especially given the legally irrelevant allegations in the complaint (i.e. the ones that which were simply personal attacks on Franken).

If it were possible, I'd like to see Bill O'Reilly sanctioned. Unfortunately, since he almost certainly didn't sign any of the pleadings that were filed in court, O'Reilly is probably off the hook. Still, if it were possible to sanction him, I have a proposal for an appropriate punishment.

He should, first of all, be barred from ever complaining or insinuating in any way whatsoever that our legal system is burdened by stupid lawsuits. He should be required, at least once a week, to have as a guest on his show someone who has filed a meritless lawsuit, and he should be required to listen with patient dignity as they complain that their rights have been trampelled. If he interrupts in any way as they tell their tale of woe a studio audience should be available to shout in unison for him to "SHUT UP!"

And then, lastly, he should be made to write 100 times in legible handwriting "I will not file lawsuits that I know have no merit, even if I think that my reputation has been tarnished." And since we lack the power to impose this sanction on Bill O'Reilly then perhaps someone in Congress should propose a law that grants Judge Chin this power. Bill O'Reilly's appreciation of the purpose of legal system is not merely flawed, it is contemptible. And we can't afford to let people (especially ones who have access to top-notch legal representation, and who know better) use the publicly-funded legal system to satisfy their vanity.