So the New York Times ran a magazine piece about Robert Greenwald‘s latest political documentary, OutFOXed. Stanford’s CIS and the great folks at Fenwick & West have been advising Greenwald (pro bono) about how best to exercise his fair use rights in making this critique of FOX News.
This clip gives you a sense of the issues we faced. And so you’ll see how relieved I was to read Dianna Brandi’s (VP for legal affairs at FOX) comment in the Washington Post: “People steal our footage all the time…. We generally sort of look the other way.”
I take it she’s referring to the fair use by others of FOX’s footage, and if so, then bravo FOX. Fair use, of course, is not stealing, even though lawyers who know better like to use that false description as often as they can. (But if she really means FOX footage is being stolen, then that’s awful. Get better locks, Fox.)
I actually knew nothing about FOX News before working on this film — not much time for network news, and I had only ever heard Bill O’Reilly once, on Fresh Air. And while I came to the project with low expectations about any news network, I was still astonished. As you’ll see when you buy the DVD or host a MoveOn.org house party, there’s a lot to be amazed at. The most powerful is an amazingly unFAIR and unBALANCED clip with Jeremy Glick and Bill O’Reilly. Not unlike (but much worse than) the exchange Georgetown Professor David Cole described. (Washington Post).
As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first.
Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.
Prof. Lessig,
I think the problem isn’t so much that Fox News is biased, but that they act as if they have no bias. The whole “no-spin zone” mantra becomes a way of claiming that Fox News and its host have a lock on the truth, while other networks or outlets are liars. I don’t mind bias as long as the presenter openly states it.
Ultimately I think this is a problem of media concentration. If there were dozens of cable channels and media outlets where one could hear a variety of views, then Fox News would simply be one of many. But, unprecedented media concentration means that all we get is the doctrinaire left/right worldview that eschews nuance in favor of the binary.
All that said, thank you Prof. Lessig for contributing your time to the making of OutFoxed. I for one am eager to see this documentary.
totally right, and this is a point the film makes. Everyone’s free to have a bias. Indeed, if that bias is the product of careful judgment, then everyone SHOULD have a bias. But if you make your brand on the idea that you’re “FAIR AND BALANCED,” then you’re fair game (and fare game) for critics.
Lord’s work is being done here — and the NYT take was damn inspiring. Small point — the filmmakers should be aware that Outfoxed is not in the Netflix system at all, which is a loss of many potential members of its audience, given the centrality of Netflix to the media consumption of many cost-conscious young people.
Can we get a torrent of the film to pass around? I’d be happy to paypal the makers the same price as the DVD just to see it today after downloading, instead of having to wait several days and rely on the post.
All the fuss over Foxnews would be very entertaining if it wasn’t for the fact that all news organizations have an agenda these days, but no one wants to admit it.
Regardless of whether Fox leans right, left – well no one will accuse them of that, or remains neutral they do appear to be different that many other news organizations. And that’s why they are 1. Popular, and 2. In the bullseye.
If people really expected balance in the news then everyone would have been at the castle gates of CNN with pitchforks and torches when they admitted they slanted their news coming out of Irag for 12 years in order to remain in Sadam’s favor.
I say leave the news organizations alone whether they be Fox, CNN, CBS, or whoever. The people can decide. If you want to be informed you’ll have to do more than watch any or all of these anyhow.
Michael
(left of Bush, right of Kerry, no fan of Ashcroft, and still looking for a candidate)
If the problem with Fox News is that “they act as if they have no bias”, then what’s the problem with CNN and MSNBC? I watch Fox News often, and while they may claim to have no bias, they obviously do. But the nice thing about it is their bias also sheds light on the biases of the other cable news sources, who seem to chant in unison.
Google News is good for this too, since it chooses news sources without obvious bias, and you can get several points-of-view on the same story…after a while you learn to expect a certainl slant from each.
I say leave the news organizations alone whether they be Fox, CNN, CBS, or whoever.
Fox News employees have produced morning memos showing that the white house wants them to use certain talking points and get certain points across in that day’s news. Now we can talk about the supposed liberal bias in the news industry (Clinton News Network anyone?), but I’ve never seen or heard of a daily memo that came down from JFK, Carter, or Clinton that told the news org what they should say and how they should say it.
What Fox does is appalling and anti-democratic. They are a mouthpiece of the gov’t while claiming to be the opposite. We Americans mock and scorn other countries with state-sponsored television that feeds the populace propaganda, as we should. But where is the outrage from the Right about how Fox conducts their “journalism”? How is Fox News different than a daily news show in Cuba or the former Soviet Union?
