Last week, I wrote about a new lawsuit filed by Sacha Baron Cohen in federal court in Massachusetts arising from the use of an image of his Borat character on a highway billboard to promote a cannabis dispensary.  That post can be found here.  

Now there has been another litigation development concerning Baron Cohen.  Last week, a federal judge in New York granted summary judgment in his favor dismissing a defamation claim brought by (former) US Senator and (former) Chief Justice of the Alabama Supreme Court Roy Moore and Moore's wife Kayla Moore arising from an interview that the Moore's were "tricked" into giving with Baron Cohen for an episode of his television program Who is America?   In that show, Baron Cohen played a variety of fictional characters who interviewed politicians and others for comic effect.  

In the episode in question, Baron Cohen interviewed the Moores while dressed up and acting in the role of fictional Israeli "Anti-Terrorism Expert" General Erran Morad.  The detailed facts of Baron Cohen's ruse and the circumstances of the interview are included in the  decision by SDNY Judge John P. Cronan which can be found  here.  In brief, Moore and his wife agreed to an interview with Genral Morad on the pretext that Roy Moore was to receive an award for his support of Israel.  The interview was scheduled not long after a 2017 senate campaign that Roy Moore lost and during which there had been widespread allegations against Roy Moore for having inappropriate sexual encounters with minors (claims that Moore has strongly denied).  

In the course of the interview, the General Morad character showed Roy Moore a wand-like device that General Morad claimed was used by the Israeli army to find tunnels used by terrorists. He then told Moore that the device also could be used to detected enzymes that are secreted by "sex offenders and particularly pedophiles."  As Baron Cohen moved the wand closer to Roy Moore it began to beep. Moore then denied the accusation that he was a sex offender and terminated the interview. 

In 2019, Roy and Kayla Moore sued Baron Cohen along with Showtime and CBS for defamation as well as for fraudulent inducement and intentional infliction of emotional distress.  In last week's decision, Judge Cronan (incidentally, a Trump appointee) dismissed all of their claims in their entirety.  The Court treated the claims by Roy and Kayla Moore separately because Roy Moore had signed a "Standard Consent Agreement" ("SCA") waiving the right to bring claims against the show's producer or anyone involved with the program, including the precise claims brought by Moore.  Kayla Moore witnessed her husband signing the SCA but did not sign it herself.

With respect to Roy Moore, the Court held that the SCA barred all of his claims.  In that agreement, he had specifically waived the right to sue for any claims including the specific claims he had brought against Baron Cohen and the other defendants.  The Court rejected Moore's claim that the SCA had been modified with respect to a breach of privacy claim relating to sexually oriented or offensive behavior, noting that Moore had not brought a breach of privacy claim. It also rejected Moore's contention that the waiver constituted an unenforceable general release, holding that the waiver in question was much more specific than language held in other cases to be enforceable.  The Court also rejected Moore's claim that he had been fraudulently induced into signing the SCA, noting that the document itself included an affirmation that he was not relying upon any promises or statements made by anyone about the nature of the program or the identity, qualifications or behavior of any individual who participated in the program.

Since Kayla Moore had not signed the SCA, the Court viewed her claims under the First Amendment, a task it did not need to undertake with respect to her husband because courts attempt, wherever possible, to resolve claims without having to reach constitutional issues.  The Court held that because the episode dealt with matters of public concern, the episode must be viewed under a heightened standard of scrutiny.  It further held that the statements in question could not be actionable unless they could be reasonably found to be stating actual facts.  Here, it was clear that the segment was "a joke and no reasonable viewer would have seen it otherwise."  For example, no reasonable viewer would see Baron Cohen playing the General Morad character and waiving a wand that supposedly could detect enzymes secreted by pedophiles as making factual statements about Roy Moore.  The Court also noted that throughout the various episodes of Who Is America?  Baron Cohen played "ridiculous characters conducting absurd interviews of seemingly unsuspecting individuals."  As an example, in one episode Baron Cohen playing the same General Morad character interviewed former Vice President DIck Cheney and got him to sign a supposed waterboarding kit.   

While defendants likely would have won on First Amendment grounds even if Roy Moore had not signed the SCA, it is far safer to have a strong and specific document in place so that the court need not reach the constitutional issues.  Also, the case illustrates why attention should be paid to the choice of law and venue clauses in agreements of the type presented to Roy Moore.   New York law has recognized the enforceability of waivers and releases of the type included in the SCA, and courts in New York have considerable experience dealing with claims of a similar nature to those brought here.  It is noteworthy that the case originally was brought in federal court in the District of Columbia but transferred  to the SDNY because of the venue provision in the SCA.  

The Moore's already have filed a notice of appeal, so it appears there will be further news on this case. But the Moores will have an uphill battle convincing the Second Circuit to overturn Judge Cronan's well reasoned opinion.

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