By the time the New York Times issued its historic “mea culpa,” Robert already had a new target in his documentary sights. Personally raising hell had proved to be far more satisfying than making biopics about people who’d raised hell in the past. Working with many of the same folks who helped him make Uncovered, Robert spent the spring of 2004 putting the finishing touches on his movie about the right-wing bias of the Fox News Channel.

Robert’s new documentary was being made in complete secrecy, so that the powerful News Corporation would be taken by complete surprise when the film was released. With the incendiary title Outfoxed: Rupert Murdoch’s War on Journalism, Robert’s work-in-progress was bound to raise the ambient temperature in the News Corp executive suite.

In the same way that Uncovered rebutted the Bush administration’s pre-war claims, Outfoxed was designed as a frontal attack on the “Fair and Balanced” slogan that is plastered on Fox News programming. To gather ammunition for his case, Robert assembled a group of volunteer “newshounds” who watched and taped Fox News around the clock, searching for patterns of bias. Recruited by MoveOn and working from private homes across the country, the newshounds identified coverage patterns and particular clips that became the backbone of Outfoxed. (This complex and unusual production process is documented in the “Behind the Scenes” bonus feature on the Outfoxed DVD.)

Editing down this mountain of Fox News footage was a colossal task that required far more man-hours and money than Robert had originally expected. Rather than being edited by one person, the film required five full-time editors, three working day shifts and two working nights. As production costs soared above $200,000, Robert took out a personal loan to fund the completion of the film.

Yet the risk of losing money was only one of Robert’s concerns. The big risk was a massive lawsuit by News Corporation, who had recently sued Al Franken for trademark infringement. Franken’s book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right was targeted by News Corp’s lawyers not for defamation or slander, but for appropriating the intellectual property of Fox’s trademarked phrase “Fair and Balanced.” News Corp attempted to suppress publication of Franken’s book, but was rebuffed by a federal judge who called the company’s legal action “wholly without merit, both factually and legally.”

If Fox News Channel was bent out of shape about the satirical use of its slogan in a book title, imagine how it might react to a sharply critical documentary that used dozens and dozens of clips from Fox’s copyrighted telecasts. Robert hoped to avoid a lawsuit on the grounds that his inclusion of the Fox News clips was protected by the doctrine of “fair use.” According to US copyright law, “the fair use of a copyrighted work for purposes such as criticism, comment, news report teaching, scholarship, or research, is not an infringement
of copyright.”

Attorney Lawrence Lessig volunteered to advise Robert on the legal issues raised by his film. The author of several books that explore the changing nature of copyright in a digital age, Lessig believes that fair use is an essential enabler of an open and free democracy. On July 11, 2004, Lessig posted an item on his blog about the political and legal issues raised by Outfoxed. “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.” (Until such time as the courts have decided a greater number of fair use cases involving documentary films, filmmakers should continue to seek legal advice about the particular content in each of their films.)

One of the factors News Corp would be considering in a decision whether or not to sue would be a desire to avoid the miserable publicity that the company suffered on the heels of their unsuccessful Franken suit. Standard procedure in corporate damage control is to avoid calling attention to your critics, and the Franken suit did exactly the opposite, serving as a highprofile launch to Franken’s book, which became a bestseller.

Again paired with MoveOn.org and the Center for American Progress, Robert planned to release Outfoxed on DVD on July 13, 2004, with hundreds of Sunday-night house party screenings occurring five days later. The goal was to keep Outfoxed under wraps until the absolute last moment, giving Fox News a minimal amount of time to plan a counterattack. Yet behind the scenes, Robert had lined up a powerful roster of partners for a multi-pronged, simultaneous unveiling. From media reform organizations to DVD publisher Disinformation, everybody was working together to create a high-profile “opening” for the movie, drawing on the various alternative techniques developed the previous year to promote Uncovered. Re-imagining a concept drawn from the marketing of bigbudget entertainment films, Robert and his team envisioned a splashy launch based on hard-news controversy rather than red-carpet glamour.

Robert and his partners successfully kept their battle plan under wraps, and the existence of Outfoxed was generally unknown until the June 11 publication of a Sunday New York Times Magazine story about Greenwald’s political filmmaking. Entitled “How to Make a Guerilla Documentary,” the article called Robert’s upcoming Fox News documentary “an obsessively researched expose,” and recapped Robert’s earlier achievements with Uncovered. Officials from Fox News declined to comment about Outfoxed for the Times Magazine story.