Back when there were only 3 TV channels the news wasn’t a for profit venture. News programs were often seen as loss leaders for prestige within the journalism industry. We don’t have that now.
Of course, everybody is biased to some extent. The issue is (or should be) trying to remain objective when conveying information. In addition, the Fourth Estate is supposed to keep an eye on government as very few Americans have the resources to do so on their own. In that regard, the press has abrogated its role as a watchdog and become a spokesman for the government.
The real issue for me isn’t left-vs-right reporting, but rather the depths that journalism has sunk to because media consolidation has put increasing pressure to sell product on what was once an informative medium.
I guess it is still informative if I count the latest cross promotions the media’s parent company insists is “news”.
Fox acknowledges its pro-American/pro-Administration bias and includes alternative voices. Other networks, as biased as anyone, imagine their opinions to be those of “right-thinking” folk and claim impartiality. Check out Orson Scott Card’s op ed “High Bias” in today’s Opinion Journal:
http://opinionjournal.com/extra/?id=110005312
Here’s my own essay on the subject: “Fair and balanced” for me, but not for thee?
http://sisu.typepad.com/sisu/2004/07/in_most_news_ro.html
thanks for ponying up the legal support so greenwald can distribute this commentary without the added worry of trying to litigate his fair use claim on his own. you link to d. cole quoting fox news in an editorial (clearly fair use); does it really differ significantly when the quote is a video clip?
since my law student days, i have been an advocate of taking back fair use by using it. i’m glad there are attorneys with the expertise (it’s not my area of practice) and the passion to defend the buffer zone.
it seems so clear to me that nothing in this documentary could fall into the cateory of “stealing” but i know that without people capable of, and willing to, make the argument that it is fair use (and not a copyright violation), fair use will disappear.
time to print up the “fair use it or lose it” tshirts.
I watched the trailer and think its great. Someone needs to make one for ABC, CBS, NBC, MSNBC and CNN.
Fact: we live in a capitalist country
Fact: journalist like to get paid
Fact: big corps don’t run news channels as a public service
Opinion: if other media companies percieve that FOX has a market advantage by playing on the “right”, they’ll start making the swing to fetch the advertising dollars.
God Bless the USA!
Maggie,
I agree, that CNN and MSNBC are hardly neutral. As I said upthread, I’m not objecting to bias, but to the limited number of alternative views available from the standard point/counterpoint or left/right narrative. Every story on a news show is shaped by its writers and producers, who naturally have a point of view that drives the presentation. I’m not about to go over the cliff into some kind of relativism though. I would prefer to see news channels (and people…) that derive their ideology from facts rather than deriving their facts from ideology. That goes for both sides of the so-called ideological fence.
Generally, what I object to most about Fox News is the total disregard for civilized conversation that their hosts seem to project. Last night I watched a Fox News show that had a Democratic and Republican strategist as guests. All the host and the Republican guest attempt to shout down the other guest. I’ve seen O’Reilly do it often as well. I cannot see how conversational terrorism and personal attacks do anything to raise the level of discussion. Having an entire news channel dedicated to that style of journalism does everyone a disservice.
I, for one, would love to see a conservative news channel where the discussion was civil and informative. Though I might disagree with the conclusions, it’s always nice to hear someone else’s point of view, and it’s easier to respect them when they refrain from uncivil behavior.
I would worry less about Murdoch’s neo-fascist cable network (it will fall of its own awful weight, in a few years) if it didn’t have something of a news monopoly in great areas of the country where tv comes only by satellite. Case in point, the southern Iowa hill country where I grew up. Reception is purely through the dish, and none of the services provides NBC,CBS, or ABC; all provide Fox. It’s that part of the world (along with Missouri, Ohio, Southern Illinois, and the great plains) where conservatism is built into the human psyche. That’s fine, until these right wing radicals come along and pass themselves off as conservatives. They are not, but they have gained a real foothold in areas that will be key in the November standoff.
For more on Fox News’ agenda, see The Corporation. Fox squelched its own reporters for trying to expose what Monsanto did to promote RBT and cover up the evidence that it is a carcinogen. Scary.
I agree with most of what many of you have said, but I would like to propose a different slant. Fox News is not the problem, it is part of the answer. Now wait, hear me out. I do not think any middle of the road news is good news. If you attempt to always be unbiased toward everything when you report, you end up reporting nothing of substance. The problem with Fox is that they do not state that they are conservative leaning. The public would be best served by having several news outlets that provide various points of view but inform the public as to their stance. I feel that if I listen to Al Franken’s take on an issue and then listen to Rush’s take, I end up with a much better understanding than if I just watch the news. Therefore, Fox is part of the answer, they are the conservative network, they should admit that. Now we need their counterpart station. That is another issue.
Another very interesting and new documentary (and probably like Control Room, as it’s about the vice-grip that coprorate media has on many peoples’ minds) that I think is better than Fahrenheit 911, is “Orwell Rolls in His Grave”, by Robert K. Pappas.
Interviews with Pappas are at Buzzflash.com, and according to Pappas, response has been so strong that (as he points out, Fox and CNN didn’t think to buy up the theatres – yet) the documentary will be released in about 100 American ciies over the next month or two
I watched the trailer; interesting that the soundbites are predominantly from opinion shows, not the news cast, that in one case the reporter was quoting someone and then asking a questions but it was presented as if it were his own comment. And then there is the “blacks can’t swim” comment which was a teaser about a something someone (an african american) said about the swimming requirement for south florida police – again giving the impression it was the opinion or personal thought of the reporter.
I would hope the “documentary” is not a collection of fallacies represented in the teaser.
What is scary to me, is that the assumed bias of CNN in 1988 and 1992 was far to the left, and pretty much every one joked about it being the “Communist News Network” – but since a little before 2000 that same network has been biased rather sharply to the right – and now the moniker is “Corporate News Network” – and CNN is not the only formerly left-wing news to go to the right-wing. NBC has taken than dive far more dramatically. ABC has always been conservative, and now CBS is beginning to kowtow to the Bush facism. So where are we to get our news?
Foreign television (BBC a little – though they are shaky now, and Deutsche-Wella/German Journal) and the big newspapers offer a more balanced view. For a view from the left you can’t even turn to NPR anymore, it has gone mainstream/centrist… you have to go to Pacifica and DemocracyNow to get a view from the left these days.
Now that is scary.
Professor Lessig brings up two points. I completely agree with one and respectfully disagree with the other.
First, I do think we should all make some effort to watch the movie. We should also make the effort to watch FOX News. We should form an opinion of our own. This documentary is exactly the sort of thing our founding fathers had in mind when they thought of the first amendment. And it’s a crying shame that someone who wishes to criticise FOX News should have to consult with an attorney before proceeding. If this isn’t a fair use, free speech issue, then what is?
But second, I disagree that FOX News is any more biased than other media sources. Let’s face the fact that anyone who has seen their words twisted in print or mangled on TV knows: Journalists are fundamentally ignorant. Their job is to report to the masses on subjects in which they have, at best, a meagre background. Thus any bias they may have, whether they are fundamentally conservative or fundamentally liberal in their day to day views takes center stage. Some are better at getting a less colored story than others. Some go in to a situation looking for evidence to confirm their suspicions. Others take the time to learn something first. Either way, suggesting that one side is biassed and the other isn’t is partisan.
We can and should criticize FOX News for their slogan. But if we do, we should also criticize the other news outlets for theirs. For example, the New York Times “All the news that’s fit to print” slogan is arrogant. They decided what is fit and what isn’t. Doesn’t that imply some sort of selection? For them to posture as an impartial news source is to say that they know what you need to know. I don’t know about the rest of you, but I think I’ll read someone else’s paper before forming an opinion.
I sense a lack of sophistication on the part of the above commenters. Fox News is quite forthright about what they are broadcasting. One simply has to understand the lingo. It’s kind of like on “Sanford and Son” (only in reverse) when the white cop and the black cop would be talking to Fred and Lamont. Fred and Lamont would have the black cop translate what the white cop was saying. Let me translate fox newsspeak into english for you.
“fair and balanced”= conservative
“unbiased”=conservative
“no spin”= Shout down the differing opinion
“the final word”=what the conservative speaker always gets
Here’s another:
“we report, you decide”-The fuhrer leads, the people follow.
Actually, Jardinero, I believe the liberal usually gets the last word on Fox (no spin zone); I must say I haven’t counted to verify, but it does seem to happen more often than not.
I watch fox news often; I deem them to be more conservative than the networks (who isn’t). To me, fair and balanced means someone finally balanced the liberal press with a different perspective – one that seems to resonate with the largest number of cable viewers.
I find it facinating when I hear liberals talk about big media consolidation limiting choices but then salivating over each and every liberal that joins the world of journalism to represent their point of view (limit conservatives with bias; promote liberals with bias).