Yet Fox News spokeswoman Irena Briganti had plenty to say to Washington Post media columnist Howard Kurtz, who published two separate stories about Outfoxed on the same day as the Times Magazine piece. The larger story, published on page D1 of the Post, was a critical review of the film itself, yet the essence of the Fox News counterattack was contained in the smaller story on page D6. Entitled “Too Late to Comment?” the story raised the possibility that Times Magazine writer Robert Boynton had colluded with Greenwald to ambush Fox News. Apparently Fox didn’t like that they were first contacted by Boynton on June 29, giving them seventy-two hours to reply with a comment before Boynton’s July 1 deadline.

The notion of when exactly the Times first contacted Fox News about Outfoxed was a tempest in a teapot, but controversy breeds press coverage. On Monday, June 12, Robert and his partner organizations held an Outfoxed press conference at the Ritz Carlton Hotel in New York City, with dozens of major media outlets in attendance. Fox News handed out an angrily-worded statement about Outfoxed to journalists as they left the hotel. Upset about everything from late notification to footage theft to “liberal” fund-raising sources, Fox News made sure that journalists had a full range of exciting controversies to write about, proving that television people are far better at pumping up a story than tamping it down.

Outfoxed made its official premiere the very next evening, at the New School for Social Research in New York City. The premiere included a panel discussion on media bias featuring columnist Arianna Huffington, John Podesta of the Center for American Progress, and Eric Alterman, media columnist for The Nation. The Outfoxed DVD was commercially released by Disinformation on the same day. Riding a three-day wave of national publicity, Outfoxed instantly became the top selling DVD at Amazon.com.

At the end of the week, the grass-roots campaign kicked into action, as over 3,000 MoveOn members hosted Outfoxed house parties on Sunday, July 18. The plan was similar to the Uncovered house parties of November 2003, but this time journalists were paying attention. Writers from dozens of daily and weekly newspapers attended the house parties and published stories about the grass-roots enthusiasm for the film. On July 19, the San Francisco Chronicle reported that 382 house parties took place in the Bay Area alone.

Learning the lesson from the Franken fiasco, the mighty News Corporation kept its lawyers in check and took no legal action against Outfoxed, fearful of creating even more publicity about the movie. Yet the legendary anger of Fox News commentator Bill O’Reilly could not be contained.

On August 5, the night before Outfoxed made its theatrical debut in four cities, O’Reilly referred to Robert as a “smear merchant” on “The O’Reilly Factor,” his prime-time TV show. Five days later, the Quad Cinema in Manhattan reported that Outfoxed achieved the highest-grossing opening weekend in the theater’s thirty-year history, which motivated independent theaters in additional cities to exhibit the film.

The theatrical release of Outfoxed was unplanned, an outgrowth of a completely separate effort to bring Uncovered to a wider audience. Earlier in 2004, Robert had made a deal with Cinema Libre Studio to bring an expanded version of Uncovered to indie movie theaters in late summer. As Cinema Libre was ramping up for Uncovered’s August 20 theatrical debut, the Outfoxed controversy broke wide open. Cinema Libre’s publicity-savvy Phillipe Diaz decided to rush-release Outfoxed in theaters, even though it was already available on DVD. So instead of having one Greenwald film in theaters in the summer of 2004, Cinema Libre had two.

The synchronicity was perfect. The mainstream press, who had missed the boat on Uncovered the first time around, rediscovered the film in the context of Robert’s highly-publicized success with Outfoxed. In the summer of 2004, both Outfoxed and Uncovered were widely reviewed, and Outfoxed sold over 200,000 DVDs in the process, proving the commercial potential of Robert’s unconventional filmmaking.

Like his hero Abbie Hoffman, Robert had tapped into the spirit of a new era and created his own form of “political theater.” He appeared on dozens of television and radio programs and was lauded for both the message of his films and the innovative hybrid of alt-media and big-media he had used to find his audience. Sales of the two DVDs enabled Robert to pay back his loans. And the converted Culver City motel that was once a quiet production office for television “movies-of-the-week” had become the teeming hive of a new generation of media-activists, ready to attack whatever subject Robert dreamed up for his next political documentary.

1. Confronting the President
2. Refining the Model
3. Working with Nonprofits and Political Groups
4. Reaching Out to Organizations