When I was a child I watched Dan Rather; had no idea what spinning the news was or that it was happening to me. As an adult, I get it and have made a logical rational choice to explore many sources of information, one of which is fox. It’s just the news. It’s just one source. Liberals must think there are a lot of stupid people out there that they have to save from this evil. When will people get that the real evil is represented in the people who want to kill us all, liberal and conservative alike. Having a liberal US president would not change their mind.
The non-partisan Fairness and Accuracy in Reporting has explored this question to great length, generally concluding that:
“The mainstream media are no more liberal than the conglomerates that own them or the advertisers that pay their bills.” http://www.fair.org/articles/bias-op-ed.html
That said, Fox appears to be the worst of a bad bunch.
At least 5 years ago I wrote FOX news warning them that someone would expose them if they did not stop delivering news using Republican propaganda terms. They use the word “liberal” pejoratively over and over like Rush Limbaugh does and then they accuse every other news organization of “Liberal bias”. The author, George Orwell warned us about how the public can be hypnotized by language. FOX news is a virtual Orwellian nightmare in this respect. It just amazes me how so many don’t notice it. Thankfully, someone has come out and made the movie “Outfoxed” and people are now talking about it.
FAIR is a left-wing advocacy group. They are not non-partisan in any way, shape, or form.
Incidentally, by a Yale study using actual scientific methods, Fox News’ actual news program (the Brit Hume hour) came out a few ticks right of center, while the 3 major network newscasts were hanging out to the left of Ted Kennedy.
Just visited fair.org. The website did lodge criticism against those media outlets considered to the left and those to the right. Look closely, however. The criticism to the left leaning outlets is specific to when those sources seem supportive of a conservative point of view.
It is clear where their ideology lies from the content of the Activist section of the site.
Fox Rocks!
Stop the spin, folks.
Bill, did you post during a commercial break, or are we on a different time zone?
Different time zone.
I wanted to say something, but what I wanted to say was basically stated excellently by Michael on July 11. The sad fact is that very, very few Americans make any attempt to be truly informed, and please don’t think the television or the large newspapers are the place to be intelligently informed. The result, everyone is putty waiting for the latest liberal/conservation propaganda telling them how to think and what to do. Even sadder, these uninformed, ignorant Americans will decide who our next leader is, while most can’t even tell you today who their Vice President is or where Iraq is on a map!
When Michael Moore talks about how stupid Americans are he was talking about his base. This is the same base that will want to see this film. These are people who have relied on the CNN’s of the world to tell them what to think. When FOX came along it made people think and that is just too much for the Michael Moore crowd. Sorry, but it is the truth.
I just came out of Outfoxed. Here’s the deal.
Fox News presents themselves as a fair, balanced reporting. But they clearly are not. There is nothing wrong with them being conservative, but claiming to be otherwise (as they do) is misleading. I guarantee that viewers with whom they resonate believe that they are being given a fair, balanced perspective on the News.
As a moderate, who appreciates a balanced argument, I say — make Fox ditch the “Fair and Balanced” logo. They are welcome to be the Conservative News Network. Or more accurately, the Rupert Murdoch GOP News Network. Or, since all their news is actually conservative opinion in disguise, how about The Rupert Murdoch GOP Conservative Opinion News Network.
Then viewers would have the information they need to make an informed choice. And it has a nice ring to it.
Thank you for helping to produce this thought provoking movie.
Just had a chance to see outfoxed tonight at a MoveOn.org meeting. It wasn’t the best documentary I’ve ever seen, but it approaches a topic that needs to be addressed. The best part was the O’Reilly interview with Glick. I’m volunteering 10 hours a month to take on Fox now. I think they are more dangerous than President Bush – and that’s saying a lot.
I have watched Fox for a long time. It was a welcome change from CNN, which was way too biased for me. At one point after losing the lead (FOX has 3 times the prime time viewers of CNN), CNN went to conservative congressmen and asked how it could get its audience back. “Tell the truth” was the answer they got.
I have heard two Fox shows attacked here. Neither were news shows. O’Reilly, who is extremely popular, is not giving news – that’s an opinion show. Complaining about its bias is like complaining about an editorial. Also, BTW, I can’t stand the guy, because he is a know-it-all blowhard who abuses his guests. He is not, however, a conservative – he is all over the map.
The other had guests yelling at each other. Most likely, that was Hannity and Colmes. It is Fox’s equivalent of CNN’s shoutfest, except done with more decorum.
As a Vietnam Veteran, I am active in Vietnam Veteran issues this year – specifically anti-Kerry activism. I have rarely seen as much bias as the mainstream media has exerted against those who, with solid credentials, attack Kerry’s wartime or anti-war activities.
Everyone went after Bush for every imagined offense in the TANG (as an ex military reserve aviator, I know how silly those charges were). But when the entire chain of command above Kerry from ‘Nam unanimously pronounced him unfit for command, it was buried. Fox took the group’s spokesman on Hannity and Colmes. All other TV networks completely ignored it, except CBS who did a “kill the messenger” hit job on it..
There is a whole collection of very negative information about John Kerry, both his combat time and his anti-war time. Good luck finding it anywhere but in blogspace.
As a minor example, you would think it would be news when a totalitarian state puts out, via its official news agency, very negative information about the US, and includes John Kerry’s past statements, quoting him by name. Check out the Vietnam News Service for June. Nobody in the press did, at all.
So it hardly surprises me when a hit-Fox show is done. It also doesn’t surprise me when memos that aimed at balance were left out of the memos in the documentary, leaving an unbalanced view of the, well, unbalance.
I also want to point out that a recent Yale study on media bias found Fox News Special Report to be the most centrist of all shows, with all other outlets clustering close together on the scale (rederived ADA rating), farther to the left that the mean of the Democrats in Congress.
I have never considered Fox “fair an balanced,” but compared to such pathetically biased outfits as CBS and the New York Times – FOX is a Heinlein’s Fair Witness.
When you actually have first hand knowledge of issues, it’s a lot easier to judge whether the news is truthful or not. I have that knowledge, and the media scores an F. Not even Fox does that well. Anyone who imagines Fox to be a Republican mouthpiece hasn’t watched it very long. I wish it were… it would help balance out the many Democrat mouthpieces. But it isn’t and it doesn’t.
I used to listen to Communist propaganda – Radio Moscow and Radio Havana. Our main stream media today is at the Radio Moscow stage – they put out well done propaganda, using the standard tricks – pejoratives about conservatives, warm and fuzzy words about the left, facts left out that change the meaning, etc.
A simple example is the Sandy Berger taking highly classified documents story. First, let me comment that what he did was felonious – serious felonies. But if you read the New York Times of the Washington Post, you find out that the real scandal here is someone (presumed to be in the Bush Administration) let the word out. Talk about bias! The real story is this Kerry adviser illegally and on several occasions took extremely classified documents (each time a 10 year felony) and lost some of them.
It would be nice if we had news outlets with a variety of positions. Today, on TV, there are two positions: the Anybody But Bush position of CBS.CNN.ABC.NBC and the position of Fox, whatever that is.
I agree with the comment above, that FoxNews is too powerful and very dangerous. Their coverage is about as Fair and Balanced as Al-Jezeera.
The Outfoxed documentary was excellent and more important than Farenheit 9/11. It was not funny and clever like Michael Moore, but it exposed the fact that the Republicans domination of politics and the media have become dangerous and unchallenged.
It is interesting to me how the Republicans are unwilling to take responsibility for anything and have now used the “liberal media” as the standard argument for everything that is wrong with America. FoxNews uses this same demagoguery to justify their existence. In a sense they claim to be heroically rescueing America from the “liberal media” with Fair and Balanced coverage.
The whole Foxnews/Republican marriage is looking more like a Kremlin propagandafest. Ironic, in that we won the cold war (give thanks to Ronald Reagan), that we are drifting dangerously toward an Orwellian world where propadanga masquerades as truth.
Foxxx built his own basement studio. His hands installed every cable, every nail, every screw. Due to his own production and engineering skills�plus his bonds with such A-list beatmakers as DJ Premier, Pete Rock, Alchemist, and Diamond D�Foxxx became a self-contained musical entity. As he watched the rap game descend into a swamp of greed and shame, Foxxx�s anger and frustration grew. But he learned to reserve his options, largely from his growing friendship with the legendary soul singer Lloyd Price. Foxxx poured ten years of struggle and rage into the microphone. When Industry Shakedown dropped in 2000, it was an unprecedented commentary on the rap game. In an industry obsessed with politics, Foxxx named the names that no one else had the heart to utter.
The problem really began when television news departments’ budgets were brought into the TV networks’ overall budgets. Before that, news programs always lost money, and the networks made up for that loss with other programming.
Once news departments had to “make money” with their programs, journalistic integrity slowly eroded into the sorry state it exists today. It doesn’t matter so much the bias of a news program, but the fact that they are trying to “sell” you the news. Get money for their advertisers, etc.
IMHO.